pay their proportions separately, on account of the confu sion which might ensue (h).

A purchaser under a decree is entitled to be let into possession of the estate from the quarter-day preceding his purchase, paying his money before the following one (i). But this rule does not apply to a colliery, which is considered as a trade. The profits are settled monthly, and therefore the purchaser is entitled to the profits only from the commencement of the month in which he purchased, paying his purchase-money in the course of that month (k).

A purchaser is not entitled to the rents for a period beyond the quarter-day preceding the payment of his money, merely because he has been ready to complete his purchase, and had his money ready lying dead in a banker's hands, for he might have moved to pay the money into court, when it would have been laid out, and this if done by special application, would not have been an acceptance of the title (1).

to pay

If a purchaser enter into possession, he will be compelled the money into court, although he entered with the permission of the parties in the cause. The court only can give such permission (m).

When the report is absolutely confirmed, and every thing arranged, the draft of the conveyance must be drawn by the purchaser's solicitor, and either settled by the master, if the parties insist upon it, or, which is more customary, by a conveyancing counsel of whom the master approves. Sufficient time must be allowed for copics to be made for such parties in the cause as require them, and then warrants must be taken out to proceed on the

(h) Darkin v. Marye, 1 Anst. 22. (i) Twigg v. Fifield, 13 Ves. Jun. 517; see Garrick v. Earl Camden, 2 Cox, 231.; vide post, ch. 10.

(k) Wren v. Kirton, 8 Ves. Jun. 502.

(1)Barker v. Harper, Coop. 32. (m) Anon. L. I. Hall, 16 July, 1816. MS.

draft.

draft. The master's clerk will, at the purchaser's expense, ingross the deed, procure the report or certificate of its being allowed, and then deliver the deeds to the purchaser, and it is usual to obtain the master's signature to every skin. The report must be filed, and an officecopy of it taken (n).

It is usual, however, to so word decrees, that the draft shall not go before the master unless the parties differ. Where this mode is adopted, the business is transacted in the same way as upon a sale by private contract, unless the parties cannot agree, in which case, resort is had to the master.

When the deeds have been properly executed by all necessary parties, an affidavit of the due execution of them must be made, and filed in the affidavit office, and an officecopy of the affidavit must be taken: this being done, the money directed to be paid in consequence thereof, may be procured in the usual manner (o).

If the parties disagree as to the necessary parties, &c. to the conveyance, the master will report his approbation of the draft, as settled by him. To this report exceptions may be taken (p), and then the question will come before the court in a regular way.

So if the parties differ as to the validity of the title to the estate, the master must make his report upon the title, to which exceptions may in like manner be taken (g).

If an estate directed to be sold before a master, is sold by private contract, or in any other manner contrary to the order of the court, and not actually conveyed to the purchaser, the court will not take notice of the sale, but will direct the estate to be sold before the master according to

() 1 Turn. Pract. 145.

(0) 1 Turn. Pract. 145. (p) Lloyd v. Griffith, 1 Dick. 103; Tipping v. Gartside, 2 Fow!.

E 2

Pract. 328; Wakeman v. Duchess of Rutland, 3 Ves. Jun. 504.

(q) For forms of exceptions, see 2 Turn. Pract. 589.

the

the decree (r). And a person who has notice of the decree cannot be advised to purchase the estate unless it be sold before the master (s): And the money should be paid into court and not to the party (t).

If an estate be sold contrary to the order of the court, and the purchaser had notice of the decree, he will have no remedy; but if he bought without notice, he may recover at law for breach of the agreement (u).

A sale before a master is not within the statute of frauds, and after confirmation of the master's report of the best purchaser, the sale will be carried into effect even against the representative of the purchaser, although he did not subscribe; the judgment of the court taking it out of the statute (x).

And even if the authority of an agent not being admitted cannot be proved, yet if the master's report could be confirmed, the sale would be carried into execution unless some fraud were proved (y).

(r) Annesley v. Ashurst, 3 P. Wms. 282; see and consider ex parte Hughes, 6 Ves. Jun, 617. (s) See 2 Vol. Ca. and Opin. 224, 225.

(t) See 2 Scho, and Lef. 581.,

(u) Raymond v. Webb, Lofft, 66; See Mortlock v. Buller, 10 Ves. Jun. 314.

() Attorney-General v. Day, 1 Ves. 218.

(y) S. C.

SECT.

SECTION II.

Of opening the Biddings, and of rescinding the Contract.

THUS

HUS far we have traced a sale before a master where no opposition is made to the absolute confirmation of the master's report of the best bidder, and the sale is regularly concluded. But where estates are sold before a master under the decree of a court of equity, the court considers itself to have a greater power over the contract than it would have were the contract made between party and party (≈); and as the chief aim of the court is to obtain as great a price for the estate as can possibly be got, it is in the habit of opening the biddings after the estate is sold. It seems to have been thought that the same rule may be extended to sales under a commission of bankruptcy (a). This, howover, never has been done, nor is there any reason to apprehend that so mischievous an extension of the rule will ever take place.

Where a person is desirous of opening a bidding, he must, at his own expense, apply to the court by motion for that purpose, stating the advance offered. Notice of the motion must be given to the person reported the purchaser of the lot, and to the parties in the cause (b). If the court approve of the sum offered, the application will be granted, and, on the order being drawn up, entered and served, a new sale must be had before the master.

(2) See 1 P. Wms. 747. (a) Ex parte Partington, 1 Ball and Beatty, 209.

(b) For a form of the notice, see

2 Turn. Pract. 649, 650.

E 3

The

The order is made at the expense of the person opening the biddings, and he must bear the expense of paying in his deposit, and pay the costs of the first purchaser (c): and interest at the rate of 41. per cent. on such part of the purchase-money as the master shall find to have lain dead (d).

Mere advance of price, if the report of the purchaser being the best bidder is not absolutely confirmed, is suf ficient to open the biddings, and they will be opened more than once, even on the application of the same person, if a sufficient advance be offered (e); but the court will stipulate for the price, and not permit the biddings to be opened upon a small advance (f); and, although an advance of 10 per cent. used generally to be considered sufficient on a large sum, yet no such rule now prevails (g); but in the case of a sale under a creditor's suit, the court permitted the biddings to be opened, upon an advance of 5 per cent. on 10,000l. (h).

The determinations on this subject assume a very dif ferent aspect when the report is absolutely confirmed. Biddings are in general not to be opened after confirmation of the report (i): increase of price alone is not suf

(c) 2 Fowl. Pract. 318; 1 Turner's Pract. 131.

(d) This was directed on opening the biddings for Gen. Birch's estate, MS.

(e) Scott v. Nisbitt, 3 Bro. C. C. 475; Hodges v. Jones, 2 Fowl. Pract. 318; see Baillie v. Chaigneau, 6 Bro. P.C. by Toml. 313; Preston v. Barker, 15 Ves. Jun. 140.

(f) Anon. 1 Ves. Jun. 453; Anon. 2 Ves. Jun. 487; Upton v.

Lord Ferrers, 4 Ves. Jun. 700; and Anon. 5 Ves. Jun. 148.

(g) Andrews v. Emerson, 7 Ves. Jun. 420; White v. Wilson, 14 Ves. Jun. 151.

(h) Brooks v.Snaith, 3 Ves, aud Bea. 144,

(i) 2 Ves. Jun. 53 ; Scott v. Nisbitt, 3 Bro. C.C. 475; Boyer v. Blackwell, 3 Anstr. 656; Prideaux v. Prideaux, 1 Bro.C.C. 287, 2 Ves Jun. 53; 1 Cox, 35.

ficient,