veyance had been made, but the contract was admitted, and the title was not disputed. The Court made the order for payment of the money in a month, as the defendant was in possession and working the mines. (a)

A purchaser under a decree, taking possession, will be ordered to pay the purchase money into Court, unless he entered with the express consent of the Court. (b)

Although the purchaser is not bound to acquaint a vendor with any latent advantage in the estate, yet any concealment for the purpose of obtaining an estate at a grossly inadequate price may be deemed fraudulent. (c)

Specific performance of a contract for the sale of lands in which there is a reservation of mines will be decreed, if there be a great improbability of the purchaser being disturbed.

In a case of this kind, it was objected that there was a reservation in a former grant from the crown, of tin, lead, and all royal mines. It was reported by the master, that there was a probability of the existence of such mines, and that the vendor could not make a good title. But it was held, at the hearing, by Lord Hardwicke, that the objection could not be sustained. It was the business of the Court, he observed, to carry such agreements into execution, and it must govern itself by a moral certainty; for it was impossible, in the nature of things, that there should be a mathematical certainty of a good title. There was no pretence that there had been any search for royal mines for one hundred and eleven years, and, upon examination, the probability was great there were no such mines. After denying the power of the crown, where there is only a bare reservation without a right of entry, to work for mines, (d) he said, it would be of mischievous consequence to allow such an objection to a title, especially as all grants from the crown have, for the most part, such a general reservation; but the fact in the present case was, that there had never been an exertion of this right in a single instance since the grant, and in all probability there never would. (e)

In like manner, specific performance of a contract for the sale of mines. will be decreed, if there is no probability of the purchaser being disturbed by actions of trespass in the course of his operations. A purchaser, on one occasion, of some valuable mines, refused to perform his contract because the mines were situate under a common, and consequently he might be subject to actions for sinking shafts to work the mines. But Lord Eldon, having shewn the improbability of any obstruction from the commoners, said, that in case such an action were brought, he should think a farthing damages quite enough, and decreed a specific performance. (ƒ)

(a) Buck v. Lodge, 18 Ves. 450.

(b) See 1 Sug. Vend. and P. 359, 10th ed.

(c) Deane v. Rastron, 1 Anst. 64. See Turner v, Harvey, Jac. 169. Brealey v. Collins,

You. 317.

(d) See chap. i.

(e) Lyddal v. Weston, 2 Atk. 19.

(f) Anon. Chan. 7 Sept. 1803. cited in Sugden's Vend. and P. vol. 2, p. 184.

It has been observed, that this case must have turned upon the improbability of the purchaser being disturbed, and that otherwise it has gone to the utmost verge of the law; for although only trifling damages could be recovered, yet that would be no ground for a non-suit, and the estate might, therefore, subject the purchaser to litigation, whenever malice or caprice might induce any of the commoners to commence actions against him. (a)

If, however, there be a distinct reservation of the mines, it was held by Sir William Grant that the purchaser would be entitled to compensation, even if the reservation is of an old date, and the right under it has never been asserted by any actual attempts to work the mines. In the case alluded to, the reservation was contained in a deed dated in 1704, and comprised all the springs, veins, and mines of salt in certain parts of the property, with full liberty, without paying any thing, to sink pits, and do all things neces sary for carrying the minerals away. This reservation was objected to by a purchaser, as a ground for compensation, and the Master of the Rolls decreed him compensation. After noticing the fact of the ownership of the mines of salt, and that no inference of release or abandonment could be drawn from their non-user, Sir William Grant observed, that the case of Lyddal v. Weston, (b) instead of being an authority for the defendant, appeared to afford an argument by implication against him. The grounds of that judgment were that, upon examination, the probability was great that there were no mines; and that the Crown having merely reserved the mines without a right of entry, could not grant a license to enter and work them. That position was liable to considerable doubt; (e) but Lord Hardwicke thought it necessary to assume it, before he could determine against the validity of the purchaser's objection. In the present case, it was not alleged, that there was no probability of mines upon the estate; it was rather admitted, that there were, and there was a reservation of a right of entry, upon the want of which Lord Hardwicke had laid stress. The defendant, he added, chose to consider this, not as an objection to the title, but as a ground for compensation, and he was entitled to it. (d)

