478 LARGEST PURCHASER ENTITLED TO TITLE-DEEDS. 



deposit, aUliong-h forfeited so far as to prevent the purchaser from ever 

 recovering it back, as without a forfeiture he might have done {Palmer 

 V. Temple), still is to be brouglit by the seller into account, if he seeks 

 to recover as for a deficiency on the re-sale." His lordship added that 

 he had consulted Lord St. Leonards on the point, and that he quite 

 coincided with the Court on the point. 



As between vendor and purchaser, a Me dependent on a question of 

 fact, tvhich it is impossible to consider as reasonally certain, is not a good 

 or sufficient title ; and therefore it was held by the Court of Common 

 Pleas, that an intended purchaser, who by the conditions of sale is to 

 have a good title made out, may, upon such an insufficient title being 

 offered to him, recover laclc his deposit money and expenses, in an action 

 against the intended vendor {Simmons v. Heseliine). 



It was held by the Privy Council in Dimech v. Corlett that one party 

 to a contract cannot, icitlwut the privity or consent of tlw other party, sub- 

 stitute a third person in his place, on simply guaranteeiny the solvency of 

 such third j^erson ; and the only exceptions are in the cases of negotiable 

 and transferable instruments. And where a contract concludes with a 

 penalty, the intention of the parties is the sole guide as to its effect, 

 and this intention is determined not merely by the term "penalty" 

 or " liquidated damages," but the Court will look at the whole docu- 

 ment {ib.). 



Where certain proiocrty -was assigned to B., an auctioneer, upon trust 

 for sale, and to apply the moneys arising therefrom in payment of the 

 expenses of the deed of assignment, and of effecting such sale, " in- 

 cluding the usual auctioneer's commission," and upon further trust ; 

 it was held by the Lord Chief Justice that B. was entitled, in taking 

 the accounts between himself and the assignor, to be allowed the usual 

 charges for commission made by him as auctioneer {Douglass v. Arch- 

 butl). On a sale by auction of land in lots, the piurchaser of the lot laryest 

 in value, in tlie absence of any conditions respecting them, is entitled to the 

 custody of the tille-deeds relating to all the property ; but if there be a 

 condition that the purchaser of the " largest lot " shall have them, that 

 must mean largest in superficial area {Griffiths v. Hatchard). Where 

 f;everal lots (growing crops) are knocked down to a bidder at an 

 auction, and his name marked against them in the catalogue, a distinct 

 contract arises for each lot ; and a memorandum signed afterwards by 

 the bidder, stating that he agrees to become the purchaser of the 

 several lots set against his name, does not require a stamp, though 

 the aggregate exceed £20 in value, no single lot being of that price 

 {Roots V. Lord Dormer). 



If land generally reputed to be water-meadow is sold by the assiynees 



