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The costs of witnesses, whether they have been summoned or not, or examined or not, are to be allowed, if the judge thinks proper. We quite agree with the learned County Court judge, whose appreciation of his jurisdiction was so accurate, that when he received a prohibition signed by Mr. Justice Patteson, he exclaimed, "Oh, I don't mind that; Mr. Justice Patteson does not half know what my powers are!" We firmly believe he does not, and we also believe that the three judges, who signed these New Rules, are much in the same state of blissful igno
Here is a difficult requirement to observe.
Rule 129. "Concurrent or successive summonses for commitment may be issued in the same district or in different districts by the several courts thereof, provided that in no case shall a summons for commitment be issued, except by the court of the district wherein the party summoned then dwells or carries on business; and the costs of more than one summons shall not be allowed against the other party, unless by order of the judge."
How is the clerk to the court, who issues the summons at his office, to ascertain whether the defendant lives in the district or not, and what is meant by concurrent summonses which are only to go to one district? The useful thing would be to allow them to issue together for several districts, so as to catch a defendant who was shifting his residence to evade it; and it is difficult to see the possibility of any hardship in it, the costs being allowed only for one summons.
Rule 130. "When a defendant does not dwell or carry on business in the district of the court, to which he has been summoned to appear to a plaint, he shall not be liable to be committed at the hearing of such summons, whether he appears to such summons or not."
This rule simply makes doubtful what the act made plain. It fails to specify when the defendant must so reside, &c., to make the summons available.
Rule 139. This rule is intended to facilitate payment to plaintiffs of the produce of their summonses issued into foreign districts; but in very many courts the clerk may not have " any money in hand" whereout to pay the amount certified, and he can scarcely be expected to advance the money out of his own pocket, so that this rule may in numerous instances delay the plaintiff rather than otherwise.
Much extra trouble is imposed on the clerk of the court with regard to the accounts which he will be compelled to keep. The mode pointed out for keeping the cash book and ledger, and the forms of entries given by way of example, are likely to create
VOL. XV. NO. XXVIII.
great confusion, and render it extremely difficult, especially in courts of large business, to adjust the balances.
It may appear over punctilious to criticise the forms in the appendix; but they are drawn up with such extreme carelessness, that we cannot help giving one or two examples. In the form of commitment after judgment, the court is made to say that it has been proved to the judge's "SATISFACTION" that the defendant has not answered to his "satisfaction," among the other grounds of commitment.
In the summons to appear after judgment, the defendant is told that, if he does not appear at the hearing, he may be committed to gaol. Now the plain inference is, that if he does appear he will not be committed; and it seems a very awkward thing, if not a very unfair one, after such notice to imprison him on other grounds.
There is urgent need for the revision of these Rules, which, with a little more pains, may be made very useful, and a great, instead of a partial improvement on the old ones.
Notes of Leading Cases.
VENDOR AND PURCHASER-INTEREST-CONDITIONS OF SALE. De Visme v. De Visme, 1 M'N. & G. 336.
THE case of De Visme v. De Visme relates to the right of a vendor to claim interest upon purchase-money, and is important as overruling the judgment of Sir John Leach, V. C., in Esdaile v. Stephenson (1 Sim. & Stu. 122).
Where a time is specified for the completion of a contract, but the contract is not completed within the specified time, there equity, considering that as done which is agreed to be done, treats the estate as the property of the purchaser, and the purchase-money as the property of the vendor from the time fixed for the completion of the contract. Each becomes a trustee for the other. The vendor is entitled to interest on the purchasemoney, the purchaser to the mesne rents and profits of the
But as the rate of interest allowed by the court may exceed the value of the rents and profits, the court will in such a case consider to whom the delay was attributable, and if it be clearly made out to have been occasioned by the vendor, then, as no man may take advantage of his own wrong, the court gives the vendor no interest, but leaves him in possession of the interim
Such is the general rule where there is merely a time fixed for the performance of the contract, and nothing specific is said as to the time from which interest is to run. It was followed by Sir John Leach, V. C., in Paton v. Rogers (6 Madd. 256), and in Monk v. Huskisson (4 Russ. 121); and by Lord Lyndhurst, C., in Jones v. Mudd (4 Russ. 118), and is expressly recognized even in Esdaile v. Stephenson.
