description from being included in that which is the general description. The woodlands are proved to be part of the farm; I find the farm settled included in the deeds. But if that were otherwise, I do not apprehend the difficulty would arise as to including these woodlands. If proved to be part of that which constitutes the farm, there would not have been this use of the word "farm," but there would have been an enumeration of the particular lands constituting the farm. The general words clearly shew it was not merely for the purpose of describing part of the lands previously enumerated which might have wood growing on them, because it is "the woodlands, and the ground and soil of the same respectively," clearly intending therefore to comprise the same extent of surface, independent of that which had been before particularly described, that extent of surface being land covered with wood.

There is, therefore, both at the beginning of the description and at the end, what appears to me to be quite sufficient for the purpose of including the woodlands in question.

The Lord Chancellor having disposed of the case on exceptions, it was then argued on further directions; after which his Lordship pronounced the following judg

ment:

No doubt, the general rule is, that the vendor is entitled to interest, and the purchaser entitled to the rents from the time the contract ought to be completed. Certain exceptions have been made to that rule, but they are all made to apply to cases where the purchaser is not in possession; and all the cases concur in this, that the parties may do as they please between themselves. If the parties choose to stipulate that interest shall be paid from a certain time, and the rents and profits shall belong to the other party from that time, that contract is to be carried into effect, notwithstanding the delay that may arise in the completion of the contract. The case of Monk v. Huskisson, difficult as it is to explain it on the only point on which it professed to proceed, assumes that to be the rule. The Master of the Rolls said he adhered to the rule, that the vendor was not entitled to interest be

fore the time when a good title was shewn; and he stated, that the effect of the stipulation which had been relied on was not to give interest, when interest would otherwise not have been payable, but to fix the rate of interest to which the vendor might be entitled, at 57. per cent. instead of 41. per cent.

Whether that is right or wrong, is not of any importance as to the general rule. Certainly, if there had been any doubt about the contract in this case, it might have been of some importance as to the construction put on words in many respects similar to the words used in this case. It is quite clear, that the Master of the Rolls did not mean at all to infringe on the rule, that the Court would not interfere with the contract between the parties, if the parties had contracted for the payment of interest at a certain time.

Now, in the present case, it does not appear to me that the fact of possession is of any material consequence, because the parties have themselves contracted; and it does not seem to me there can be any doubt whatever of the intention of the parties, either on the original contract or the new contract, which arose on the letters that passed between the agents of the parties when the possession was actually taken.

The contract was to be performed at a certain time (the 25th of March); and that, being the time the parties stipulated for the completion of the contract, was to be the time when the possession was to be delivered to the defendant, and at which the purchase-money (the 10,000l.) was to be paid to the plaintiff. Consistently with that arrangement, it was provided, that Fisher, on payment of the said purchase-money, should be entitled (Fisher being in fact the defendant) to the rents or profits, or to the actual possession of the premises, from the 25th of March, up to which time all rates, taxes, assessments, and other outgoings, should be discharged by Mr. Portman; and further, that if the conveyances and assurances aforesaid could not be perfected for execution on the 25th of March, the said Fisher should pay interest for the purchase-money after the rate of 47. per cent. per annum, from the time from which he should be entitled to the rents

and profits of the premises until the execution of the assurances and the payment of the purchase-money, &c.

Now, it is impossible for anything to be more specific. There is a particular day fixed for the completion of the purchasethey contemplate the possibility of its not being completed by that day-the purchaser contracts, if that be so, he will pay interest upon the purchase-money, at the rate of 41. per cent., from the time at which, by the contract, it was intended the contract should be completed. It is not completed; and now the question is, whether anything has happened in the case to relieve the party from the contract entered into.

It is said, there is delay; and delay unfortunately there has been, for this is a contract in the year 1825, and we are now disposing of it in the year 1839. The question is, who was the author of that delay. I find a letter which has been referred to as written after possession was taken, which I now allude to, not for the purpose of observing upon the fact of possession, but in order to shew the ground which was in the first place taken by the purchaser. On the 23rd of July 1825, he says this "As the woodlands are not identified, nor the quantity ascertained, and even if there were satisfactory evidence as to these points, the deficiency of the real quantity, when compared with the quantity specified and set forth in the contract, is so very unreasonable, that I cannot think of completing the purchase; and I do hereby declare, that I will no longer retain possession of the farm, which I took without prejudice to my interests." On the 23rd of July 1825, he says, "I will set you at defiance; I will no longer complete the purchase;" and on a ground on which he has entirely failed,-the Court being of opinion against him,-on a ground which he could not support, he repudiates the contract in July 1825. The Court was of opinion against him, and there was a decree to inquire into the title; and the Master was of opinion a good title could be made. The point on which Lord Brougham afterwards thought there was a defect of title being submitted to the Master, and the Master being of opinion it did not amount to an objection to the title,

there was no default of the vendor. During all this time, he had done all that the Court had called on him to do, having obtained the judgment of the officer of the court in favour of his title. When Lord Brougham heard the case, he was of opinion there was an objection to the title; and the delay, according to the dates which have been given to me, is a very short delay between the time when the vendor was first informed there was an objection to the title, and the time when the objection was removed, when Lord Brougham, by the order the Solicitor General read, declared, that that objection was removed by the production of a certain deed, executed for the purpose. Therefore it must be taken it was an objection which the Court had told the vendor was no objection, till Lord Brougham said he thought it was. The Master thought it no objection. Lord Brougham being of opinion it was an objection, the objection was cured, by the production of a deed which removed that difficulty.

