VENDORS AND PURCHASERS.

False Representations-Legal Fraud-Moral Fraud-Knowledge of Falstty-Puffers, employment of one bidder-Condition against retracting bidding-Agreement containing the name of one party only-Title to exchanged lands-Every document to be abstracted-Enrolment of bankruptcy proceedings-Waiver of objections to title by acts of ownership after possession given-Purchaser bound to accept title depending on Statute of Limitations-Purchaser of non-existent estate, relief granted to-Two intending purchasers, one desisting on parol promise of other to buy for their joint benefit.

LORD ST. LEONARDS, in the course of last year, brought out a new (the 14th) edition of his work on Vendors and Purchasers, and from a review thereof in the Solicitors' Journal we take the following extract, to which we have made some additions, and which will be serviceable to our readers as calling attention to some useful points in the law of vendors and purchasers.

False representations-Knowledge of falsity-Legal and moral fraud.-Few cases are more important in their relations to the fundamental principles of legal contracts, or have excited warmer discussion than those raising the question whether legal, without moral, fraud invalidates a contract or furnishes ground of action. The difficulties supposed to be incident to this question were chiefly suggested by the decision in Cornfoot v. Fowke (6 M. & W. 358). In that case a principal had been guilty of moral fraud, and his agent of legal fraud; and yet the majority of the Court of Exchequer (dissentiente, Abinger, C.B.) held that, as the same party was not guilty both of moral and legal fraud, the contract of the agent, though founded by him upon a false representation, was nevertheless valid. This question received various solutions in different courts, the majority of Judges in the Court of Exchequer inclining to the opinion that moral fraud was indispensable to invalidate a contract, while the Court of Queen's Bench considered that legal fraud sufficed for that purpose: vide Moens v. Heyworth (10 M. & W. 147), Taylor v. Ashton (11 M. & W 401), Evans v. Collins (5 Q. B. 804, 820). The question may be considered as now settled in one important respect by the cases of Ormerod v. Huth (14 M. & W. 651) and Barley v. Walford (15 L. J., Q. B., 369) which decide that moral fraud in a representation is essential to invalidate a contract founded upon it. Protean astuteness has, however, even down to the present moment, contrived to find an incompleteness even in these decisions, and the additional

question has been raised, whether, in order to constitute moral fraud in a representation, it should be false to the knowledge of the party making it, or is it sufficient merely to show that it was untrue in fact, and not believed to be true by the party making it? Vide Taylor v. Ashton (11 M. & W. 415), and Jarratt v. Kennedy (6 C. B. 319). A stranger to the subject-matter of a contract, who makes a false representation concerning it, with an intention to deceive, incurs, we may observe, just the same liability as if he were one of the parties. Lord St. Leonards says (p. 4.), citing Sir W. Grant, "In cases of this nature it will be sufficient to show, firstly, that the fact as represented is false; secondly, that the person making the representation had knowledge of a fact contrary to it." This degree of moral fraud is not, we think, necessary to invalidate a contract. The result of the cases appears to be to restore the rule laid down by Mansfield, C.J., in Schneider v. Heath (3 Campb. 506), so that a contract may be invalidated by an assertion either of what the party knows to be false, or of that which is in fact false, and which, although he may not know it to be so, he represents himself as knowing to be true. We regret that Lord St. Leonards has so much inclined to the opinion that legal without moral fraud should be deemed insufficient to vitiate a contract. The opinion of the noble lord must doubtless have had much influence in leading to the establishment of the present clumsy rule. To require proof of moral fraud, where legal fraud is relied on, tends to embarrass the noble author's much favoured "purchasers," and even commerce generally, by means of the wide door it opens to fraud. It further tends to promote litigation by reason of the great difficulty of determining what degree of deceit will constitute moral fraud. Mr. Dart, in his treatise on Vendors and Purchasers (p. 64, 3rd ed.), seems to consider actual fraud alone as sufficient to invalidate a contract. He appears to mean by actual fraud a statement of a matter as a fact which is not believed by its author to be true. The rule of law, it thus appears, regarding affirmations of value, is even now not very well settled, unless the decisions in Taylor v. Ashton, and Jarratt v. Kennedy, ut supra, be considered exhaustive of the question (see further, Com. Law Princ. pp. 346-348).

