When 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 to be the purchaser of the lot, as well as to the parties in the cause.2 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.

The order is, in general, drawn upon the condition that the party applying do immediately pay the deposit. He must also bear the expense of paying in his deposit, and pay the costs of the first purchaser. When the first purchaser has paid in his money, and the purchase-money or any part of it has not been laid out, he must pay interest at the rate of four per cent on the money, or such part of it as the Master shall find to have lain dead. When, however, the purchase-money has been laid out at the instance of the purchaser, he must take back the stock, whether the funds have fallen or risen since the investment.5 The the control of the party complaining. Eberhart v. Gilchrist, supra; Campbell v. Gardner, 3 Stockt. (N. J.) 423. Where the sale is made of mortgaged premises by decree of the Court, upon an application of the mortgagee, and the mortgagee is the purchaser, the Court will regard an application for a resale with greater indulgence than when a stranger is the purchaser. Campbell v. Gardner, supra. Surprise is one of the grounds on which the Court interferes, and orders a resale, when the property has been sacrificed. But the Court will not generally interfere, where the surprise is owing to the negligence of the party complaining, and might have been avoided by ordinary prudence and attention on his part. Parkhurst v. Cory, 3 Stockt. (N. J.) 233. Upon these principles an order for resale was refused, where a party to the suit, who was entitled to the surplus money on a sale of mortgaged premises, was so far deprived of his eyesight as not to be able to read a newspaper, and alleged that on this account he did not see the advertisement of the sale, and that in consequence of his absence from the sale the property was sold at a sacrifice. Ib.

A sale will not be opened for a party who has notice of a suit, on any ground which might have been interposed as a defence, unless the party was prevented making it by fraud or mistake. Hall v. Urquhart, 3 Stockt. (N. J.) 318.

1 But where the application to set aside a sale was made on account of a fraudulent combination to suppress competition, it was held that it should be done by original bill setting forth the grounds, and not by mere suggestion or motion, especially after the sale had been confirmed. McMinn v. Phipps, 3 Sneed (Tenn.)

196.

1 Sugd. V. & P. 66.

'Anon. 6 Ves. 512; Young v. Teague, 1 Bailey Ch. 13.

1 Sugd. V. & P. 66.

Ibid. 71; ante, p. 1283.

applicant must also, if the estate has been sold in several lots, and he applies to have it resold in one lot, pay the original purchasers any charges and expenses they may have been put to, in having surveys made, &c., preparatory to the bidding.1

When biddings are opened and a resale takes place, the person at whose instance the biddings were opened will, if he is outbid at the resale, be discharged, and will be entitled to receive back his deposit; 2 but he will not be entitled to an allowance for his costs, as they are in the nature of a premium paid by him for the opportunity of bidding. Where, however, the biddings have been opened for the express benefit of the family, costs have been allowed.4

Sales by Private Contract.

It has been stated, that where an estate is sold by order of the Court, the sale is generally effected by public auction; the Court will, however, where it is for the interest of the parties, depart from its usual course and allow of the property being disposed of by private contract; it is, however, to be observed, that where there has been a decree for sale before the Master in the ordinary form, the parties will not be at liberty to depart from that form, without an order to warrant it; 5 and, it seems, that 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 the decree.6

The proper course for an individual to pursue who is desirous of purchasing, by private contract, an estate which has been directed to be sold before the Master to the best purchaser, is, to make a proposal to the vendor, or to the plaintiff in the cause, and to procure him, or some other party in the cause, to make an 1 See ante, 1287.

2 Williams v. Attenborough, T. & R. 77.

Rigby v. M'Namara, 6 Ves. 466; Earl of Macclesfield v. Blake, 8 Ves. 214; Trefusis v. Clinton, 1 V. & B. 361.

* Earl Macclesfield v. Blake, supra; Owen v. Foulks, 9 Ves. 348; West v. Vincent, 12 Ves. 6; Trefusis v. Clinton, 1 V. & B. 361; Chapman v. Fowler, 3 Hare, 577; Filder v. Bellingham, 1 Col. 526.

See Annesley v. Ashurst, 3 P. Wms. 283.

