Findlay, J C—The question referred for the consideration of this Full Beach is as follows:

If A agrees to sell a property to B and earnest money or an advance payment of part of the purchase-money is paid to A, and if B subsequently commits a breach of the contract is B entitled to recover from A, the advance payment or earnest money in question?

2. It will be convenient to consider first the question of earnest money simpliciter, leaving out of account the item of an advance payment of part of the purchase money, regarding which it is possible that different legal incidents might arise.

3. This particular matter was considered at great length by Batten and Stanyon, A.J. Cs., in Ballabhdas v-Paikaji (3). It is unnecessary to repeat at length the reasoning of the learned Additional Judicial Commissioners in that judgment. It will suffice to say that the Additional Judicial Commissioners were of opinion that such earnest money or a part payment in advance of the purchase-money made under a stipulation that it shall be forfeited if the purchaser makes default is governed by Section 74, Contract Act, and gives the Courts discretion to deal withthe forfeiture on equitable principle