(n) Above, p. 499.

(o) Above, p. 745.

(p) Above, p. 74o.

(q) Above, pp. 723 - 725, 727 - 730, 744; and see below, p. 749.

(r) Above, p. 675.

(s) Load v. Green, 15 M. & W. 216, 221.

(t) Bridgeman v. Green, Wilm. 58, 64, 65.

(u) Trevelyan v. White, 1 Beav. 588; Charter v. Trevelyan, 11 Cl. & Fin. 714.

(x) See Wms. Pers. Prop. 143, 15th ed.

But not of deceiving party.

(y) Twycross v. Grant, 4 C. P. D. 40; and see Hatchard v. Mege, 18 Q. B. D. 771; Oakey v. Dalton, 35 Ch. D. 700.

(z) Peek v. Gurney, L. R. 6 H. L. 377, 392; Re Duncan, 1899, 1 Ch. 387. It appears from the latter case that the suggestions to the contrary thrown out in Twycross v. Grant, 4 C. P. D. 4 0, 42. 46, 47, were not well founded in law.

(a) See Kirk v. Todd, 21 Ch. D. 484.

(b) See Wms. Ters. Prop. 14.3, l5th ed. The action must be brought within six calendar mouths after the executors or administrators have taken upon themselves the administration of the deceased person's estate. See enabled to sue the wrongdoer for damages at law in the assignor's name in the same manner as an insurer, who has paid compensation for damages caused by a wrong, may have the benefit of any action maintainable against the wrongdoer for the tort (g).

Re Williames, 52 L. T. 41. (c) Note (y), above.

(d) See also Erskine v. Adeane, L. R. 8 Ch. 756, 760 ; Morgan v. Ravey, 30 L. J. Ex. 131; Jenks v. Clifden, 1897, 1 Ch. 694.

(e) Above, p. 747; Co. Litt. 368b: Vin. Abr. Maintenance (B., C.); Prosser v. Edmonds, 1 Y. & C. 481; Be Hoghton v. Money, L. R. 2 Ch. 164, 169; Ball v. Warwick, 50 L. J. C. P. D. 382; James v. Kerr, 40 Ch. D. 449; Gay v. Churchill, 40 Ch. D. 481, 485. The question, to what extent a right of action in tort is assignable, is discussed by the writer in L. Q R. x. 147 sq., and Wms. Pers. Prop., 148 - 150, 15th ed.

(/) See above, pp. 747, 748.

If a contract for the sale of land be lawfully rescinded, before completion, on the ground of misrepresentation, the party rescinding is entitled to be recouped all payments made and expenses incurred by him in the discharge of any obligation imposed on him by the contract, and to be indemnified against all liabilities assumed by him pursuant to any such obligation: but he is not entitled, where the misrepresentation was not fraudulent, to recover damages for what may be called his collateral losses - those which were not occasioned by or in the course of his discharge of some duty under the contract (h). Thus if the party rescinding be the purchaser, he is entitled to recover his deposit or any other instalment of his purchase money paid by him, with interest thereon at the rate of 4l. per cent, per annum, and to be recouped his expenses of the investigation of title (i); and he has a lien on the land sold for the amount so due to him until repayment (k). But if one be induced to buy land by a false representation innocently made that it is fit for the purposes of some particular business, and enter into possession pending completion, but pursuant to the contract, and carry on the business there at a loss, and then discover the untruth of the representation and rescind in consequence, he cannot recover compensation for his losses in the business (l). If the vendor of land rescind the contract, pending completion, because of misrepresentation, it is submitted that, on the principles above stated, he is entitled to be recouped his expenses of proving his title pursuant to the obligation in that behalf imposed upon him by the contract. But it seems questionable whether either party rescinding for innocent misrepresentation can recover his expenses of entering into the agreement; this loss seems to be in the nature of damage suffered by reason of the representation rather than outlay made in discharge of an obligation imposed by the contract (m). If, however, the representation were fraudulent, the defrauded party would be entitled to recover all damages attributable to the fraud, and he would certainly have the right to be re-imbursed these expenses (n); and it appears that, in the case of a defrauded purchaser, he should have a lien for them (o).

On what terms the contract will be rescinded before completion.

Purchaser's lien, where the contract is rescinded.

(g) See Randal v. Cockran, 1 Ves. sen. 98; Mason v. Sainsbury, 3 Doug. 61, 64; Tales v. Whyte, 4 Bing. N. C. 272, 283, 284; Simpson v. Thomson, 3 App. Cas. 279, 284 - 286, 290 - 295; Castel-Iain v. Preston, 11 Q. B. D 380, 388, 403, 404; King v. Victoria Insurance Co., 1896, A. C. 250; Wms. Pers. Prop., 149, 150, 15th ed.; L. Q. R. x. 150, 151, 156, 157.

(A) Redgrave v. Surd, 20 Ch. D. 1; Newbigging v. Adam, 34 Ch. D. 582, 589, 593 - 595, 596;

Adam v. Newbigging, 13 App. Cap. 308, 324, 331; Whittington v. Seale-Hayne, 82 L. T. 49, 51.

(i) Smith v. Land and House Property Corp., 28 Ch. D. 7, 9.

(k) Wythes v. Lee, 3 Drew. 396; Rose v. Watson, 10 H. L. C. 671, 682; Aberaman Ironworks v. Wickens, L. R. 4 Ch. 101, 109, 110; Mycoch v. Beatson, 13 Ch. D. 384; Whitbread & Co. v. Watt, 1901, 1 Ch. 911, 1902, 1 Ch. 835; Kitton v. Hewett, 1904, W. N. 21; and see Ridout v. Fowler, 1904, 1 Ch. 658.

(l) Whittington v. Scale-Hayne, 82 L. T. 49. It is submitted that this case and those cited above, p. 732, n. (c), show that it is no bar to the right to rescind a contract for innocent misrepresentation that the purchaser has taken possession, pending completion, in pursuance of the contract; and that under the present law the case of Blackburn v. Smith, 2 Ex. 783, is no longer of authority on this point; and see above, pp. 151, 152. The mere occupation of land is not considered, in equity at least, to prevent restitutio in integrum: although the commission of waste, as in working mines, may have that effect; above, p. 746. Where a contract for the sale of land is rescinded for misrepresentation, innocent or fraudulent, before completion but after the purchaser has taken possession under the contract, it is thought that the like accounts would be ordered to be taken, for the purpose of replacing the parties in their former position, as are directed when the contract is set aside for fraud after completion; see below, p. 752.