Excepting that interval between Lord Brougham's declaring his opinion that the objection was valid, and the time when Lord Brougham declared it removed, I see no delay on the part of the vendor. Everything else has been active-perhaps not always active. At the same time, he was always urging the completion of the purchase, and there was a resistance on behalf of the purchaser. Now, what is there in that state of circumstances to relieve the purchaser from the contract which he deliberately entered into?

Then, there is another ground, if it were necessary to resort to another ground-that soon after this contract was made, he was desirous of having possession; and he applied, that he might have possession without prejudice, not to his contract, as he represents it in the letter of July 1825, but without prejudice to the right he had of calling on the vendor to make good his title, and possession is given to him on these terms.

Now, having got possession on these terms, the effect of which is neither more nor less than this, "give me possession, and you, the vendor, notwithstanding that I have possession, shall be bound to make good your title; when you do make good

your title, my possession is not to depend on whether you make good your title on one day or another, because I am not to have that question of possession prejudiced at the present time,"—the only matter not prejudiced by that possession is the right of the purchaser to call on the vendor to make out his title. It would be a strange inconsistency for the purchaser to say-and if he said it, the vendor never would have permitted him to have had possession given him-"give me possession now, and if there is any delay, and you do not complete your contract before the time specified, then the possession shall not be considered as mine, for the purpose of ascertaining who is to receive the rents and profits, but the possession shall then be considered as yours." So that it would be an application by the purchaser that the vendor would permit him, the purchaser, to be in possession as his agent in a certain event, and he actually contemplates the event in short, it is written on the 17th of March (the 25th was the day contemplated for the completion of the purchase). He says " As there is now no probability of the vendor being enabled to complete his title by the 25th, you will oblige me by giving me a promise in writing on behalf of your client, that the taking the actual possession on the 25th by the purchaser shall not prejudice him as to the acts required and necessary to be done." Why, if there had been nothing in the original contract, this contract would have been quite sufficient to fix him with the effect of possession from the 25th of March, and with this further contract, that the possession of the 25th of March should be considered as his possession. The contract being completed at some period subsequent to the time at which it was by the contract to be made, he thinks proper, in the month of July, to throw up the possession: that is entirely at his own option; he could not repudiate his own contract-he could not depart from that which constituted the contract between them. By the letters of March following, he applied for possession at a certain time, on certain terms, and by those terms he was necessarily bound; and so it went on, and nothing more was done with regard to possession till after the Court declared there was a good title. That being declared in the year 1832, still

there being delay, from the difficulty of bringing the cause to a completion, owing to an unfortunate state of orders, which has only recently been rectified, then, the vendor, finding the property in a state which was destructive probably to the interest of whoever might ultimately turn out to be the owner of it, applies for a receiver. The rule of the Court is, that it never alters possession; the Court never affects any right by the appointment of a receiver. Practically, it may affect the interest of the parties-it never affects their right by the appointment of a receiver.

The receiver is the officer of the court, who holds the property for whosoever may ultimately appear to be entitled, and without that title being in any way prejudiced in theory or principle by the appointment of a receiver. Whether the purchaser disputed the order or not, he never took any steps to remove it; and it is impossible, on the face of the order, to ascertain how far he assented to it. It is not drawn up by consent, whether there was any opposition made or no opposition made. It was the order of the Court, that the officer of the court should receive the rents, and do such acts as receivers are generally authorized to do. He proceeded to obtain the Master's permission to cut timber. No application is made, under the circumstances of the case, on the part of the purchaser, to interfere with the exercise of the rule; and the property is so held by the Court, for the benefit of the party who ultimately shall appear entitled to it. There is nothing in the case to justify the purchaser from escaping from the contract he has entered into; and he must, therefore, according to the general rule of the court, pay interest according to the terms stipulated by the contract-viz. from the 25th of March 1825.

tions taken thereto for insufficiency, the plaintiff is entitled, as of course, to an order referring the exceptions instanter.

