of litigation. The plaintiff's solicitor pointed out that the w
drawal must be prompt, otherwise the caveat would lapse. Accord-
ingly the withdrawal was effected promptly, and before the statu
tory period of lapse, and to make sure of the fact of withdrawal t]
clerk of the plaintiff's solicitor went to see it was done. And th:
was all.
The position is not different from that where a man threaten
to sue unless an alleged trespass, or nuisance, or obstruction,
discontinued, and the threat is yielded to. In such a case, as in th
present, the circumstance that leads to submission is not a pron
but a threat. The parties do not intend thereby to create a ne
or a better right, but to observe what is then understood to be
existing right. Such acquiescence may or may not give rise to
cumstances having the effect of estoppel, but it does not create
contract having instant and enduring independent force as a startin
point of the parties' rights. No question of estoppel arises here.
The importance of the point as to contract does not so much relate
to the question of fraud, for it cannot be said that every breach of
contract is a fraud, and, on the other hand, the law does not requi e
the presence of a nominal consideration to constitute a fraud; but
it would have great importance in the event of the field being open,
because it would create a waiver of any equity in the respondent :
resting on the absence of a caveat when the transfer was taken and
partly paid for. I regard the parties in that event as standing
in precisely the same relative situations as those in which they stood
immediately before the arrangement for withdrawal was made. -
But a difference of opinion makes it necessary, or at least respectful,
to state more particularly why I hold the opinion that there was no 4
contract.
Of course there was an agreement that the respondent's caveat -
should be withdrawn. That is, the parties were at one about it.
But to make that agreement a binding contract there must have -
existed two circumstances which were, in fact, absent. One wa:
the intention to make an enforceable contract; the other was a
valuable consideration. i ve
Now, if, for instance, while the defendant's solicitor was on his way_
to the Titles Office to withdraw the dealing, some learned counsel