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Judge himself usually fixes, in the first instance, who are to attend the proceedings. This order of course does not apply to persons summoned to attend, nor to claimants coming in under advertisements, so far as the establishment of their rights is concerned.

The 56th Order directs, that "Costs of counsel attending the Judge in chambers are not in any case to be allowed, unless the Judge certifies it to be a proper case for counsel to attend."

In general, when counsel are employed, the matter is heard in open Court.1

SECTION II.

Sale of Estates.

IT is not within the limits of this treatise to state the various occasions when a Court of Equity will order a sale of real estate.2 Whenever such a step is necessary for administering the estate of a testator, or in any manner carrying out the decree of the Court, the sale is directed, and the order is carried into effect under the superintendence of the Judge or his clerk in chambers. It was not usual, previous to the recent Act for amending the practice of the Court of Chancery, for the Court to direct the sale of real estate upon the first hearing in any suit for the administration of the estate of a deceased person. Such an order was made on further directions, when the necessity for a sale had been established by the Master's report. The Court, however, may now direct a sale of real estate, if it appear desirable, at any time after the institution of the suit, even without a decree. For the 55th section of the 15 & 16 Vict. c. 86, is as follows: "If, after a suit *

1 Hudson v. Carmichael, 18 Jur. 852.

On a reference to a Master in a suit for partition, to ascertain whether a sale is necessary, the question for the Master to decide is, whether the value of the whole property would be materially diminished; and not whether it would be for the benefit of the parties, to turn the estate into money. Clason v. Clason, 6 Paige, 541. Primâ facie a tenant in common is entitled to an actual partition, and his co-tenant seeking a sale, must show the necessity thereof. Davis r. Davis, 2 Ired. Ch. 607.

Prince v. Cooper, 16 Beav. 546.

The word "suit" applies to a claim as well as to a bill.

shall have been instituted in the said Court in relation to any real estate, it shall appear to the Court that it will be necessary or expedient that the said real estate or any part thereof should be sold for the purposes of such suit, it shall be lawful for the said Court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause; and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser or such other person as the Court shall direct."

Such an application for an immediate sale will not be granted if it appears to have been made for the purpose of trying some disputed point, and not in consequence of the necessity for an immediate sale.

It does not appear that this section gives to the Court jurisdiction to sell real estate in cases where no such jurisdiction existed before the Act;1 and this consideration is important to a purchaser, inasmuch as he must satisfy himself, not only that the title is good, but also that the Court had jurisdiction to direct the sale. Thus we have seen 2 in Calvert v. Godfrey, where a sale of an infant's estate was ordered, merely because it was beneficial to the infant, and without there being any person who had a right to call upon the Court to sell the estate for the satisfaction of a claim or debt, it was held that the sale was not within the jurisdiction of the Court, and an objection to the title was allowed. The 48th section of the 15 & 16 Vict. c. 86, does, however, in the case of mortgage estates, give to a Court of Equity additional jurisdiction for the sale of real estates.4

A sale under the direction of the Court is generally conducted by the solicitor for the plaintiff; and he is, in all questions which may arise between the purchaser and the vendor, to be considered as the agent of all the parties to the suit.5

As a general rule a party to the cause is not allowed to become

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6 Beav. 106; Lechmere v. Brasier, 2 J. & W. 287.

On this section, see Hurst v. Hurst, 16 Beav. 372; Wickham v. Nicholson,

19 Beav. 38; Jones v. Baily, 17 Beav. 582; Wayn v. Lewis, 1 Drew, 487.

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Dalby v. Pullen, 1 R. & M. 296; Dale v. Hamilton, 10 Hare, App. vii.

a purchaser at a sale under the order of the Court; but an order, giving leave to a party to the cause to bid and become a purchaser, may be obtained from the Court and inserted in the decree;1 or, if this be omitted, an order to the like effect may be obtained from a Judge at chambers, on notice to the other parties to the suit. Leave, however, will not be given to the particular party having the conduct of the suit, nor to an executor of the testator, or a receiver.1

Where an estate, or other property, is directed to be sold to the best bidder, it is usually sold by public auction, unless the Court or the Judge in chambers specially directs that a different method of disposing of the property shall be adopted, which it will sometimes do, under circumstances which will be hereafter pointed

out.

By the 12th Order of 16th October, 1852, where any order is made directing any property to be sold (unless otherwise ordered), the same is to be sold, with the approbation of the Judge to whose Court the cause or matter is attached, to the best purchaser, to be allowed by him, and all proper parties are to join therein as he shall direct. Consequently the precise direction in the decree to the effect formerly given is now omitted.

