payment to the plaintiff of the deposit, with interest, the costs of investigating the title, and the costs of the action, as between attorney and client.

No. VIII.

Jones v. Dyke and others (p), Hereford summer assizes,
cor. Macdonald, C. B.

The circumstances of the case were shortly these. Some estates in Wales having been advertised for sale, the plaintiff came to town, and after some treaty with the defendants, who were the auctioneers employed, he agreed to purchase the estate in question, at 9751. and it was agreed that he was to pay the deposit in nine days, and to give his note for it at that date, which he accordingly did. Tuchin, one of the defendants, by the desire of his partner Dyke, gave the plaintiff a receipt for the deposit, and signed a printed particular, which together amounted to an agreement in writing.

In a few hours after this transaction, Dyke and Tuchin called on a friend of the plaintiff's to acquaint him that they had just received a letter from Wales, stating that the estates were sold for more money, and requesting the particular and receipt to be returned; and the plaintiff refusing to relinquish the agreement, and having immediately returned to Wales, they by the next post sent to him his note of hand, and a particular signed by him, both of which he instantly returned.

The 100l. was tendered in payment of the note, and refused: the residue of the purchase money was prepared in time, and deposited at a banker's.

The plaintiff filed a bill in equity against the owner of the estate, and his trustees for sale, who denied the authority of the defendants to sell, in consequence of which the plaintiff was advised to dismiss his bill.

The plaintiff then brought an action against the defendants, in which he proved by two witnesses that the estate purchased was worth 2,1177. 10s. so that he lost upwards of 1,140l. by breach of the agreement.

It appearing that the defendants had no authority to sell, the plaintiff had a verdict by consent, for 261 7. the Judge thinking (p) Vide supra, p. 37.

the

the items of which that sum was composed reasonable, but the

plaintiff did not obtain any damages for the loss of his bargain.

The sum of 2617. was thus made up:

Costs of the plaintiff's solicitor

Costs of the trustees in equity, about

days,}.

Interest of 975 l. from April 1804 to April 1807
Journies to London and Llandilo, about 20 days,
horse-hire and travelling expenses -
Journey to London

£. s. d.

47 194

30 146 5

21

15 15

£.260 19 4

No. IX.

Wyatt v. Allan (q), Reg. Lib. B. 1777, fol. 576.

The bill was filed by Wyatt, charging that he, as agent for the defendant Allan, purchased an estate by auction, but that the defendant having denied the commission, he himself was forced to complete the purchase. The purchase money was 4351. The defendant by his answer denied that he employed the plaintiff to purchase the estate.

The Chancellor directed an issue to try the fact, and that if the jury found that an authority was given by Allan, they should indorse on the postea to what amount such authority extended. The jury found that Allan did give an authority to the extent of 400l. Upon the cause coming back on the equity reserved, the defendant was ordered to pay the plaintiff the 400 l. and the plaintiff was to assign the estate, and the defendant was to pay the costs both at law and in equity.

No. X.

Sir John Morshead and others v. Frederick (r) and others. Ch. 20th February 1806.

Certain estates of the late Sir John Frederick were devised to trustees upon trust, by mortgage or sale thereof to raise 34,000l. for the benefit of his two daughters, Lady Morshead and Miss Thistlethwayte. Part of this estate consisted of a house in the

() Vide supra, p. 38.

(r) Vide supra, p. 61.

occupation

occupation of Smith, Payne and Smith, the bankers. In 1751, a ground lease of this house was granted for sixty-one years, at 56 l. a year. The representative of the lessee assigned the lease to Smith and Company, subject not only to the original ground rent of 567. a year, but also to an additional rent of 210l. A bill was filed for carrying the trusts of Sir John Frederick's will into execution. With the approbation of all parties, the house in question was offered for sale, and represented as subject to the ground lease at 561. a year. Smith and Company employed an auctioneer to enter into a treaty with the plaintiff's solicitors for the purchase of the house, and he was informed by them that it was subject to the lease at 567. a year. The auctioneer valued the house as being subject to the lease, and to no other rent, charge, or incumbrance, at 6,150l. and verbally agreed with the plaintiff's solicitors for the purchase by Smith and Company of the house at that sum: the contract was referred to the Master, who approved of it, and by an order in the cause, Smith and Company were directed to pay the purchase money into Court, to the credit of the cause, and it was ordered that they should be let into receipt of the rents from the last quarter day. The title was, pproved of on behalf of the purchasers, and the money was paid into the bank according to the order. A few months afterwards, and before the conveyance was executed, application was made to Smith and Company for payment of the rent of 210l. to the person entitled to it. Upon this, Smith and Company insisted upon an abatement in the purchase money, which the plaintiffs would not accede to. A motion was then made to the Court by Smith and Company, that the money paid into the bank might be repaid to them, and the contract for the purchase of the house rescinded. In support of this motion, the auctioneer swore, that he valued the house as subject to the 561. a year only, and that he was ignorant of its being subject to any other rent or outgoing. The solicitor for Smith and Company swore, that no notice was taken in the abstract of the lease, by which the 2107. a year was reserved. One of the bankers swore, that when the money was paid into the bank, and when the valuation was made, he and his partners believed that the auctioneer had been made fully acquainted with all the charges, whether consisting of rents or otherwise, which in any ways affected the house; and that his not being made acquainted with the rent of 210l. was occasioned by some undesigned omission or mistake.