It may evidently be gathered from the judgment of Sir William Graut, in the above case, that if the purchaser had altogether resisted the performance of his contract, he would have been allowed to do so. It has been clearly shown that, in general, a right of entry is, in the absence of stipulation to the contrary, incident to the right of mines. (e) The doctrine adopted by Lord Hardwicke upon this subject, and which was repudiated by Sir Wm. Grant, with respect to royal mines only, cannot be supported with respect to any mines. One of the main reasons for his decision, therefore, in Lyddal v. Weston, is defective, and that decision must rest, and rest safely, upon the (a) Ibid.

(d) Seaman v. Vaudrey, 16 Ves. 390,

(b) Supra.

(c) See chap. i. (e) See chap. ii.

evidence of the improbability of there being mines to create any disturbance to the purchaser. Such an improbability, however, should not rest upon slendor and inadequate evidence. If there is a legal reservation of mines, and mines are supposed, or even suspected to exist, it would be hard to force a title upon a purchaser, which might expose him to the complete waste of his estate. There was, in the case of Seaman v. Vaudrey, a stipulation in the deed of reservation, that the right to work the mines was exercisable without incurring any liability for damages. No compensation short of the amount of purchase money, might satisfy such a case as this. In such instances, extraordinary caution is required, and still stronger evidence of the non-existence of mines should be adduced, in order to compel the performance of a contract. It is quite enough, in all cases, where there is no probability of there being any mines, that the purchaser should be subject to the caprice or ignorance of individuals, who, in spite of appearances or the dictates of experience, may choose to embark upon a wild adventure in search of minerals which are not to be found. The fact of improbability, therefore, should be based upon such competent and substantial evidence as may justify the Court in exposing a purchaser to such a risk.

IV. On the other hand, if a vendor make false representations to a purchaser with respect to the advantages of an investment, it will amount to fraud, and the purchaser may be relieved in equity by a decree for setting aside the contract, or even the conveyance. (a)

In the great case of Small v. Attwood, (b) the vendor was charged with making or authorizing false statements, upon a treaty for the purchase of extensive iron mines and iron works, with respect to the cost of manufactured pig iron. The contract was silent upon the subject. A difference of 16s. per ton was stated to exist between the explanations of the defendant, and the actual cost. This would have produced a difference of £14,000 a year in the account of the concern. Similar mis-statements were charged with respect to the conversion of the metal into refined iron, blooms, and rods. Lord Lyndhurst, C. B., decided, that a case of mis-statement with the knowledge of the party, in other words, that a case of fraud had been proved against the defendant, and that the contract should be rescinded. But it was ultimately decided in the House of Lords, that such a case was not sufficiently proved.

In the above case, there was a disturbance of the stratification in an important part of the coal mines, amounting either to an actual fault, or producing similar consequences. The defect was discovered some months previous to the conclusion of the negotiation. The defendant did not sanction this concealment, but he was aware of the defect, and evaded the questions. put with respect to the mine being a perfect mine. But the learned Judge

(a) Edwards v. M'Leay, Coop. 308.

(b) 1 Younge, 407.

held, that the purchasers, in taking possession, must have known immediately the circumstances connected with the fault, and that it was too late, after the expiration of six months, to file a bill for setting aside the contract. (a)

It is no objection to a bill for setting aside a contract that the purchase rs have been in possession, and have made great alterations in the property. It is enough that they act fairly in the management of the property, and take the natural exercise of the rights of supposed owners. (b)

V. The purchaser of an estate sold under a decree in Chancery is enti tled, as a general rule, to be let into possession from the quarter day preceding his purchase, on paying the purchase money before the succeeding quarter day. (e) But this rule has been held to be inapplicable to the case of a colliery, in which the accounts of the concern were settled monthly, and in which there was no such thing as a quarter day; for the profits of such property may produce more in one quarter than in the preceding ten years. A colliery is a trade, and not merely a property in land. The purchaser was, therefore, declared to be entitled to the profits from the commencement of the month in which he purchased, paying his purchase-money in the course of that month. (d) A person is not considered to be an absolute purchaser until the confirmation of the master's report. (e)

