At the present time, when a vendor and purchaser of land are at variance upon some matter, which prevents the completion of the contract, and neither of them will give way, they usually prefer to submit the point at issue to the Court in a Vendor and Purchaser summons (n); and if the question between them can be decided in such proceedings, it appears that this is the proper course to take (o). Vendor and Purchaser summonses owe their origin to the Vendor and Purchaser to the contract; but he has not found any reported case in which the contract has been rescinded on the purchaser's application. But if the principle above suggested be correct, the purchaser should be equally entitled to the relief of rescission in case the vendor refuse to convey. Apart from statute, which now enables the purchaser to obtain a vesting order, the purchaser would have had no remedy to obtain a conveyance if the vendor did not choose to be coerced by the processes of attachment or sequestration; and in that case it would be obviously inequitable to hold him to the contract.

Act, 1874 (p), which enacted that a vendor or purchaser of real or leasehold estate in England, or their representatives respectively, may at any time or times and from time to time apply in a summary way to a judge of the Court of Chancery in England in chambers, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all or any of the costs of and incident to the application shall be borne and paid.

Vendor and Purchaser summons.

(i) Above, pp. 440, 924, 925.

(k) Above, pp. 44 & n. (b), 930, 931; Seton on Judgments, 2290.

(!) Stat. 51 & 52 Vict. c. 43, s. 67(4).

(m) R. v. Judge Whitehorne, 1904, 1 K. B. 827.

(n) Above, pp. 29 - 32, 947.

(o) See King v. Chamberlayn, 1887, W. N. 158, 159.

Whatever could be done in chambers upon a reference as to title under a decree for specific performance, when the contract was established (q), can be done upon proceedings under this enactment. It enables the parties to put themselves in chambers in exactly the same position in which they would have been, with all the rights which they would have had, under the old form of decree. Evidence by affidavit may therefore be given, and the deponents may be cross-examined (r).

Parties are in the same position as on a reference as to title in an action for specific performance.

The principal questions proper to be decided in a Vendor and Purchaser summons are questions of the construction of the contract (s), questions as to the sufficiency of the vendor's title (t), and questions as to conveyance and the form of the conveyance (u) and the adjustment of accounts in view of the completion of the contract (x). In fact, as a general rule, all questions may be so decided which may arise between a vendor and purchaser on the assumption that there is an unimpeachable contract of sale existing between them, and which must be cleared up before the parties can proceed to completion.

Questions proper to be decided in a V. & P. summons.

{p) Stat. 37 & 38 Vict. c. 78, s. 9, also providing for similar applications to a judge of the Court of Chancery in Ireland. (q) Above, p. 1005 &n. (z).

(r) Re Burroughs, Lynn & Sexton, 5 Ch. D. 601.

(s) See Re Hughes & Ashley's contract, 1900, 2 Ch. 595.

(t) See cases cited above, pp. 949, 950, n. (q).

(u) See above, pp. 130, 131, 145, 146, 563, n. (m), 565, n. (t).

(x) Above, pp. 626, sq.

It will be observed that the Court has no jurisdiction to decide in a Vendor and Purchaser summons any question affecting the existence or validity of the contract. If, therefore, the contention of either party be that no contract was ever formed, or that the contract is not enforceable (as for non-compliance with the Statute of Frauds (y) ), or that it is void for mistake or illegality, or voidable for misrepresentation, fraudulent or innocent (2), for duress or undue influence, or by reason of any relative equitable disability (a), the dispute cannot be settled in a Vendor and Purchaser summons, but the party, who insists on his rights, must assert them by action. It is held, however, that if the controversy between the parties include any question which may properly be determined on a Vendor and Purchaser summons and would require to be settled in case the contract were valid, the Court may decide it in such proceedings, notwithstanding that the validity of the contract (as in case of an alleged misrepresentation) be also disputed (b). We may also note that, as the Act particularly confers jurisdiction to determine claims of compensation, the Court may decide on summons any question respecting that particular form of misrepresentation which consists in failure to show title to the whole property described in the contract, and which is properly the failure to deliver the entire article contracted for (c).

Questions affecting the validity or existence of the contract.

Court may decide any question proper to he dealt with, though the validity of the contract be also disputed.

(y) Above, pp. 3 - 9.

(z) Re Davis & Carey, 40 Ch. D.

601, 607 - 609; Re Hughes & Ashley's contract, 1900, 2 Ch. 595, 602, 604; above, pp. 166, 745, n. (s).

(a) Above, pp. 974, 975.

(b) Re Hughes & Ashley's contract, 1900, 2 Ch. 595. In Re Lander &Bagley's contract, 1892, 3 Ch. 41, it was decided, on the ground that any question of the construction of the contract may properly be determined in a V. & P. summons, that under a contract to grant a lease, not particularly specifying from what day the term was to run, it was intended that the term was to commence on a particular day, notwithstanding that one of the parties raised the contention that the omission to name the day rendered the contract void for uncertainty. This seems to be an extreme instance of the exercise of the jurisdiction.