The Judge in chambers may now, when any property is directed to be sold, order the same to be sold at such place, either in London or in the country, as he shall think fit.5

Before a sale can take place, certain steps must be taken by the party conducting the sale, with the approbation of the Judge or his chief clerk. The abstract of title must be investigated, the particulars and conditions of sale must be settled, and the estate must be duly advertised.

With respect to the preparation and examination of the abstract, the 15 & 16 Vict. c. 86, s. 56, enacts, that "Before any estate or interest shall be put up for sale under a decree or order of the Court of Chancery, an abstract of the title thereto shall, with the approbation of the Court, be laid before some conveyancing counsel to be approved by the Court, for the opinion of such counsel

1 Seton on Decrees, 609.

Domville v. Barington, 2 Y. & C. 724, Exch. Rep.; Sidney v. Ranger, 12 Sim. 118; Ex parte M'Gregor, 4 De G. & Sm. 603.

Geldard v. Randall, 9 Jur. 1085.

Alvin v. Bond, 1 Hare & K. 196.

Orders of 16th July, 1851, and 58th Order of 16th October, 1852.

thereon, to the intent that the said Court may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser or his solicitor shall be specified in the said conditions of sale."

In order to carry out this and similar provisions in the Act, power was given by the 41st section of the 15 & 16 Vict. c. 80, to the Lord Chancellor, to nominate not less than six conveyancing counsel, to whom business of this description should be referred. Accordingly, six gentlemen have been appointed as conveyancing counsel to the Lord Chancellor, among whom the first or other clerks to the registrars distribute the business by rotation.

The rota is kept secret, but the clerk who distributes the business keeps a record of the references, with proper indexes.

When the Court, or a Judge sitting at chambers, shall direct any business to be referred to any such conveyancing counsel, a short memorandum or minute of such direction is to be prepared and signed by the Registrar, if the same shall have been given in Court, or by the Judge's chief clerk if given in chambers; and the party prosecuting such his claim, or his solicitor, is to take such memorandum or minute to the Registrar's clerk, whose duty it shall be to make such distribution as aforesaid; and such clerk is to add at the foot thereof a note specifying the name of the conveyancing counsel in rotation to whom such business is to be referred; and such memorandum or minute is to be left by the party prosecuting such direction or his solicitor with such conveyancing counsel, and shall be a sufficient authority for him to proceed with the business so referred.

The Court or Judge may make a reference to any one in particular of the conveyancing counsel, where the circumstances of the case may in his opinion render it expedient.1

By a notice at the Registrar's office, the above-mentioned memorandum or minute of the direction to refer any business to conveyancing counsel, is to be taken by the party prosecuting the matter, or his solicitor, to the Registrar's office, between the hours of eleven and one o'clock, to the gentleman nominated for the

1 Orders of 16th December, 1852, and see De Caddick's Settlement, 9 Hare, App. ix.; Harvey v. Brook, 9 Hare, App. xi.

purpose, who will put the name of the conveyancing counsel in rotation on such memorandum or minute.

By the 40th section of 15 & 16 Vict. c. 80, if any party desires to object to the opinion of the conveyancing counsel, the point is disposed of by the Judge in court or chambers, according to the nature of the case.

It may be convenient to set forth here the following Order of the 24th December, 1852, concerning the costs of references to conveyancing counsel, which, under the 43d section of 15 & 16 Vict. c. 80, are regulated by the Taxing Master, subject to an appeal to the Judge, to whose Court the cause is attached, whose decision is to be final. When, in pursuance of any direction by the Court or Judge, drafts are settled by any of the conveyancing counsel under 15 & 16 Vict. c. 80, s. 41, the expense of procuring such drafts to be previously or subsequently settled by other counsel is not to be allowed on taxation as between party and party, or as between solicitor and client, unless the Court shall specially direct such allowance. This intimation, however, is not to prevent the allowance of the expenses in cases which may have already occurred, when in the judgment of the Taxing Master there has been a reasonable ground for laying the papers before other counsel.

The party conducting the sale will, under the foregoing Orders, proceed to lay the abstract of the title in the lands to be sold before one of the conveyancing counsel of the Court, unless, under special circumstances, such a reference be dispensed with. The particulars and conditions of sale are prepared in the usual manner for the sale of estates, and are not necessarily referred to counsel. The particulars and conditions of sale usually constitute one document, and are intituled in the cause. They are settled and allowed by the Judge's clerk in chambers. If reserved biddings are intended, the fact should be mentioned in the conditions. By General Orders of July, 1851, a power was conferred upon the Masters, which may now be exercised by the Judge in chambers, to fix reserved biddings, the amounts to be paid by way of deposit, to appoint a time for payment of deposits into Court, and to receive proposals for sale of the property by private contract either before or after putting it up to sell by public auction.1

1 See Pym v. Insall, 10 Hare, App. lxxiv.

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