The decision in Monk v. Huskisson carried the rule still further. The contract in that case contained an express stipulation as to interest, that if, by reason of any unforeseen or unavoidable obstacles, the conveyances and assurances could not be prepared or perfected for execution on the day fixed for the completion of
the purchase, the purchaser should from that day pay interest at the rate of 51. per cent. on his purchase-money, and be entitled to the rents and profits of the estate. It was therefore contended, for the vendor, that the contingency of the conveyance not being perfected by the day fixed for that purpose, was contemplated at the time of the contract, and the express stipulation for payment of interest excluded the application of the general rule. But even in that case, Sir John Leach, M. R., held, that notwithstanding the stipulation, the vendor was not entitled to interest before the time when a good title was shown; the effect of the stipulation being, not to give interest when interest would not otherwise have been payable, but to fix the rate of interest at 51. instead of 41. per cent.
The same judge who, as Master of the Rolls, extended the rule to Monk v. Huskisson, had, however, as Vice-Chancellor, excluded it in Esdaile v. in Esdaile v. Stephenson, where the stipulation for payment of interest was, if not totidem verbis, at least as favourable for the purchaser as in Monk v. Huskisson. "The interest," his Honor said, "does not depend upon any rule of the court, but upon the express stipulation of the parties; and the terms of the stipulation apply to every delay, however occasioned. It is highly probable, but I cannot in reasoning assume it as a necessary consequence, that the interest must under all circumstances exceed the mesne profits, so as to infer from thence, that the true intention of the parties must have been, that the purchaser should pay interest at 5l. per cent. only when the delay in completing the contract was occasioned by himself. The purchaser must, under the circumstances of this case, pay interest according to the terms of the conditions of sale."
With this decision pronounced in 1822, that of the same judge, in Monk v. Huskisson in 1827, was directly at issue. So far, however, from being reversed by the latter, Esdaile v. Stephenson has been considered and followed as law. Thus, in Greenwood v. Churchill (8 Bea. 413), where the vendor had delayed the delivery of an abstract for more than two years, Lord Langdale, M. R., ordered the purchaser, whom he admitted to be not only innocent but to have acted in a laudable and generous manner, to pay interest at 5l. per cent., on the ground that he had precluded himself from seeking a variation of his
Such was the state of the law previously to De Visme v. De Visme. There, by the conditions of sale, a time was fixed for the delivery of the abstract, and a time for the payment of the purchase-money; and it was provided, that if the money were not paid at such last mentioned time, then, from whatever cause
the delay might have arisen, the purchaser should pay interest at 51. per cent. from that day. A perfect abstract was not delivered for upwards of a year and a half from the time fixed by the conditions of sale. The purchaser, however, set apart his purchasemoney, and gave notice to the vendor. A petition by the personal representatives of the purchaser, claiming compensation for the loss sustained by the purchaser, being the difference between the amount of interest at 57. per cent. and the interest at 21. 10s. per cent. made by the purchaser on his purchase-money, was dismissed by Wigram, V. C., his Honor stating, that he considered himself bound by the cases which decided, that in a condition of that nature, where interest is to be paid by the purchaser in case of delay from any cause whatever, the acts of vendors are among the causes of the delay referred to. From the order of the Vice-Chancellor the petitioners appealed to Lord Cottenham, C., who held, reversing his Honor's order, that the purchaser was only liable to pay interest from the time a good title was shown. Lord Cottenham said, it was not necessary for him to determine whether the words " any cause whatever" included that which had happened, viz., the neglect of the vendor to perform his part of the contract; even if it did, the court would compensate the purchaser for the loss occasioned by the vendor's nonperformance of the contract. Where a vendor sells property under a description more favourable than properly belongs to it, the court in certain cases performs the contract, but performs it sub modo, not leaving to the vendor the benefit of his error,-not compelling the purchaser to pay in full, but only so much as appears to be the value of the property which can be conveyed to him, deducting the value of so much as he contracted for and could not obtain. This rule, continued his lordship, this broad principle of compensation, which was universally adopted where principal was concerned, should in justice be applied to the case of interest. Assuming that upon the true construction of this contract the vendor was entitled to the interest from the time fixed for payment of the purchasemoney, if he had made default in performing his part of the contract, he may not get the benefit of his own wrong, but must make compensation. No property produced 57. per cent.; to pay it therefore in exchange for the rents would be a loss to the purchaser, for which, if it arose from the vendor's default, the court would give him compensation, and not specifically perform a contract with all the disadvantages that the vendor might impose upon an innocent purchaser. To hold the contrary would be to do the greatest possible injustice.
Although Lord Cottenham did not expressly determine the