S.L. Independence Fishing Co. Ltd v Rocca, 1972-73 ALR S.L. 138

5 10 15 20 25 30 SECTION 21 THE AFRICAN LAW REPORTS and that there has been no agreement to surrender by the defend­ ant. In the circumstances, I dismiss the plaintiffs' claim with costs to be taxed. Suit dismissed. SIERRA LEONE INDEPENDENCE FISHING COMPANY LIMITED v. ROCCA and BARBERA High Court (Tejan, J.): October 6th, 1972 (Civil Case No. 202/72) [1] Civil Procedure-pleading-amendment of pleadings-application nor- mally by summons but court may give leave to amend during hearing­ no amendment if would cause injustice, make substantial change in type of action or still leave plaintiff with no title to sue at date of writ: Although an application for leave to amend pleadings should usually be made by summons the court has inherent jurisdiction to give leave to amend during the hearing but should do so only if it can be made without injustice to the other party and should refuse to do so when the amend- ment would change the action into one of a substantially different kind which could conveniently be the subject of a fresh action or where the amendment would still leave the plaintiff without any title to sue at the date of the writ (page 140, line 38- page 141, line 23). [2] Civil Procedure-writ of summons-name of party-when misnomer crucial-writ issued in name of non-existent plaintiff void and such irregularity may not be rectified: An irregularity in pleadings which renders the proceedings void cannot be rectified, so that if a writ is served in the name of a non-existent plaintiff, such as a company de­ scribed as "Limited" but not in fact of limited liability, the writ is void and the defendant cannot therefore be held to waive the irregularity by entering an unconditional appearance and taking part in the proceedings before the error is discovered (page 142, lines 6-17, lines 34-40). [ 3] Companies-name-name in litigation-when misnomer crucial-writ void if issued in name of company described as "Limited" but not in fact of limited liability: See [ 2] above. The plaintiffs, suing in the name of the Sierra Leone Indepen- 35 dence Fishing Co. Ltd., brought an action against the defendants in the High Court. During the trial the defendants and the plaintiffs' counsel discovered that the plaintiffs' company had never been a limited liability company. The plaintiffs sought leave to amend the writ 40 by deleting the word "Limited'' and substituting the names of the two partners in the company. 138 I S.L. INDEPENDENCE FISHING co. LTD. "· ROCCA, 1972-73 ALR S.L. 138 i , H.C. The defendants opposed the application contending that the writ was void, having been issued in the name of a non-existent company, and that the rules relating to amendments did not cover such fundamental irregularities. The plaintiffs submitted that the writ was not void ab initio and 5 that the error was curable. They also contended that, by entering an unconditional appearance, the defendants had waived their right to set aside the writ. The plaintiffs' application was dismissed and the writ set aside as a nullity. 10 Cases referred to: (1) Australian Steam Navigation Co. v. Smith & Sons (1889), 14 App. Cas. 318; 61 L.T. 134. (2) Basma v. New India Assur. Co., 1964-66 ALR S.L. 198, distinguished. (3) Budding v. Murdoch (1875), 1 Ch. D. 42; 45 L.J. Ch. 213. (4) Clay v. Oxford (1866), L.R. 2 Ex. 54; 15 L.T. 286, followed. (5) Creed v. Creed, [1913] 1 I.R. 48. (6) Davies v. Elsby Bros. Ltd., [1961] 1 W.L.R. 170; [1960] 3 All E.R. 672. (7) Etablissement Baudelot v. R.S. Graham & Co. Ltd., [1953] 2 Q.B. 271; [1953] 1 All E.R. 149, distinguished. (8) Ives v. Brown, [1919] 2 Ch. 314; (1919), 122 L.T. 267. (9) Mac{oy v. U.A.C. Ltd., [1962] A.C. 152; [1961] 3 All E.R. 1169, dicta of Lord Denning considered. (10) Alexander Mountain & Co. v. Rumere Ltd., [1948] 2 K.B. 436; [1948] 2 All E.R. 482. (11) Pearlman (Veneers)S.A. (Pty.)Ltd. v.BemhardBartels, [1954] 1 W.L.R. 1457; [1954] 3 All E.R. 659. (12) Raleigh v. Goschen, [ 1898] 1 Ch. 73; (1898), 77 L.T. 429. (13) Tetlow v. Orela, Ltd., [1920] 2 Ch. 24; (1920), 123 L.T. 388. (14) Tildesley v. Harper (1878), 10 Ch.D. 393; 39 L.T. 552, dicta of Bram­ well, L.J. applied. Legislation construed: High Court [formerly Supreme Court] Rules (Laws of Sierra Leone, 1960, 15 20 25 30 35 cap. 7), O.XII, r.2: 40 The relevant terms of this rule are set out at page 141, lines 27-32. 139 THE AFRICAN LAW REPORTS O.L, r.l: The relevant terms of this rule are set out at page 142, lines 25-30. Marcus-Jones for the plaintiffs; C.N. Rogers-Wright for the defendants. 