mean time, because he had a chance of gaining as well as losing by a fluctuation of the price (c).

But a purchaser is entitled to interest on his deposit (d); and if the residue of the purchase-money has been lying ready without interest being made by it, he is entitled to interest on that(e). Where the plaintiff recovers under a special count on the original contract, which, we have seen, affirms the agreement, interest will be given as part of the damages for non-performance of the agreement: where he recovers under a count for money had and received, which disaffirms the contract, and to which is mostly added a count for interest, it may, it should seem, be recovered as damages sustained by the plaintiff, by reason of the money having been withheld from him. If, however, the original contract is void, as, if it be a parol agreement for the sale of lands, the purchaser can only recover his deposit in an action for money had and received, and will not be allowed interest(ƒ)(153).

Where the plaintiff declares on the original contract, and lays the expenses incurred in investigating the title, &c. as special damages, he will be entitled to recover them as such(g). In one case Lord Ellenborough threw out a doubt upon this(h); but in a subsequent case before his Lordship, in which Gibbs, C. J., then at the bar, was counsel for the vendor, the defendant, a purchaser, ob

(c) Flureau r. Thornhill, 2 Blackst. 1078.

(d) See ch. 10, infra.

(e) Flureau v. Thornhill, ubi sup.

(f) Walker v. Constable, 1 Bos. & Pull. 306. In this case, however, the rule was laid down generally, that interest could not be recovered in an action for money had an received; and see Tappenden v. Randall, 2 Boss. & Pull. 472, sed qu.; and see ch. 10, infra.

(g) Flureau v. Thornhill, ubi sup. ; Richards v. Barton, 1 Esp. Ca. 268; Bratt v. Ellis; Jones v. Dyke, App. Nos. 7 & 8. (h) Camfield v. Gilbert, 4 Esp. Ca. 221.

(153) See Pease v. Barber, 3 Caines' Rep. 366, 367.

tained a verdict for his deposit with interest, and the (*)expenses of investigating the title, without argument, it being admitted that the title was defective(i): in a still later case, they were also recovered by a purchaser(k); and there are other cases not reported, in which I am told such expenses have been recovered. If the rule were otherwise, it would induce many persons upon speculation to offer an estate for sale, knowing the title to be bad; and yet, in a late case at nisi prius, Mansfield, C. J. held, that the purchaser was not entitled to recover back the expenses of investigating the title().

But clearly the expenses cannot be recovered under a count for money had and received; and Lord Ellenborough has decided that they cannot be recovered under a count for money paid, &c. to the defendant's use, as the money is expended for the purchaser's own satisfaction as to the title which he is about to take(m)(154). Nor can the expenses of investigating the title he recovered from the auctioneer(n). The expense of preparing the conveyances can hardly in any case be recovered,

(i) Turner v. Beaurain, Sitt. Guildh. cor. Lord Ellenborough, C. J., 2d June 1806. MS.

(k) Kirtland v. Pounsett, 2 Taunt. 145. See p. 146.

(1) Wilde v. Fort, 4 Taunt. 334. Note, the C. J. also ruled, that interest on the deposit is not recoverable, which is contrary to other authorities; and too large a construction, according to other authorities, appears to have been put on the statute of Elizabeth.

(m) Camfield v. Gilbert, 4 Esp. Ca. 221.

(n) Lee v. Munn, 1 Holt, 569.

(154) In covenant brought by the grantee against the grantor, for breach of the covenant against incumbrances in a deed, the plaintiff is entitled to recover, not only the purchase money, and the interest, but also the costs of the ejectment against him. Waldo v. Long, 7 Johns. Rep. 173. See Slaats v. Ten Eyck's Exrs. 3 Caines' Rep. 111. Pitcher v. Livingston, 4 Johns. Rep. 1. Marston v. Hobbs, 2 Mass. Rep. 433, 440.

for they should not be prepared before the title is accepted (o).

Where a vendee brings an action on account of the agreement not having been completed, he will be compelled to give the vendor a particular of every matter of fact which he means to rely upon at the trial, as having been a cause of his not being able to complete the purchase; but he is not bound to state in his particular any (*) of the objections in point of law arising upon the abstract(p).

But where no particular has been obtained, the plaintiff is not confined to the objections which he may have stated to the defendant, but may take advantage of any other, which may entitle him to recover as for breach of the agreement(q).

