§ 1461. But conditions for forfeiture of the deposit to the vendor, (o) or its repayment without interest or costs, (p) cannot be enforced by a vendor who is unable to make a good title.

§ 1462. It may be convenient briefly to advert to the jurisdiction in respect of part payment of the purchasemoney and the lien for it under the practice of the Court of Chancery.

§ 1463. Where the vendor was the plaintiff, and failed in his suit for specific performance, the court might dismiss the bill, and order the plaintiff to return the deposit with interest at four per cent.;(g) or it might declare the defendant entitled to a lien for these amounts and the costs of suit, and dismiss the bill subject to this declaration.(r)

§ 1464. But the proceeding of the court in this respect was discretionary, and depended on circumstances: for the court, by dismissing the bill, sometimes meant to leave the parties to their remedies at common law, in which case it did not order the return of this deposit. (s)'

§ 1465. With regard to the power of the Court of Chancery to give the purchaser relief in respect of his deposit where he was the plaintiff, and specific performance was refused, considerable variation took place.(t) But in Todd v. Gee, (u) Lord Eldon, after fully considering the earlier cases, held that, except in very special cases, a bill could not be filed asking the performance of a contract, or, in the alternative, an issue or an inquiry with a view to damages. This decision was followed in many subsequent cases.(v)

1466. But if the plaintiff prayed not the mere repayment of money but a lien upon the land, he was seeking for

1 A vendee of land, in possession, paid part of the purchase money under the contract, but on being sued for the residue by the vendor, set up in answer the statute of frauds, and defeated the action. Held, that this was an abandonment of the contract, which precluded him from a decree of specific performance, and entitled him to a restitution of his purchase money. Payne v. Graves, 5 Leigh, 561.

equitable and not merely legal relief, and he could maintain his bill for specific performance, or, in the alternative, for a lien on the vendor's interest and the sale of it accordingly ;(w) or he might enforce his lien by means of a supplemental bill.(x)

§ 1467. Where a contract was rescinded on the ground. of fraud, surprise, or misrepresentation, and a deposit had been paid, it was within the jurisdiction of the court, when decreeing rescission, also to order the deposit to be returned.(y)'

(w) Wythes v. Lee, & Drew., 396, compromised on appeal, 25 L. J. Ch, 389. Cf. Blore V. Sutton, 3 Mer., 237.

(x) Westmacott v. Robins, 4 De G. F. & J., 390.

(y) Torrance v. Rolton, L. R. 14 Eq., 124, 135; affirmed L. R 8 Ch., 118

1 Interest where the purchase price has not been paid or tendered.] The purchase price belongs to the vendor from the time fixed for the completion of the contract. He is entitled to interest upon it, provided it is not then paid or tendered. Hart v. Brand, 1 A. K. Marsh., 161; Breckenridge v. Hoke, 4 Bibb, 273; Drake v. Barton, 18 Minn., 462; see, also, Warrall v. Munu, 38 N. Y., 137; Gillet v. Maynard, 5 John, 85; Jones v. Jones, 49 Tex., 683.

Rents and profits.] The property sold belongs to the vendee from the time fixed for the completion of the contract, and he is entitled to the rents and profits from that time. The vendee died, leaving minor heirs, after he had paid a portion of the purchase money and taken possession of the estate. After his death the vendor re-entered, wasted the property, and sold it. In an action for specific performance, held, that the vendor should pay the highest rental value of the land since his re-entry. Cole v. Tyson, 8 Ired.'s Eq., 170. "Whatever may be the rule where a trustee has not himself occupied and enjoyed the trust estate, but has received rents from it, justice and equity demand that where he has wrongfully excluded the true owner, and has himself occupied and enjoyed the fruits of the estate, he shall at least account for its rental value." Per curiam, Henlen v. Martin, 53 Cal, 321. In one case the interest had accumulated until it amounted to considerably more than the rents and profits, and it was held that the vendor should be left in the enjoyment of them until a good title was shown, and that then he should receive interest on the purchase money, and the vendee reasonable rents and profits, notwithstanding, by reason of a fire which destroyed the building, no rents were received. Lombard v. Chicago Sinai Con., 75 Ill., 271. The owner of an undivided half of an estate, contracted to convey the whole Held, that if the vendee elects to take what the vendor can convey, he need pay or tender only one-half the contract price, and the vendor is not entitled to any portion of the rents and profits accruing subsequent to the making of the contract. Marshall v. Caldwell, 41 Cal., 611.

PART VI.

OF SOME. CONTRACTS IN PARTICULAR.

CHAPTER I.

OF CONTRACTS FOR THE SALE OF SHARES.

§ 1468. The subject-matter of this chapter is contracts for the sale of shares between an existing and an intending shareholder, not contracts for the taking of shares from a company by an applicant. Contracts of the latter kind have been referred to in a previous part of this treatise. (a) § 1469. The vendor or purchaser of shares may generally, as we have already seen, (b) maintain an action for the specific performance of the contract:(c) he will be entitled to a direction that the defendant execute a proper deed of transfer and concur in all steps necessary to procure its registration, and also, in the case of the vendor being plaintiff, to a declaration of his right to indemnity in respect of calls on the shares accruing after the purchaser has become the owner in equity :(d) and where the circumstances of the case do not demand the whole of this relief, the plaintiff may receive so much as suits the necessities of the case: so, for example, the decree or judgment has, in some cases been merely one for indemnity.

