(n) Above, p. 975.

(o) See Re Popple & Barratt, 25 W. R. 248.

23 (2)

Discharge for impossibility of performance.

(p) Above, pp. 147 - 150, 914, 915.

(q) This point is established by-numerous decisions besides that cited in the next note; see cases cited above, pp. 147 - 150.

(r) Re Jackson & Woodburn's contract, 37 Ch. D. 44. (s) Above, p. 1016. (t) Above, pp. 907 sq. (u) Above, pp. 916 sq. (x) Above, p. 918. {y) Above, p. 921.

It has been decided that on a Vendor and Purchaser summons the Court may not only answer any question properly submitted to it, but may also direct such things to be done as would be the natural consequence of the Court's decision. If, therefore, a purchaser of land take out a summons claiming that his requisitions have not been sufficiently answered and that a good title has not been shown, and the Court uphold his contention (so that he would be entitled to rescind the contract, or to claim damages for its breach (c)), the Court has jurisdiction in the summons to make an order rescinding the contract and to order the vendor to return the deposit with interest, and to pay the purchaser's costs of investigating the title (d). And it has been further held that, if a vendor take out a summons, claiming that he has shown a good title, and the Court decide that he has not, the purchaser may in the same proceeding obtain an order for the rescission of the contract, repayment of the deposit with interest, and payment of his costs of investigating title (e). But it is considered that this jurisdiction does not go beyond authorising an order for payment to the purchaser of such expenses as he could recover at law either in the event of his rescinding the contract (f) or as damages according to the rule in Flureau v. Thornhill (g); and that if the purchaser claim substantial damages, as for a wilful breach of the vendor's duty to convey the land (h), he must assert his rights by action (i). It is a question whether the Court has jurisdiction on a Vendor and Purchaser summons, where an order is made at the purchaser's instance for the rescission of the contract, to make a further order establishing the purchaser's lien for the deposit and interest and his expenses of investigating title (k). It is laid down in the judgments of Pearson, J., in Be Yeilding and West-brook (l) and Chitty, J., in Be New Land Development Association and Gray (m), that the purchaser is entitled to such an order; but in the former case the order was not in fact made (n), and in the latter the order made was affirmed on different grounds and the point was not dealt with in the Court of Appeal. An order charging the vendor's interest was made in the Irish case of Be Priestley and Davidson (o); but in England it has not been the general practice for purchasers to claim or for the Court to make an order (p); and it does not appear that this question has ever been discussed in the Court of Appeal. We have seen, however, that the purchaser's right to a lien in case of his rescission of the contract is clearly established (q); and it seems to be just as much a necessary consequence of the rescission (r) as his right to recover the deposit, with interest, and his costs of investigating title from the. vendor personally. The point, therefore, seems to fall within the principle on which the jurisdiction was established to make an order on summons against the vendor personally for payment of these items (s).

Order for rescission of the contract and consequential relief.

(z) Above, p. 922. (a) Above, p. 941. (b) Above, p. 913.

(c) Above, pp. 937, 947.

(d) Re Higgins & Hitchman's contract, 21 Ch. D. 95; Re Hargreaves & Thompson's contract, 32 Ch. D. 454; Re Bryant & Barningham's contract, 44 Ch. D. 21S, 222; Re Marshall & Salt's contract, 1900, 2 Ch. 202, 206; Re Hare & 0'More's contract, 1901, 1 Ch. 93, 96.

(e) Re Higgins & Percival, 59 L. T. 213; Re Walker & Oak-shott's contract, 1901, 2 Ch. 383.

(f) Above, pp. 949, 950.

Whether an order can be made giving effect to the purchaser's lien.

(g) 2 W. Black. 107S; above, p. 961.

(h) See above, pp. 962,963,968.

(i) Re Hargreaves & Thompson"s contract, 32 Ch. D. 454, 457, 459; Re Wilsons & Stevens' contract, 1894, 3 Ch. 546.

(k) Above, p. 950.

(I) 31 Ch. D. 344, 345.

(m) 1892, 2 Ch. 138, 146.

(n) Seton on Judgments, 2269, 6th ed.

(o) 31 L. R. Ir. 122.

(p) See cases cited above, p. 1021, n. (d); Seton on Decrees, 2266, 2267.

(q) Above, p. 950.

(r) See above, p. 1021.

We have already pointed out (t) the curious consequences arising from the fact that whilst the applicant and respondent in a Vendor and Purchaser summons are in the position of parties to an action for specific performance as regards the determination of the particular question raised (u), they are in the position of parties to an action at law with respect to any consequential order for the repayment of the deposit.