To entitle a vendor to sustain an action for breach of contract, it has been said, that he must show what title he has; it not being sufficient to plead that he has been always ready and willing, and frequently offered to make a title to the estate(r). In a late case(s), however, where a vendor averred, that he was seised in fee, and made a good and satisfactory title to the purchaser of the estate, by the time specified in the conditions of sale, it was held sufficient, and that it was not necessary for him to show how he deduced his title to the fee. And the Court seemed of opinion, in opposition to the prior cases, that a vendor need not display his whole title on the record. This decision, without working an injustice, will

(0) Jarmain v. Egelstone, 5 Carr. & Pay. 172.
(p) Collet v. Thomson, 3 Bos. & Pull. 246.
(q) Squire v. Tod, 1 Camp. Cas. 293.

(r) Philips v. Fielding, 2 H. Blackst. 123; and see Duke of St. Alban's v. Shore, 1 H. Black. 270; Luxton v. Robinson, Dougl. 620. (s) Martin v. Smith, 6 East, 555; 2 Smith, 543; and see Co. Litt. 303, b; Terry v. Williams, 1 Moore, 498.

in most cases render it unnecessary to load the pleadings with the title of the vendor.

But even if the title is set out, yet the execution of the title-deeds need not be proved, because that is never required of a vendor(t). This was decided by Lord Kenyon at nisi priùs. To prove the plaintiff's title to a right of way sold, the deeds were produced; and it was objected, that the deeds themselves should first be made evidence, by producing the subscribing witnesses. (*)But Lord Kenyon ruled it not to be necessary. He said, he would never allow, where the question was respecting a title, that the party should be called upon to prove the execution of all the deeds deducing a long title; that it was never mentioned in the abstract, or expected in making out a title in any case of a purchase, more particularly where possession has accompanied them: he therefore admitted them without proof of the execution(u). In a late case, however, before Lord C. J. Mansfield, at nisi prius, where in assumpsit upon an agreement to purchase a leasehold house, it appeared that the plaintiff, the vendor, was the third or fourth assignee of the term; and it was contended, that he need only prove the execution of the last assignment: it was ruled otherwise; and he was compelled to prove the lease and all the mesne assignments(x). Lord Kenyon's decision was not however adverted to; and as that clearly coincides with the practice in these cases, it can scarcely be considered as overruled(I).

If the agreement is in the hands of one of the parties, or his attorney, equity, in case a bill is filed, will compel

(t) Thomson v. Miles, 1 Esp. Ca. 184.

(u) Thomson v. Miles, ubi sup.

(x) Crosby v. Percy, 1 Camp. Ca. 303.

(I) The vendor's counsel cited Nash v. Turner, 1 Esp. Ca. 217; but Mansfield, C. J. thought that it did not apply.

it to be delivered up to the other party, in order that it may be stamped(y). So, in case of an action, if only one part of the agreement has been executed, the party, in whose possession it is, shall be compelled to produce it to the other party(z). And if there are even two parts, but one only is stamped, the party having the unstamped part may give secondary evidence of the contents of the (*)agreement, if the other, after notice, refuse to produce the stamped part(a). Where one party produces the agreement, under a notice from the other, the latter need not call the subscribing witness to prove the execution of the agreement, as the defendant takes an interest under it(b)(155).

Where a contract is not completed merely on account of objections to the title, and the vendor thinks his title. good, he frequently brings an action at law for non

(y) Supra, p. 87.

(2) Blakey v. Porter, 1 Taunt. 386; Bateman v. Philips, 4 Taunt. 157; King v. King, ib. 666; Street v. Brown, 1 Marsh. 610.

(a) Garnons v. Swift, 1 Taunt. 507. See Waller v. Horsfall, 1 Camp. Ca. 501.

(b) Bradshaw v. Bennett, 5 Carr. & Pay. 48.

(155) Where a subscribing witness is dead or abroad, in an action on the instrument it is necessary to give some evidence of the identity of the party executing with the party sued, the naked proof of the handwriting of the subscribing witness is insufficient. If the attestation state the residence of the party, proof that the party sued resided there, would, as it seems, be prima facie evidence. Whitelocke v. Musgrove, 1 C. & M. 511; 3 Tyr. 541, S. C. This case may be considered as overruling the decisions of Lord Tenterden and Best, Ch. Js. in Mitchell v. Johnson, M. & M. 176; Page v. Mann, ib. 79; Kay v. Brookman, id. 286; and as settling a question which had long been a subject of doubt at N. P.

In an action by the vendee against the vendor of an estate, to recover the deposit money on a contract for the purchase, if the defendant on notice produce the contract, the plaintiff need not prove the contract. Bradshaw v. Bennett, 1 Moo. & M. 143; 5 C. & P. 48, S. C.