In opposition to these affidavits, the solicitor of the plaintiffs swore, that he had been in receipt of the rent of 561. a year nearly thirty years, which had been paid by Smith and Company since 1797, and that he had never heard that the house was ever granted by any under lease, or was made subject to any other rent than the rent of 56 l. until long after the sale to the bankers. And that upon inquiry he found, that the rent of 2107. had been paid by the bankers themselves ever since they purchased the lease.

The motion came on before Lord Eldon, who expressed an opinion in favour of the purchaser's right to rescind the contract, but did not decide the point. It afterwards came before Lord Erskine, who held this to be a proper case for the interference of equity, on the ground of mistake, and accordingly granted the motion. The circumstance of both rents being payable by the purchasers, his Lordship thought immaterial, as it appeared, that they had not communicated that circumstance to their broker, and the magnitude of their concerns might easily account for the omission. It could not be imagined, that any man would willingly conceal such a fact from a broker employed by him to value any property he wished to purchase; and it was equally absurd to suppose, that if a broker, in valuing any property, was ignorant of the existence of an additional rent of 2007. no relief lay against such a mistake in a court of equity.

No. XI.

Ex parte Tomkins ($), L. I. Hall, 23d August 1816.

A mortgagee obtained an order for sale of the estates under a bankruptcy. The assignees, without leave of the Court, appointed several puffers to bid, and two lots were knocked down to them. Lord Eldon determined that they must be held to their bargain, although they swore that they believed there was no real bidder. And in answer to an application, that if there should prove to be a real bidder, the assignees might only be compelled to pay the price which he bid, the Lord Chancellor said, that although it was a hard case, they must pay the sum at which the lots were knocked down. The order was for a

(s) Vide supra, p. 62.

sule,

sale, and they were not authorized to buy the estate in; their biddings might have prevented the estate from selling to a bonâ fide bidder, and it was impossible for the Court to say that the estate would not have fetched more than the last real bidding, if the puffer appointed by the assignees had not afterwards bid. A majority of the creditors in such a case could not bind the rest, and if assignees choose to act, they ought to procure an indemnity from the creditors.

No. XII.

Observations on the Annuity Act (t).

To this passage a note was added in a former edition, in which it was contended, that the 17 Geo. III. c. 26, commonly called the Annuity Act, extended to money considerations only, notwithstanding the case of Crosly v. Arkwright, 2 Term Rep. 603. The authorities relied on, were Crespigny v. Wittenoom, 4 Term Rep. 790; Hutton v. Lewis, 5 Term Rep. 639; Ex parte Fallon, 5 Term Rep. 283; and Horn v. Horn, 7 East, 529; to which might be added, Doe v. Philips, 1 Taunt. 356. But the point is not now of much importance. The decisions under the Annuity Act had gone far beyond the letter, and in many cases even beyond the spirit of the law: and perhaps there was not any act in the statute book on which so many cases had been decided within any thing like the same space of time. The expense of the memorial was very considerable, and the effect of the decisions, by increasing the risk of the transaction, drove fair purchasers out of the market, and lowered the price of life annuities: first, because the number of buyers was small; and secondly, because the purchasers required to be paid not only the common rate of annuity interest, but also the value of the risk of the transaction being void under the act. The Annuity Act, after having been thirty-five years in operation, was repealed by the 53 Geo. III. c. 141, except as to annuities granted before the passing of the repealing statute; and other provisions were substituted in lieu thereof.

The first section repeals the old act.

The second section requires that within thirty (in the old act it was twenty) days after the execution of every deed, bond,