Puffers-Employment of one bidder.-We are happy to perceive that Lord St. Leonards, somewhat contrary to his usual tendencies to rigour, is of opinion (p. 16) that the appointment of a single bidder does not affect a sale, even at law. In the case of Thornett v. Haines (15 M. & W. 371), the Court of Exchequer expressed the opinion that such a sale would be invalid at law, unless the intention so to appoint a single bidder was expressly notified. This opinion was carried out in the cases of Wheeler v. Collier (1 Moo. & M. 123), Crowder v. Austin (3 Bing. 368), and Rex v. Marsh (3 Y. & J. 331).

There is, consequently, a different rule at law from that which obtains in equity in respect of this matter,—a great inconvenience, as noticed by Lord St. Leonards, and one which we should gladly see remedied by statute or a decision of the House of Lords.

Retracting bidding -Lord St. Leonards considers (p. 14) that a condition that no person is to retract his bidding is invalid, as amounting to an evasion of the Statute of Frauds. If there was an express condition of sale that the Statute of Frauds should not affect the transaction, such a stipulation would be invalid; a fortiori an implied agreement to the like effect is of no avail. The treatise before us, we need hardly inform our readers, relates only to real property. A condition of the nature we have mentioned would, of course, be perfectly valid in respect of sales of personalty. Mr. Dart (p. 80) appears to consider that a condition of the nature mentioned is now authorised by the decision in Freer v. Rimner (14 Sim. 391). But Lord St. Leonards, with more accuracy, observes that that case was a sale made by order of the Court, which is binding upon the person consenting to the sale, and upon their agents.

Agreement containing name of one party only. - Prior to the thirteenth edition of this work, the case of Coleman v. Upcot (5 Vin. Ab. 527) was incorrectly quoted by Lord St. Leonards, so as to lead to the impression that the noble author considered that an agreement containing the name of only one of the parties to it might nevertheless be valid within the Statute of Frauds. Such, we need hardly say, is not the law. The error is corrected by Lord St. Leonards in the last and present editions of his work, but not with such perspi cuity as its importance requires. A compliance with the requirements of the Statute of Frauds, simple though they be, is the pons asinorum of those contractors who will content themselves with informal agreements, or, as it may be, with their own amateur knowledge of law. Mr. Dart (p. 141, note) very properly observes, in respect of this matter, that the omission of the vendor's name from a contract is now very general, and may occasion serious difficulty. Such a contract, in our opinion, is simply invalid; and the timidity with which Mr. Dart expresses his disapprooation of the custom was probably attributable to the error on this point in the previous editions of Lord St. Leonards' work. It is strange that even in such a work as "Roscoe on Evidence" the point should be deemed doubtful; for in the 9th edit., p. 233, it is said, in reference to the proof of a contract, "The agreement cannot, it seems, be enforced unless both the contracting parties are named in it." In our Princ. of Com. Law, p. 143, we ventured to state that "the names of both parties must appear on the document, or be ascertainable by a necessary inference arising on the face of it, or by reference to an ascertainable document supplying the deficiency." In

