Must be communicated.

Election may be evidence by acts.

No rescission after an election to affirm the contract.

Nor where by the act of the party claiming to rescind restitutio in integrum has become impossible.

(q) Clough v. London and North Western By. Co., L. R. 7 Ex. 26, 34, 35; Morrison v. Universal Marine Insurance Co., L. R. 8

Ex. 197,203; Lindsay Petroleum Co. v. Hard, L. R. 5 P. C. 221, 239 sq. ; Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1218, 1277; Be Duncan, 1899, 1 Ch. 387, 390; and see Charter v. Tre~ velyan, 11 CI. & Fin. 714, 720; Imperial Ottoman Bank v. Trustees, etc. Corp., 13 R. 287. If the party misled point out the misrepresentation, and the other make proposals for removing its effect, the right of rescission is only suspended and may be exercised, if the proposals fall through; Tib-batts v. Boulter, 73 L T. 534.

(r) Bulch-y-Plwm Lead Mining Co. v. Baynes, L. R. 2 Ex. 321; Ashley's case, L. R. 9 Eq. 263; and see Re Duncan, 1899, 1 Ch. 337, 390.

(s) Above, pp. 728, 730 - 732; Hoare v. Bremridge, L. R. 8 Ch. 22, 26; London and Provincial Insurance Co. v. Seymour, L. R. 17 Eq. 85. If sued, he may counter-claim for rescission; Redgrave v. Hard, 20 Ch. D. 1; Smith v. Land and Blouse Property Corp., 28 Ch. D. 7. But a claim to rescind the contract for misrepresentation cannot be made in a vendor and purchaser summons; Be Hughes and Ashley's Contract, 1900, 2 Ch. 593.

(t) Clouqh v. London and North Western By. Co., L. R. 7 Ex. 26, 37.

(u) Expte. Briggs, L. R. 1 Eq. 483; Scholey v. Central By. Co. of Venezuela, L. R. 9 Eq. 266, n.; cf. above, pp. 151, 152.

(x) Clough v. London and North Western By. Co., L. R. 7 Ex. 26, 34.

No rescission as against a purchaser for value without notice.

No rescission for innocent misrepresen-tation after completion.

(y) Clarke v. Dickson, E. B. & E. 148; Western Bank of Scotland v. Addie, L. R. 1 Sc. 145, 159, 165; Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1218, 1278; Romer, J., Rees v. Be Ber-nardy, 1896, 2 Ch. 437, 446.

(z) See Vigers v. Pike, 8 Cl. & Fin. 562, 650; Mostyn v. West Mostyn Coal and Iron Co., 1 C. P.

D. 145, 149

(a) Phosphate Sewage Co. v. Hartmont, 5 Ch. D. 394, 448, 449, 452; Rees v. Be Bernardy, 1896, 2 Ch. 437, 446.

(b) See Gresley v. Mousley, 4 De G. & J. 78.

(c) Above, p. 674.

(d) Above, pp. 730 - 732.

(e) Above, pp. 675, 676.

The right to rescind a contract for the sale of land on the ground of misrepresentation, fraudulent or innocent, is not personal to the contracting party; it may be exercised by his representatives after his death; and in the vendor's case, the right forms part of his real estate, and the benefit thereof will belong to his heir or devisee (h). So also the contracting party's assigns in his lifetime by operation of law, who take the benefit of the contract, as his trustee in bankruptcy (i), have the same election to avoid or confirm it as he had himself. The vendor's right to set aside after completion a contract for the sale of land induced by fraud appears to be so far an interest in the land that it is devisable by his will, and will pass under a general devise of all his real estate (k). It has been held, however, that an assignment by act inter vivos of a bare right of suit in equity to set aside a conveyance or a release for fraud is obnoxious to the laws of maintenance and champerty and is therefore void (/): but such an assignment may be made by a trustee in bankruptcy under the special provisions of the Bankruptcy laws (m). If either the vendor or the purchaser assign over the whole benefit of the contract pending completion (n) without being aware of some misrepresentation by the other party sufficient to avoid the contract, it appears that the assignee, for whom the assignor would be a trustee of all his rights under the contract, would have the benefit of the option to rescind or affirm the contract, and of the right to specific performance with compensation. But if the assignor were aware of the misrepresentation when he assigned over the benefit of the contract, then it seems that the assignment, being the exercise of an act of ownership, would be evidence of an election to affirm the contract (o); and in such case it appears that the assignee could no more rescind the contract than the assignor himself (p). But the assignee would have the original contractor's right to claim compensation in proceedings either for specific performance or for breach of any warranty implied in the representation (q).

By what persons the right of rescission is exercisable.

Assignee of a voidable contract pending completion.

(/) Above, pp. 577, 578, 728, 729.

(g) Above, pp. 540, 727, 728.

(h) See Trevelyan v. White, 1 Beav. 588; Charter v. Trevelyan, 11 Cl. & Fin. 714; Stump v. Gaby, 2 De G. M. & G. 623, 630; Gresley v. Mousley, 4 De G. & J. 78, 93; above, pp. 461 sq., 468.

(i) Above, pp. 479, 481. See also, p. 495.

(k) Gresley v. Mousley, 4 De G-. & J. 78, 93

(l) Prosser v. Edmonds, 1 Y. & C. Ex. 481; De Hoghton v. Money, L. R. 2 Ch. 161, 169; Hill v. Boyle, L. R. 4 Eq. 260.

{m) Seear v. Lawson, 15 Ch. D. 426; Guy v. Churchill, 40 Ch. D. 481; and see Be Park Gate Waggon Works Co., 17 Ch. D. 234.

6(2)

The right of rescission is exercisable, with the limitations above mentioned, against the other party's representatives after his death, his assigns for value or otherwise of the benefit of the contract so long as it remains a mere chose in action (r), and in the case of a purchaser, against his assigns, taking by operation of law (s) or by his own act, but either gratuitously (t) or on purchase with notice of the fraud (u), of the property purchased or any interest therein.

Against what persons the right of rescission is exercisable.

An action of deceit for a false representation, whereby a man's personal estate has suffered damage, is maintainable under stat. 4 Edw. III. c. 7 (x), by his executors or administrators after his death {y). But an action to recover damages for deceit cannot, in general, be maintained after the death of the deceiving party (z). If, however, the wrong were done within six calendar months before the wrongdoer's death (a), it is thought that an action would be maintainable therefor against his executors or administrators under stat. 3 & 4 Will. IV. c. 42, s. 2 (b). For as the personal representatives of the party deceived may sue for the wrong done, as being an injury to his personal estate (c), it appears that the cause of action must be a wrong done in respect of his property within the meaning of that statute (d). The direct assignment of a bare right of action of deceit appears to be obnoxious to the laws of maintenance and champerty and to be void on that account (e). But it may be contended that, where the whole benefit of a contract induced by fraud has been assigned over in good faith and for value, pending completion and before the discovery of the fraud (f), the assignee should be entitled, if he elect to affirm the contract, to succeed by subrogation to all the assignor's rights to compensation for the fraud; and should be Action of deceit maintainable after death of party deceived.