1470. The courts of common law having recognized the liability of the purchaser to indemnify the vendor, actions were, before the judicature acts came into operation, maintained on this liability in those courts. (e)

§ 1471. Contracts of this description are, for the most part, made on the stock exchange, and it has been long established that, in such cases, the contract must be held to

(a) Supra. §§ 55, 283, 285. (b) Supra, § 54.

(c) As to proceedings under the Companies Act, 1862, s. 35, see supra, §§ 1111, 1112.

(d) As to the form of the judgment in such a case, see Evans v. Wood, L. R. 5 Eq, 9; Paine v. Hutchinson, L. R 3 Ch., 338. See, also, Sheppard v. Murphy, I. R 1 Eq., 490; 2

Eq., 544; 16 W. R., 918; approved in Cam. Scac, Grissell v. Bristowe, L. R. 4 C. P., 36, 151.

(e) Walker v. Bartlett, 18 C. B., 845, which must be taken to overrule Humble v. Langston (7 M. & W., 517) on the point of indemnity. See, too, Kellock v. Enthoven, L. R., 8 Q. B., 458; affirmed, 9 id., 241.

be made with reference to the customs of that body, or such of them as are not unreasonable or otherwise illegal ;(ƒ) the customs being partly written and partly unwritten, and liable to change from time to time, and to be proved afresh, and possibly differently, in each succeeding case.

But contracts for the sale of shares are sometimes made off the Stock Exchange, and then they are not regulated by any special customs, though they are naturally construed with reference to the constitution of the company, as established by its special act, charter of incorporation, or other constituent instrument.

§ 1472. In order to comprehend the nature of contracts on the Stock Exchange, it must be observed that the members of the Stock Exchange consist of two classes, brokers and jobbers: that a broker is an agent of a vendor or purchaser of shares or stock; that a jobber is a dealer on his own account in the like commodities, who buys them for the purposes of re-sale at a profit: that on the Stock Exchange there are two classes of contract, those for cash and immediate execution, and those for the "account:" and that, as regards the dealings for the account, there are three successive days or times which, according to the customs of the Exchange, govern the execution of such contracts, viz.: first, the name day, when a purchasing broker or jobber has to give the name of the original or of a substituted purchaser to the vendor's broker; secondly, the account or settling-day, which is the day after the name day-on this day the price has to be paid to the vendor's broker; and thirdly, a period of ten days after the account day, allowed for the completion by registration of the transfers of the shares, where registration is required.

§ 1473. Bearing these facts in mind, the reader will be able to follow the practice on the Stock Exchange, which was fully stated in the evidence of Mr. De Zoete read by Lord Cairns in addressing the House of Lords in the case of Nickalls v. Merry :(g) "In the case supposed, where the jobber would stand as purchaser, he would on the day preceding such account day (which was usually called the 'name day') be bound to pass to the broker a ticket containing the (g) L. R. 7 H. L., 539-541. See, too, ex parte Grant, 13 Ch. D., 667.

(f) Nickalls v. Merry, L. R. 7 H. L., 530.

name of a person, or of several persons, as the purchaser or purchasers of the said shares; or he might, if he pleased, pass his own name as such purchaser, in which latter case only would he have been bound himself to take to the shares. If the jobber had failed to pass to the broker such a name or names by the name day, the selling broker could have sold out the shares against him, and have compelled him to pay any loss thereon. Until the name day it was not seen who might stand ultimately either as purchasers or sellers, or, in other words, who might be the persons to transfer or to take transfers of shares, and until then a jobber might have had a great many transactions both of buying and selling with the same brokers or jobbers, or with various brokers or jobbers. On the name day, in the case supposed, if the jobber having purchased had sold again, a ticket, containing the name of the person to whom the shares were to be transferred, would have been issued by and passed on from the ultimate purchasing broker to his seller, and so on through the hands of the other intermediate sellers and buyers in succession, who, whether acting as jobbers or as brokers, had dealt in the shares, until it reached the hands of the original selling broker. Every member passing a ticket was required to write on the back of it the name of the member to whom it was passed; such ticket would also have contained the amount of purchasemoney agreed to be given for the shares by the ultimate purchasing broker, and also a note that he would pay the same. So many transactions of this kind took place during the account, that on the name day the ticket of necessity only remained in the possession of an intermediate jobber or broker for the time required to take the particulars of it. It sometimes happened that the same ticket passed through the same member's hands several times in fulfillment of bargains made with other members, and, as a matter of fact, he had neither the opportunity, time, nor the means for making inquiries respecting the name so passed. The original selling broker would not have been bound to deliver a transfer of the shares to the ultimate purchasing broker until the expiration of ten days after the account day, and during these ten days the said purchasing broker could not have bought in the shares against the seller. During this time it