the case of Williams v. Lake (29 Law Journ., Q.B., 1; 24 Jur. 45; 35 Law Tim. Rep. 56; 8 Week. Rep. 41) it was expressly decreed by the Court of Queen's Bench that any agreement, or any memorandum or note thereof, within the statute, must have the names of both parties inserted in it, and it was held that the document there in question was imperfect because it did not contain the name of the party with whom it was made. We believe that was the first case in which this point was expressly so decided. The same question substantially was raised in the following case of Williams v. Byrnes. There one J. signed a writing in these words:-"I will furnish Mr. Hardy with funds for the purchase of a steam-engine and machinery for a flour mill on his suiting himself with the same, and notifying the purchase to me," and the writing was not addressed to any one, though J. knew it was to be delivered to the plaintiffs. This paper was delivered to persons who, upon the faith of it, gave credit to Hardy; and it was also shown that J. had been spoken to on the subject after he had signed the paper, and asked the price of the engine, &c. Upon this state of facts it was argued that the note or memorandum was sufficient to satisfy the statute, and that extrinsic evidence was admissible to show who the other party to the agreement was, although there admittedly was nothing upon the face of the memorandum to connect him with it. The Privy Council decided that the memorandum was insufficient. The decision proceeds upon the same reasoning as produced the judgment of the Court of Queen's Bench in Williams v. Lake; but Sir J. T. Coleridge, who delivered the judgment of their Lordships of the Privy Council, appeared disposed to qualify the absolute terms in which the rule is enunciated in that case. Sir J. T. Coleridge intimates that although the parties to the agreement must be specified in it, yet it may be "either nominally, or by description or reference.' The next reported case upon the subject will probably turn upon the question of what constitutes a sufficient description or reference to a party not named in the memorandum, so as to obtain the benefit of the dictum to which we have referred. It is well settled that the memorandum need not be contained in the same piece of paper. A correspondence, therefore, between the parties may form an agreement; but the names of the parties must appear on the face of the documents or there must be at least, either by description or reference, the certain means of identifying them. Such is the qualification which Sir J. T. Coleridge's dictum would introduce into the more simple rule enunciated in Williams v. Lake. It is not impossible to conceive how the identity of a party might be placed beyond dispute by description or reference in the absence of his name; but in the vast majority of such cases the absence of specific designation must almost of necessity leave room for doubt, and at all events

require the aid of parol evidence, which it was the policy of the statute to exclude. We are therefore disposed to regard the recent decision as nothing more than an affirmance of the ruling of the Court of Queen's Bench in Williams v. Lake. The case of Williams v. Byrne was an appeal from the decision of the Supreme Court of New South Wales, and C. J. Stephens, after referring to Williams v. Lake, said:" I must be pardoned for thinking that it is not necessary, in all cases and under all circumstances, to mention in writing the name of the promisee. I am of opinion that in a case like this the names of the plaintiffs, being the parties who actually accepted the offer or acted on the promise of Jobbins, since they could not have been mentioned in the writing, need not have been mentioned here." Sir J. T. Coleridge observed :-"The name of the person with whom the contract was to be made does not appear in the instrument, nor on any other paper connected with it, and capable of being considered as completing with it a note or memorandum of the transaction. Whether this instrument is to be considered as evidence of the contract, or only of a proposal which would become a contract upon the acceptance of it by the Byrnes, the question is still the same, whether, without the insertion of their names in it or in some other paper connected with it, there is a sufficient note or memorandum in writing of the bargain to satisfy the statute? Apart from authority, and looking only to the words of the enactment, and the mischief which it was intended to prevent, their Lordships think the question must be answered in the negative. The words require a written note of a bargain or contract, the statute clearly making no distinction between these two words. This language cannot be satisfied unless the existence of a bargain or contract appear evidenced in writing, and a bargain or contract cannot so appear unless the parties to it are specified either nominally or by description or reference. It is true that the statute does not require the whole bargain in all its terms to be stated; it stipulates only for a note or memorandum of it signed by the party to be charged, but it does in effect require that the essentials, i.e., all those things without which it can be no bargain at all, shall be. Upon this principle it was that the Courts determined, under the 4th section, that the consideration of an agreement must appear on the face of the memorandum of a guarantee, or be matter of necessary implication from its language. (2 Exam. Chron., p. 5.) It was obviously the intent of the statute to prevent, as far as it could conveniently, the mischief of being obliged to have recourse to oral evidence in regard to the transactions within it. But it would fail to accomplish its object in a most material particular, and in one in which its requirements might always be most easily satisfied, if it did not impose the necessity of stating the name of the seller as well