5 TEJAN,J.: This is an action brought by the plaintiffs in the name of Sierra Leone Independence Fishing Co. Ltd. At the close of the evidence of the representative of the plaintiffs, it came out that the plain­ tiffs' company is not and never was a limited liability company. 10 Counsel for the plaintiffs at this stage sought leave to amend the writ of summons by deleting the word "Limited" and adding the words "E.W. Satori and Teddy Jones as partners." Counsel for the defendants objected to the application and presented the following argument. The action commenced in the 15 name of an incorporated company and this means that on the date of the issue of the writ, there should have been in existence such a person or entity, but in fact such person or entity was not on that date entitled to sue. Mr. Rogers-Wright further argued that a writ of summons was not available to an unborn child or a dead man, 20 and that the application to amend only sought to make lawful on September 22nd, 1972 what was not lawful on May 2nd, 1972, the date of issue of the writ. He also argued that if the amendments were allowed, it would mean that a writ which should never have been before the court 25 was now brought before the court by a device, and that this was not the purpose of the rules relating to amendments; and that amendments were limited to correcting an irregularity or making better what was not clear. Mr. Rogers-Wright then referred to the case of Macfoy v. U.A.C. Ltd. (9) and particularly to the judgment 30 delivered by Lord Denning. Dr. Marcus-Jones for the plaintiff submitted that the writ was not void ab initio and referred me to the case of Basma v. New India Assur. Co. (2). Dr. Marcus-Jones also submitted that the fact that an unconditional appearance was entered deprived the defend- 35 ants of their right to set aside the writ. He then made reference to O.XII, r.2 of the High Court Rules (cap. 7), as amended, and submitted that the error in the present case was curable. Usually an application to amend in such a case is to be made by summons, but as the court has inherent jurisdiction to amend, 40 such application can be made at the hearing and leave granted: see Budding v. Murdoch (3) and lues v. Brown (8). 140 S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L. 138 H.C. With regard to the general principles of when leave to amend should be given, Bramwell, L.J. said in the case of Tildesley v. Harper (14) (10 Ch. D. at 396; 39 L.T. at 553): "My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala 5 fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise." However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment 10 should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs: see also Australian Steam Navigation Co. v. Smith & Sons (1). The attitude of the courts leans favourably towards the granting 15 of amendments, and an amendment cannot be refused because it introduces a new case: see Budding v. Murdoch (3). But the court will refuse an amendment where the amendment would change the action into one of a substantially different character which could conveniently be the subject of a fresh action: see Raleigh v. 20 Goschen (12), or where the amendment would still leave the plaintiff without any title to sue at the date of the writ: see Creed v. Creed (5). Dr. Marcus-Jones has referred me to O.XII, r.2 of the High Court Rules (cap. 7), as amended. The provision of this rule is 25 that: "Where an action has been commenced in the name of the wrong person as plain tiff . . . the court may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in 30 dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just." This provision is substantially the same as is provided in O.XVI, r.2 of the English Rules. The English Rules provide that: "Where an action has been commenced in the name of the 35 wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Judge may, if satisfied that it has been so com- menced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, 40 order any other person to be substituted or added as plaintiff 141 THE AFRICAN LAW REPORTS upon such terms as may be just." In the case before me, it was after the cross-examination of the representative of the plaintiffs' company that Mr. Rogers-Wright made his discovery that the plaintiffs' company was suing in a 5 wrong name, since the company is hot a limited liability company. It is argued that since the defendants participated in the pro­ ceedings after the service of the writ, they have waived any right they had to apply for the writ to be declared void and therefore a nullity. I am satisfied that it was at the close of Mr. Satori's evi- 10 deuce that