The bill in this cause was filed on the 5th of March 1839, and the defendants appeared on the 10th of March. On the 16th of March, the common injunction, for want of answer, was obtained in the ordinary form, where the action is commenced before the filing of the bill; by which the proceedings at law were restrained until answer or further order, giving the defendants liberty in the meantime to call for a plea and proceed to trial, and, for want of a plea, to enter up judgment, but restraining execution. On the same day (Saturday), after serving the above order, the defendants were served with notice of motion for the next seal, (the following Wednesday, the 20th of March,) to extend the common injunction to stay trial; but, on the 19th of March, the answer was put in, and the motion therefore could not be made. Exceptions to the sufficiency of the answer were delivered on the 22nd of March. On the same day,—

Mr. Geldart, for the plaintiff, moved before his Honour the Vice Chancellor for an order referring the answer for insufficiency instanter; and an order referring the bill, answer, and exceptions, was thereupon made.

Mr. Jacob, for the defendants, immediately obtained leave to serve a notice of motion for the 25th of March, to discharge the order for reference, with costs.

March 25.-Mr. Jacob and Mr. Mylne, in support of the motion, that the order for reference instanter should be discharged. The words in the fifth order, "except in injunction causes," are not an authority for the course which has been taken, for it is obvious that all injunction causes, or causes in which an injunction is sought, are not excepted.

Candler v. Partington, 6 Mad. 102.

1 Smith's Chanc. Prac. 281. (2nd edit.) In this case, the plaintiff has already obtained the common injunction; and it therefore ceases to be an injunction cause within the meaning of the exception in the fifth order.

Mr. K. Bruce and Mr. Geldart, contrà. -The reason of the exception in injunc

tion causes is, that otherwise the existence of an answer on the file, if merely nominal, or consisting of a few lines, would yet give the defendant eight days before he could be effectually restrained. The reason remains wherever the injunction, if an injunction has been obtained, is still incomplete. That is the present case; the motion to extend the injunction to stay trial, was pending when the answer came in. The injunction is therefore incomplete, and the necessity for accelerating the inquiry as to the sufficiency of the answer exists in all its force.

Munnings v. Adamson, 1 Sim. 510.
Bishton v. Birch, 1 Ves. & Bea. 366.
Dyer v. Dyer, 1 Mer. 1.

Mr. Jacob, in reply. - Circumstances may occur, in which it would be proper to make the reference instanter; as in special injunction cases. There is no recognized distinction between common injunctions which do, and which do not, stay trial. Only one order is made. If there were such a distinction, this case does not appear to be one in which the plaintiffs are entitled to the benefit of it. The order recites no circumstances having that effect, or shewing that all proceedings are not stayed.

The VICE CHANCELLOR.-There is no analogy between the present case and the case of shewing exceptions for cause, where the defendant has filed his answer, and obtained an order nisi to dissolve an injunction. There, the order is made in the presence of both parties, and under different circumstances. I have always considered it a motion of course, to refer the answer instanter, in injunction causes. I can well understand that the reason for the immediate reference, without waiting the eight days, would not exist where the common injunction had stayed all proceedings; but I cannot take the effect of the common injunction, primá facie, to be that of staying all proceedings at law. Primá facie, the common injunction must be considered as only restraining execution. In this case, therefore, it sufficiently appears that the common injunction which the plaintiffs in equity have obtained, is not so complete as by a subsequent application to stay trial it may possibly be made.

The reasoning of Sir J. Leach in Candler

After divers bequests to her children and their families, the testatrix bequeathed the residue of her personal estate, "to be equally divided between such of her sons and daughters as might be living at the death of M, and in case of the decease of any of her said sons or daughters, the surviving children of any of her sons or daughters to have their father's or mother's part:"-Held, that the children of a son or daughter of the testatrix who was dead at the time of making her will, or died in her lifetime, was entitled to a share equally with the sons or daughters who survived M.

Mary Pond, the testatrix, by her will, bearing date the 6th of February 1807, disposed of her personal estate as follows:

"I give and bequeath unto my son-inlaw, John Gurr, the sum of 2001.; to my daughter-in-law, Hannah Pond, widow of my late son Gilbert Pond, deceased, the sum of 2001.; to my son, William Pond, the sum of 2007., to be paid to them within six months next after my decease; also, I give and bequeath to my son, Samuel Pond, the interest of 200l., being 10l. per year, to be paid to him or his present wife, during the term of their or either of their natural lives; to my daughter, Elizabeth Such, the interest of 200l., being 10l. per year, to be paid to her yearly, during the term of her natural life; (the last two legacies I leave in the manner mentioned, in consideration that neither of the parties have children;) also, I give and bequeath to my daughter, Mary Pond, all the residue or remainder of my property, goods, and chattels, (subject to the payment of the before-mentioned legacies,) during her natural life; and after her decease, I will that the said property be equally divided amongst such of my sons and daughters as may be living at the time of the decease of the said Mary Pond; and in case of the decease of any of my said sons or daughters, the surviving children of any of my sons or daughters to have their father's or mother's part, to be equally divided between them."

The testatrix appointed Mary Pond and John Gurr, executrix and executor of her will. The testatrix died in January 1809. The following pedigree exhibits the state of her family: