on July 26th, 1835, having been born on the 16th of March, 1819. The defendant stated that she had not, and was informed and believed, that Mr. Cookney had not at that time, nor before the sum of 1501. was paid to the plaintiff, any reason to believe or suspect that this register was not true and correct, and did not duly refer to and describe the plaintiff and his age, as by him stated; that she believed that some time in the year 1835 (but at what precise time, or on what account, or for what purpose, she did not then. remember), she wrote or applied to a surgeon, named Mr. Mason, who, in answer to such application, wrote to her the following letter: 66 'MADAM,-In reply to your note of yesterday, respecting the birth of Master Henry, the event took place at No. 17, Devonshire Place, Vauxhall, in the parish of Lambeth. Mrs. Fowler was the nurse, and is to be found at Mr. Dalman's, Mansion House Street, Kennington. Any further information that I can give, please to command from "Your very obedient servant, "MICHAEL L. MASON." That, on January 22nd, 1848, some time after the bill in this suit was filed, and in consequence of it, the defendant wrote to Mr. Mason, requesting him to furnish the information which he had offered in 1835; and that, on the 24th of January, 1848, she received by post from Mr. Mason the following letter: “DEAR MADAM,—I hasten to reply to your note of the 22nd inst., although at a loss to conjecture by what means a letter of mine is in your possession. I delivered Mrs. Wright of a son on the 26th of June, 1821, (consequently he is now in his twenty-seventh year), at No. 17, Devonshire Place, Vauxhall, leading from Kennington Lane into Kennington *Oval, in the parish of St. Mary, Lambeth, Surrey. I recommended Mrs. Fowler as nurse; she is still alive, and residing with Mr. Dalman, Mansion House Street, Kennington, in the parish of St. Mary, Lambeth." The defendant proved the execution of the release; but no other evidence was gone into. Mr. Batten, for the plaintiff. Mr. Wigram and Mr. R. Harrison, for the defendant, [cited WRIGHT r. L SNOWE [ *323 ] 1 Hartley v. Wharton (1), Stikeman v. Dawson (2), Clark v. Cobley (3), THE VICE-CHANCELLOR : It is too late to deny that an infant may commit a fraud to the prejudice of his civil rights; but what amounts to such a fraud is often a delicate question. Mr. Batten, in reply: Borthwick v. Carruthers proceeded on the ground that the fact there was within the defendant's own knowledge; but that is not so in this case. Cory v. Gertcken was a case of fraud. Overton v. Banister is in favour of the plaintiff. There the infants executed releases, reciting that they had attained twenty-one; but that did not prevent their having an account of the portion of a legacy which they had not received; here nothing is proved to have been received by the plaintiff, and he is entitled to the general account. THE VICE-CHANCELLOR : If a person will make a positive assertion, and another act upon it, it is often immaterial between the two whether the former was aware that it was untrue. In this case, it is not proved that the plaintiff was a minor at the time of the transaction. Possibly, however, I might, but for the conduct of the plaintiff, have directed a reference to the Master, as to the fact of infancy; but the conduct of the plaintiff has been such as to preclude him from any right (if he otherwise would have had any) to such an inquiry. The release must not be disturbed. But if the plaintiff insists on an account of any personal estate received by the executrix, not covered by the release, I am probably bound to direct it. Decree for an account accordingly. Costs reserved. GEE v. PEARSE. (2 De G. & Sm. 325-346.) Under two agreements for sale, (one of which was to be completed on the 1st of June, and the other on the 29th of September, both in 1846,) disputes arose upon the title, and upon certain valuations incident to the purchase. The conveyances were engrossed on the 4th of January, 1847, and the vendor made two requisitions to the purchaser to complete the first on the 11th of January, and the second on the 25th of January, 1847, and intimated that non-compliance with the requisitions would be treated by the vendor as a breach of the agreements. The purchaser did not comply; but his solicitors reiterated claims to certain deductions and abatements. The disputes continued until after the 13th of February, 1847, when the purchaser filed a bill seeking specific performance: Held, that the circumstances and delay did not constitute a case of such default by the plaintiff as to preclude him from a title to specific performance; but, it appearing on the correspondence that the claims of deduction and abatements had not been the cause which delayed the completion of the purchase, but that want of means on the part of the purchaser to pay even so much purchase-money as, according to his view, he had to pay, was the cause of the delay up to and until after the date of the filing of the bill, the COURT held, that the purchaser had so acted as to have lost the right to enforce a specific performance, and dismissed his bill. But the COURT declined giving the defendant costs, except upon the terms of his returning the deposit. THIS was a suit by Mr. Gee, as the purchaser, against Mr. Price Pearse, as the vendor, to enforce the specific performance of a contract contained in the conditions of sale, for the sale to him of certain hereditaments. The defendant, as a trustee acting under the usual trusts to sell, contained in the will of a Mr. Nicholas Pearse, deceased, caused certain freehold, copyhold, and leasehold hereditaments of the testator to be put up for sale by public auction, by Mr. Leifchild, auctioneer, at Garraway's Coffee-house, on the 24th of March, 1846, in several lots. Lot 1 consisted of a family mansion, known as Debden Hall, in a small park, with a meadow adjoining, stated to be freehold, with the exception of two specified parcels, which were described as leasehold; and it was stated, that immediate possession would be given of this lot to the purchaser on completion of the purchase. At the end of the printed particulars of all the lots, and of the conditions of sale, it was stated, that a considerable portion of the property was redeemed of land-tax, and that the rest was subject to land-tax, amounting to 2l. 15s. The plaintiff became the purchaser at the sale of the premises comprised in Lot 1, at the price of 3,850l.; and he thereupon, in pursuance of the conditions of sale, paid a deposit of 770l. to 1848. June 2, 16. KNIGHT BRUCE, V.