In the above case of Wren v. Kirton, a colliery had been put up to sale under a decree, and £23,000 was offered by a bona fide bidder. The sale was defeated by setting up a fictitious bidder. The property was again put up three times. On the two first occasions £12,000 and £6,000 only were offered. On the last occasion it was sold to a trustee for the agent and manager of the colliery for £15,000. The motion to confirm this sale was opposed.— Lord Eldon observed, it was a very difficult and important case. If it had been an original sale, and the agent had purchased in the name of another person, very slight circumstances would have induced him, even at some risk, to have set that aside-as it was the duty of the agent, if he meant to bid, to furnish all the knowledge he had to those who were to sell. A reg ular proceeding in the master's office, which produced a bidding of £23,000 by a responsible person, was met by a very improper transaction in setting up a man of straw to defeat the sale, which occasioned the loss. In general, the Court will at some risk put the property up again, if the sale has not been properly conducted. (f) The difficulty was the danger of further loss by the re-sale. He added, he would not hesitate to open the sale, if the least advance upon £15,000 was offered; but without such an offer, there was nothing leading him to suppose, it would ever again reach the sum originally bid. An order was accordingly made, but with considerable reluc

(a) Ibid, 503.

(b) Ibid. 506.

(c) Marfill v. Rudge, 2 You, and C. 566,

(d) Wren v. Kirton, 8 Ves. 502. Williams v. Attenborough, Turn. and Russ, 70, (e) Twigg v. Fifield, 13 Ves. 517. Garrick v. Earl Camden, 2 Cox, 231.

(f) See Watson v. Birch, 2 Ves, Jun. 53.

tance, to confirm the report, unless before the first seal an application should be made to open the biddings, with security to answer the difference between the produce of the re-sale, and the sum of £15,000. (a)

The practice of opening biddings in sales under decrees in Chancery has often been justly reprobated. On one occasion, Lord Eldon said, during a period of nearly half a century which he had passed in the Court, he had heard one and all of its judges lament the introduction of the practice. (b) It is now, however firmly established by numerous cases, and almost daily experience.

But the rules with respect to opening biddings do not apply to the sales of mines. In the case of a colliery, an order for opening the biddings was made by the Vice Chancellor, but it was discharged by Lord Eldon, who observed, that land kept generally the same value; but collieries were liable not only to fluctuations in value, but to destruction; they were like land in a country liable to earthquakes. A gain, upon a re-sale of the property the purchaser might be tired of his bargain before he has completed his pur chase; and although the Court might compel the final bidder to pay the money, the process was such, that in great many cases, it was more for the interests of the vendors to abandon the bargain, than to put in force the process of the Court. Not even a bona fide bidder can, in any case be said to have any right to open the biddings.-The question was, whether regard being had to the nature of the property, the circumstances of the case, and the general interest of the suitors of the Court, not to the interests of purchasers, so much advantage was held out as to induce the Court to open the biddings. (c)

In the above case, the purchase could not be confirmed for a considerable time, and it became necessary to take into consideration who should have the intermediate management. It was finally agreed that the purchaser should work the colliery under the superintendance of the trustees. It was observed by the Court, it would have been folly in the purchaser if he had not insisted on having in some measure the management; for if, between the day of bidding and the confirmation of the purchase, the value of the mine had fallen from accidental causes injurious to the working, from some rival coal mine, or a destructive inundation, still, if the title had been completed at the time his report was confirmed, he would have been compelled to take the property without entering into the question, whether the management had been advantageous or disadvantageous. It was added that if the management had been advantageous, to discharge a purchaser under such circumstances, upon giving him his costs merely, without making some allowance for the expences incurred in the management, would be treating

(a) 8 Ves. 502.

(c) Williams v. Attenborough, Turn. and Russ. 70.

(b) Turn. and Russ, 75.