Mr. Rogers-Wright made his discovery, and since the defendants have taken no part in the proceedings after discovering that the plaintiffs' company was not a limited liability company, I think they have the right to ask the court to declare the issue of the writ void. I am equally satisfied that the failure of Dr. Marcus- 15 Jones to have issued the writ in the proper name of the company was a genuine mistake and that there has been no mala fides in his application. The whole question to be decided is whether the writ is void because of a misnomer which goes to the root of the matter or 20 whether it is voidable because of a mere irregularity which does not go to the root of the matter. In order to decide this, I have to consider the effect of non-compliance with any of the rules of the High Court. Order L, r.1 of the High Court Rules (cap. 7), as amended, says that: 25 "Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such a 30 manner and upon such terms as the court shall think fit." Dealing with this provision in his judgment in the case of Macfoy v. U.A.C. Ltd. (9) Lord Denning said ([1962] A.C. at 159; [1961] 3 All E.R. at 1172): "This rule would appear at first sight to give the court a 35 complete discretion in the matter. But it has been held that it only applies to proceedings which are voidable, not to pro­ ceedings which are a nullity: for those are automatically void and a person affected by them can apply to have them set aside ex debito justitiae in the inherent jurisdiction of the 40 court without going under the rule .... " In dealing with what act is void or voidable, the learned Lord of 142 S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L. 138 H. C. Appeal said ( [1962] A. C. at 160; [1961] 3 All E.R. at 1172) that­ "the distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more 5 ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and uncurably bad. You cannot put some- thing on nothing and expect it to stay there. It will collapse . . . . But if an act is only voidable, then it is not automatically 10 void. It is only an irregularity which may be waived. It is not to be avoided unless something is done to avoid it. There must be an order of the court setting it aside: and the court has a discretion whether to set it aside or not. It will do so if justice demands it but not otherwise. . . . No court has 15 ever attempted to lay down a decisive test for distinguishing between the two: but one test which is often useful is to suppose that the other side waived the flaw in the proceed- ings or took some fresh steps after knowledge of it. Could he afterwards, in justice, complain of the flaw?" 20 In Macfoy's case (9), a Privy Council case, Macfoy's application to declare a statement of claim a nullity failed because after having knowledge of it, he took steps in the proceeding. In the judgment, the following passage of the West African Court of Appeal was recorded ([1962] A.C. at 161; [1961] 3 All E.R. at 25 1173): "The defendant knew when the statement of claim was delivered to him, and he knew it was then vacation. He made no application in the court below to set aside the statement of claim as having been delivered irregularly; he did not raise 30 the point in any way until he appeared in this court to argue the appeal, over eight months after the statement of claim had been delivered. Instead of applying to have the statement of claim set aside, he allowed judgment to go against him by default and then moved to have the judgment set aside. In 35 that application, he proceeded on the basis that the judgment was a regular and subsisting one. In support of the appli- cation, he made an affidavit with the object of showing that he had a defence on the merits, and set out certain averments intended to establish a basis of fact for that contention." 40 Having referred to Macfoy 's case (9), I shall now consider the 143 THE AFRICAN LAW REPORTS conduct of the defendants in the present case. The writ of sum­ mons to which was attached the statement of claim was issued on May 2nd, 1972. The writ and the attached statement of claim was headed: 5 "Sierra Leone Independence Fishing Co. Ltd. and Domenico Rocca & Giovanni Barbera." There is no question that the writ and the statement of claim were served on the defendants in the above form. The defendants consulted counsel who, like the defendants, accepted the docu- 10 ments in the form they were served. Counsel for the defendants then entered a caveat on May 4th, 1972 and an unconditional appearance on May 5th, 1972. Thereafter, the proceedings con­ tinued in the name of Sierra Leone Independence Fishing Co. Ltd. There has been nothing either from the pleadings or evidence to 15 show that the defendants or their counsel knew that the company was not a limited liability company. I am equally certain that Dr. Marcus-Jones was at no time throughout the proceedings aware that the plaintiffs' company was not a limited liability company until the fact came out under cross-examination of Mr. Satori. 