-C. [325] GEE PEARSE. the auctioneer, and signed a memorandum, acknowledging that he had purchased Lot 1 for 3,8501., and agreeing to fulfil the conditions under which the same was sold. [326] Of the conditions of sale, the following only are material [ *327 ] parts: "3. Every purchaser shall immediately pay down a deposit, in the proportion of 201. for every 100l. on his purchase-money, into the hands of Mr. Leifchild, as agent for the vendor, and sign an agreement for the completing the purchase, and for payment of the remainder of the purchase-money to the vendor, on the 1st day of June next, at the office of Messrs. Frere & Co., at which time and place the purchases are to be completed; and the purchasers shall then have the actual possession, or be entitled to the rents and profits of their respective lots, all outgoings up to that time being cleared by the vendor; and in case, from any cause whatsoever, the purchases of any of the said lots shall not be completed, the respective purchasers of such lots shall pay to the purchaser interest on the purchase-money of such lots, and on the price of the timber therein, to be ascertained in manner hereinafter mentioned, after the rate of 41. per cent. per annum to the day of completion. "4. The purchaser of each lot shall take, at a valuation to be made by two competent persons and their umpire, to be appointed in manner hereinafter mentioned, the vendor's fixtures, an inventory of which will be produced at the time of sale, and also the growing crops, dressings, half-dressings, and manure in or upon the various lands comprised in their respective lots; and also all timber and timber-like trees, pollards, tellers, and saplings, on his or her lot, down to 1s. per stick, inclusive. "5. The vendor will deduce a good title to the lots sold, and will, within twenty-one days from the day of sale, at his own expense prepare and deliver to each purchaser, or to his or her solicitor, an abstract of his title. "6. That, within twenty-one days from the delivery of the abstract to each purchaser or his solicitor, all objections to the title shall be stated in writing, and delivered at the office of Messrs. Frere & Co., in default of which the title of the vendor shall be considered as accepted by such purchaser. "15. If any of the purchasers shall neglect or fail to comply with the above conditions, his or her deposit-money shall be actually forfeited to the vendor, who shall be at full liberty to resell the lot or lots bought by him or her, either by public auction or private contract, and the deficiency (if any) occasioned by such second sale, together with all expenses attending the same, shall immediately after the same sale be made good to the vendor by the defaulter at this present sale; and in case of the non-payment of the same, the whole thereof shall be recoverable by the vendor as and for liquidated damages, and it shall not be necessary previously to tender a conveyance to the purchaser." The last condition was the usual stipulation for a reference of disputes to arbitration. The defendant, in further execution of the trust to sell contained in the testator's will, caused other hereditaments of the testator to be put up for sale by public auction, by Mr. Leifchild, at Garraway's Coffee-house, on the 8th of June, 1846, in several lots. Lot 1 consisted of a farm, part freehold and part copyhold, on the east side of Debden Green, comprising the several particulars therein mentioned; also two cottages and lands, consisting of 84A. 1R. 18P. Lot 2 comprised a copyhold estate on the west side of Debden Green, consisting of a cottage and lands, admeasuring 47A. 9P.; and Lot 8 comprised two copyhold tenements, with gardens containing 27p. At the end of the printed particulars and conditions of the sale were statements, that the lands in Lot 2 were in the occupation of Mr. David King, a most respectable tenant at will; that the house, garden, and buildings in Lot 2 were in hand; and that the land-tax charged on such *portions of the several lots as were liable thereto, was 21. 5s., and that the same would be apportioned in the usual way. The plaintiff became the purchaser, at the sale, of Lots 1, 2, and 8, at the price of 4,500l., and he thereupon, in pursuance of the conditions of sale, paid a deposit of 900l. to the auctioneer; and he also signed a memorandum, acknowledging that he had purchased Lots 1, 2, and 8 in the particular of that day's sale, for the sum of 4,500l.; and also agreeing to fulfil the conditions under which the same lots were sold. By the conditions upon the second sale, it was stipulated by the third clause, that the purchase should be completed and the purchase-money paid to the vendor on the 29th of September, 1846. The conditions upon the second sale were otherwise the same, mutatis mutandis, as the conditions upon the first sale. It was subsequently arranged that the two contracts should be completed at the same time. R.R.-VOL. LXXIX. 15 GEE v. PEARSE. [ *328 ] |