1 Sugd. V. & P. 64.

application to the Court, for an order to refer it to the Master to inquire, and state to the Court whether it will be for the benefit of the parties interested in the estate, that his proposal should be accepted. Sometimes, in cases of this nature, a contract is actually entered into by the parties, subject to the approbation of the Master, before any application is made to the Court,1 the advantage of which course appears to be, that a definite arrangement is entered into, subject to the Master's approval, before any expense is incurred, either before the Court or before the Master.2

Where an estate has been put up for sale in lots, and either the whole or any of the lots are unsold, the practice is to move the Court for an order, that the plaintiff may be at liberty, with the approbation of the Master, to sell, by private contract, all or any part or parts of the premises which, by the decree, were directed to be sold, which had not then been sold or disposed of, subject to such terms and conditions as the Master shall think fit. The order is drawn up in the terms of the notice, and gives the Master liberty to approve of any such contract or contracts, and to settle the conveyances consequent thereon, in case the parties differ about the same. The plaintiff's solicitor then enters into a written contract, with any person willing to purchase, "subject to the approbation of the Master." When this has been done, a state of facts, stating the contract, is carried into the Master's office, and proceeded upon in the usual manner. This state of facts should be supported by an affidavit of a surveyor, or other competent person, that the terms of the contract are fair, and that it will be beneficial to the estate that the same shall be carried into effect.

If, upon such reference, as above pointed out, the Master reports in favor of the contract, a petition must be presented and served praying that the Master's report may be confirmed, and that the contract may be carried into effect. The order made upon this petition usually directs all proper parties to join in and execute the necessary conveyance to the purchaser, or as he shall direct, such conveyance to be settled by the Master in case the parties differ about the same. The title is then investigated, the

The deed of conveyance should be approved by the Court. Dickerson v. Talbot, 14 B. Monroe (Ky.) 60.

purchase completed, and the conveyance executed in the same manner as upon a purchase at a sale.1

SECTION VII.

Master's Report.

A REPORT is "a Master's certificate to the Court how the facts or matters referred to him are or do, upon examination, appear to him, or of something of which it is his duty to inform the Court." 2

Formerly there appears to have been an opinion prevalent in the profession, that there was a difference between a report and a certificate. In Jones v. Powell,3 Sir A. Hart, V. C. said, that the difference between a report and a certificate was, that with respect to the former, the Court had laid it down as an inflexible rule, that before exceptions could be taken to it, objections must be carried in before the Master; but that there was no such rule with respect to the latter. In Chennell v. Martin, however, the V. C. of England, after a very careful investigation of the subject, came to a different conclusion, and expressed his opinion to be that there is no distinction between a Master's report and a Master's certificate, and that Master's reports and Master's certificates are convertible terms.

Master's reports are either general or separate. General reports embrace the whole matter referred to the Master by a particular decree or order; but a separate report embraces only one distinct object of the reference.

Separate reports are made in cases in which it may be inconvenient to the parties to wait till the general report for the opinion of the Master, upon a particular matter before him under the decree. By the old practice of the Court, a separate report could not be made without a special direction in the decree, or special

1 2 Smith, 233, 3d ed.

2 Prac. Reg. 377; see Herrick v. Belknap, 27 Vermont, 695, 696.

81 Sim. 387.

+ 4 Sim. 340.

'See Kennedy v. Kennedy, 3 Ala. 434.

order made upon motion or petition for that purpose, which, however, was granted for asking, at the expense of the party applying;1 but, by the 70th Order of 1828, it is provided,

"That in all matters referred to him, the Master shall be at liberty, upon the application of any party interested, to make a separate report or reports, from time to time, as to him shall seem expedient; the costs of such separate reports to be in the discretion of the Court."

The party desirous of obtaining a separate report, must take out a warrant to show cause why a warrant on preparing a draft of such separate report should not be issued, and, if the Master concurs in his view of the subject, the warrant issues and the separate report is prepared accordingly. If no cause is shown upon the return of this warrant, a warrant to prepare the report must be issued and served, after which no further evidence can be received as to the matter to be comprised in the separate report.3

The form, manner of preparing, objecting, and excepting to,1 and confirming separate reports, are nearly the same as upon general reports, the only difference being, that when it is intended to act upon them, the cause is not set down for hearing upon further directions, as it is upon a general report, but a petition must be presented to the Court, praying such directions as arise out of the separate report.

It is to be observed, that, in order to facilitate the progress of a suit instituted for the administration of the assets of a person deceased, it is provided, by the 71st Order of 1828,

"That where a Master shall make a separate report of debts or legacies, there the Master shall be at liberty to make such certificate as he thinks fit, with respect to the state of the assets, and that every person having an interest shall, thereupon, be at liberty to apply to the Court as he shall be advised."

The object of this order, is to enable the parties, when it shall appear that the funds are more than sufficient to satisfy debts and legacies, to make such applications, with regard to the residue of

12 Harr. ed. Newl. 478.

3 Smith, 171, 3d ed.

Ante, p. 1179.

Where a party to a suit objects to a separate report, he must except to it in the usual manner, and cannot proceed by petition. Drever v. Maudesley, 7 Sim.