It has been held that when a party to the contract has obtained in a Vendor and Purchaser summons an order in his favour, and the other party makes default in compliance therewith, the proper course for the former to take is to apply to the Court for the enforcement of the order, and not to bring an action for specific performance of the contract or for damages (x). Of course, any order made in a Vendor and Purchaser summons, that either party shall do some act or pay some money, may be enforced by appropriate process of execution (y). We may observe, however, that although the Court may make a declaration on such a summons that the vendor has sufficiently answered the purchaser's requisitions, and can make a good title to the property sold, it does not appear that the Court has ever made an order in these proceedings that the contract shall be specifically performed (z). And in default of any such order it is difficult to see what process of execution could issue to coerce a party who acted in disregard, not exactly of a declaration made against him, but merely of the logical effect of such a declaration. In one celebrated case, in which the Court of Appeal had made such a declaration on a Vendor and Purchaser summons, and the purchaser declined, on the ground of objections subsequently discovered, to complete the contract, the vendor brought an action for specific performance of the contract; and it does not appear that the propriety of this course was questioned (a). In that case the purchaser counter-claimed, by leave of the Court, to review the previous decision in the matter, on the ground that it was obtained in ignorance of material facts, which were then unknown to him and which he had subsequently discovered, but could not, with reasonable diligence, have discovered any earlier; and in the event he was enabled to avoid specific performance of the contract. If, however, the purchaser had had no such ground of defence it does not appear that the vendor could have taken any other proceedings than an action for specific performance, in order to enforce compliance with the logical result of the declaration that he had shown a good title.

Course to be taken on noncompliance with an order made in a V. & P. summons.

Where a declaration only is made.

(s) Above, p. 1021.

(t) Above, pp. 32, 165 sq.

(u) Above, p. 101G.

(x) Thompson v. Ringer, 29 W. R. 520, 1881, W. ST. 48.

(y) R. S. C. 1883, Ord. XLII. rr. 3, 7, 24; Seton on Judgments, 421 sq., 6th ed.

(z) See Seton on Judgments, 2264 sq., 6th ed.; and see above, p. 1021. And see the observations of Kekewich, J., in Re Wallias & Barnard's contract, 1899, 2 Ch. 515, 519 - 521, on the propriety of determining in a V. & P. summons the general question whether a good title has or has not been shown. The practice of so doing has, however, the sanc-sion of the Court of Appeal; Re Burroughs, Lynn & Sexton, 5 Ch. D. 601; Re Hargreaves & Thomp-son's contract, 32 Ch. D. 454.

An application by way of Vendor and Purchaser summons may be made in case of a contract to grant a lease of land (b), as well as of a sale of leaseholds (c). But such proceedings are not applicable to a voluntary gift of or a gratuitous promise to convey land. They may, however, be taken in the case of a contract for a nominal consideration (d).

Contract to grant a lease.

Voluntary gift.

(a) Re Scott & Alvarez's contract, 1895, 1 Ch. 596, 609, 610, 1895, 2 Ch. 603; above, pp. 167, 168.

(b) Re Lander & Bagley's contract, 1892, 3 Ch. 41.

(c) See above, p. 78, n. (k).

(d) Re Marquis of Salisbury, 23 W. R. 824.

Applications under the Vendor and Purchaser Act, 1874 (e), are made by summons intituled in the matter of the agreement and in the matter of the Act. The title of the summons should state shortly the date of the contract, the parties thereto, and the particulars of the property comprised therein (f). The summons may, if the judge thinks fit, he adjourned from chambers into Court and vice verm (g). Except in simple cases, such summonses usually are adjourned into Court.

Form of application.

Appeals from any order made in a Vendor and Purchaser summons must, except by special leave of the Court of Appeal, be brought within fourteen days. This period is to be calculated, in the case of an appeal from an order made in chambers, from the time when the order was pronounced or when the appellant first had notice thereof, and in all other cases from the time at which the order is signed, entered, or otherwise perfected; or, in the case of the refusal of an application, from the date of such refusal (h). Fourteen days' notice of appeal must be given (i). It is thought that orders so made are in general final and not interlocutory orders; so that, under the Judicature Act, 1894 (k), leave to appeal therefrom is not necessary. Such orders certainly appear to dispose finally of the rights of the parties (which is the characteristic quality of a final order (l) ) in every case where a general declaration is made in favour of or against the title (m), or where an order for the rescission of the contract is made (n), or where the logical result of the judgment given in the summons is to settle the question whether an action for specific performance or damages could be successfully maintained. As we have seen, a judgment of this kind appears to debar the parties from raising any question thereby determined in a subsequent action on the contract (o).

Appeals from orders on V. & P. summons.

(e) Above, pp. 1015, 1016.

(f) Seton on Judgments, 2269, 6th ed.; Daniell's Chancery-Forms, 1201, 5th ed.

(g) R. S. C. Ord. LIV. r. 9.

(h) R. S. C. Ord. LVIII. rr. 9, 15; Re Blyth & Young, 13 Ch. D. 416; Re Ricketts & Avent's contract, 1890, W. N. 16; Re Walker & Oakshott's contract, 1902, W. N.

147

(i) R. S. C. Ord. LVIII. r. 3.

(k) Stat. 57 & 58 Vict. c. 16, s. 1.

(I) Re Stockton Iron Furnace Co., 10 Ch. D. 335, 345; Bozson v. Altrincham Urban Council, 1903, 1 K. B. 547, 548.

(m) Above, pp. 1016, 1023 & n. (z).