20 Perusing the case file for assistance, I find that Mr. Satori knew that his company was referred to as a limited liability company when a letter written by Mr. Rogers- Wright on behalf of the defendants described the company as a limited liability company. This letter was dated March 3rd, 1972. Mr. Satori also signed and 25 swore to his affidavit dated May 11th, 1972 and he must have been expected to see that the heading of the affidavit he signed and swore to described the company as a limited liability company. In these circumstances, one would have expected Mr. Sa tori to call the attention of his solicitor to this mistake. Leaving whatever 30 conclusion I might come to from the judgment in Macfoy 's case (9 ), I shall now proceed to refer to some of the authorities in connection with this matter. It seems to me that apart from the rules of court, the pro­ cedure in this kind of case is governed almost entirely by the 35 Common Law Procedure Act, 1852. In the case of Pearlman (Veneers) S.A. (Pty) Ltd. v. Bernhard Bartels (11) the plaintiffs obtained judgment, and the court held that there was jurisdiction to amend the proceedings, including the judgment, to describe the defendant as Joseph Bartels, trading 40 as Bernhard Bartels, on the ground that there had simply been a misdescription. 144 S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L.l38 H.C. In the case of Etablissement Baudelot v. R.S. Graham & Co. Ltd. (7) the plaintiffs, the heirs under the will of a deceased Frenchman who were carrying on his business, issued a writ against the defend­ ants for the price of goods sold and delivered. In intended com- pliance with O.IV, r.1 of the English Rules of the Supreme Court 5 there was indorsed on the writ a statement that the plaintiffs were a company incorporated according to the laws of France, the plaintiffs' solicitors having been so advised by French lawyers. In fact, that was not correct, as there had been no formal act of incorporation. The defendants applied to strike out the name of 10 the plaintiffs and all subsequent proceedings, whereupon the plaintiffs applied to amend the writ by adding as plain tiffs the names of the individuals who were actually carrying on the business. It was held by Sellers, J. that the case was not one in which the writ had been issued of a non-existent person as plaintiff, but one 15 of misnomer of the plain tiffs and accordingly, the court had power to make the amendment. The case went to the appeal court which upheld the decision of Sellers, J. after taking into consideration the facts in the case. In his judgment Singleton, L.J. referring to the case of Clay v. Oxford (4), quoted a passage in the judgment 20 of Bramwell, B. as follows ([1953] 2 Q.B. at 276; [1953] 1 All E.R. at 150): " 'It cannot be said that this is an amendment "necessary for the purpose of determining in the existing suit the real question in controversy between the parties," nor is this an 25 application made between the parties to the suit; for there is no plaintiff, and, therefore, no existing suit, and no question in controversy between the parties.' " The learned Lord Justice went on to mention O.XVI, r.2 of the English Rules of the Supreme Court referred to in the judgment of 30 Russell, J. in Tetlow v. Orela (13) in which the learned judge said ([1953] 2 Q.B. 277; [1953] 1 All E.R. at 150): "'In my opinion that rule means that, where an action has been commenced between two living parties by a living plain- tiff, and the living plaintiff afterwards turns out to be the 35 wrong person, an application may be made to the court, and the court can substitute another person for the living plaintiff or may add another person as co-plaintiff as the case may be. But it does not justify the court in creating a plaintiff in an action for the first time.' " 40 It is apparent that in each of these cases, there had been a living 145 THE AFRICAN LAW REPORTS plaintiff. In the case of Clay v. Oxford (4) the action was commenced on May lOth, in the name of John Clay, as plaintiff. It was afterwards discovered that John Clay had died before the date of the writ, 5 and on June 14th, a summons was taken out to substitute the names of the executrix and executors as plaintiffs. The summons was abandoned but on November 7th, another summons to the same effect was taken out before Martin, B. who made the order prayed for. This order was reversed on appeal by Kelly, C.B., 10 Bramwell, B. and Channell, B. In his judgment Kelly, C.B. said (L.R. 2 Ex. at 54; 15 L.T. at 287): "It may, perhaps, be regretted that the Common Law Pro­ cedure Act has not authorised the substituting of one plain­ tiff for another, or one defendant for another, in a case like 15 this; but we have no power, either by common law or by statute, to do what is asked. Since the Common Law Pro­ cedure Act of 1852, by the 34th and following sections, in express terms enables the Court to add or to strike out any number of plaintiffs, and by the 136th and following sections, 20 gives a similar power of allowing the representatives of a deceased plaintiff to continue the suit, but contains no pro­ visions in any part of it for substituting one plaintiff for another, one suing in a representative capacity for a deceased man who never was a party, I cannot but think that no such 25 power was meant to be given. The rule must, therefore, be made absolute." In the same case Bramwell, B. said (L.R. 2 Ex. at 55): "I think such a substitution was not within the intention of the act. This is not a case where it can be said that persons, 30 not formally entitled to be parties, have brought an action to try certain matters perfectly well known to both sides .... But here the plaintiff is altogether wrong, or rather there is no plaintiff; the man in whose name the action was brought was dead." [These words do not appear in the report of the 35 case at 15 L.T. 286]. In the case of Tetlow v. Orela, Ltd. (13) Russell, J. gave judgment to the same effect as in Clay 's case ( 4). The case of Alexander Mountain & Co. v. Rumere Ltd. (10) was tried by Lord Goddard, C.J., who held that the action having been 40 begun in the name of a dead man, his executrix could not be substituted as plaintiff. This decision of Lord Goddard, C.J. was 146 S.L. INDEPENDENCE FISHING CO. LTD. v. ROCCA, 1972-73 ALR S.L. 138 H.C. reversed on appeal by Cohen, L.J. and Scott, L.J. who held that it was a mere misnomer. In his judgment Cohen, L.J. made reference to the Law Journal Newspaper of May 9th, 1942, and from that article, he quoted the following passage ( [1948] 2 K.B. at 441; [1948] 2 All E.R. at 484): 5 " 'It is submitted that there never was a time, not even in the days before the rigour of the procedure at common law had been modified by statute, when such judgment on the trial of an action could have been appropriate in a mere case of misnomer. It may be doubted whether it would have occurred 10 to anyone in the above case to suggest a judgment in this form if the plaintiff had been an individual, one of whose names had been omitted, or wrongly abbreviated instead of a corporation. There is however no magic in the name of a corporation. It is true that a corporation, whether limited or 15 otherwise, can sue only in its corporate name .... A mistake in the name of a party to the suit is ground for 'a plea in abatement only, and cannot be objected as a variance at the trial.' That is to say, if the plain tiff's name did not correctly appear in the writ, the defendant could formerly plead this 20 in order to defeat the action in the particular form in which it was originally brought, but this did not prevent the plain- tiff bringing another action in proper form .... A plaintiff, whether an individual or a corporation is, of course, still required to bring his action in his proper name. There does 25 not appear to be any specific rule of court dealing with the matter, nor do the rules of court deal with misnomers in any way. It therefore appears that Or. 72, r.2 applies; i.e. 'the present procedure and practice' (that is the practice in force when the rules of 1883 were framed) remains in force, and 30 the defendant by summons, supported by affidavit, could compel the plaintiff to amend. If he does not do so, and the matter proceeds to trial, it is submitted that the misnomer can then be amended, and that in no circumstances could the misnomer affect the substantive judgment which the 35 court is called upon to pronounce.' " Although the above passage is a newspaper report, yet Cohen, L.J. made use of the passage, but it seems from the passage that the writer was dealing, among other things, with misnomers in particu- lar. ~ I now refer to the case of Basma v. New India Assur. Co. (2). 147 THE AFRICAN LAW REPORTS I have referred to this case because it has been cited, but the decision being the decision of a High Court judge, Marke, J., is not binding on me. In this case the defendants were described in the writ as "The New India Assurance Co." instead of "The New India 5 Assurance Co. Ltd." Mr. King, who represented the defendants, argued that all corporations must be sued in their corporate names, and as the defendant was not sued in its corporate name, the writ must be set aside. In his judgment Marke, J. referred (1964-66 ALR S.L. at 199) to the case of Davies v. Elsby Bros. Ltd. (6), in 10 which Devlin, L.J. said: " 'How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself 'Of course it must mean me, but they have got my name wrong,' then 15 there is a case of mere misnomer.'" But in the present case, the names of the defendants have not been got wrong. Their proper names were put down in the writ of summons. The question now arises whether the plaintiffs are entitled to an 20 application for amendment. I have referred to many authorities, and I find that the all-important point when considering whether an amendment should be allowed or not, is whether the Sierra Leone Independence Fishing Co. Ltd. was in existence at the date of the issue of the writ or, as one of the authorities puts it, whether 25 the plaintiff was a living plaintiff on the date of the issue of the writ. There is no doubt that the Sierra Leone Independence Fishing Co. Ltd. was not on May 2nd, 1972 in existence, or a living plaintiff. There is still no company by that name. Moreover, the defendants have done nothing in the proceedings since they 30 discovered that the plaintiffs' company named on the writ, is not in existence. I have followed the proceedings carefully, and if any mistake has been made, it has been the mistake of Mr. Satori, the plaintiffs' representative. Dr. Marcus-Jones, I believe, filed his pleadings strictly according 35 to his instructions. Even when a letter in connection with this case was addressed to Mr. Satori as manager of the Sierra Leone Inde­ pendence Fishing Co. Ltd. he failed to call the attention of his solicitor to the error. I have no doubt that Dr. Marcus-Jones would have rectified the matter if his attention had been called to it. 40 However, following the authorities cited above, I regret that I cannot allow the amendment. I accordingly set the writ aside as a 148 SECTION 22 LONGSTREATH u. VENN, 1972-73 ALR S.L. 149 H.C. nullity without prejudice to the plaintiffs to institute a fresh action. Costs up to the date of the application and today 's costs are to be taxed and paid by the plaintiffs' company. Writ set aside. LONGSTREATHv.VENN High Court (McCormack, Ag. J.): October 30th, 1972 5 (Civil Case No. 40/72) 10 [ 1] Contract-performance-payment-deposit in contract for sale of land­ deposit recoverable by purchaser if vendor unable to complete: A pur­ chaser of land is entitled to rescind the contract and sue for the return of his deposit and the cost of expenses incurred if the vendor is unable to complete (page 153, lines 31-36). 15 [2) Land Law-conveyancing-purchase money-deposit-deposit recoverable by purchaser if vendor unable to complete: See [ 1] above. [ 3] Succession-administration of assets-disposal of assets-land forming part of estate administered by Administrator-General cannot be sold by beneficiaries in absence of vesting deed or transfer in their favour: The 20 beneficial owners of an estate which is being administered by the Ad­ ministrator-General have no legal right to sell land forming part of it in the absence of a vesting deed or transfer made by the Administrator­ General in their favour (page 153, lines 24-30). The plaintiff brought an action against the defendants to 25 recover a deposit paid by him in respect of the purchase of land. The plaintiff contracted to buy land from the defendants. Although the land was actually in the possession of a third party the defendants alleged that it formed part of their deceased mother's estate which was being administered by the Administrator- 30 General. The latter had, however, made no vesting deed or transfer in their favour. The plaintiff was informed that the deed of conveyance could not be executed immediately due to certain legal difficulties but, being assured that the land belonged to the defendants, he paid a 35 deposit of Le1 ,000 and was told that he might enter into possession. After incurring survey expenses of Le30 the plaintiff discovered that the defendants had no legal right to sell the land. He demanded the return of his deposit but was unsuccessful. The plaintiff then brought the present proceedings, contending 40 that since the vendor had defaulted, he as purchaser was entitled 149