When the abstract has been investigated1 and the particulars and conditions of sale drawn up and settled, the sale must be duly advertised, and with that view the party conducting the sale must prepare an advertisement, and obtain the approval and signature of the chief clerk to it. When the form of advertisement is settled, it must be inserted in such newspapers as the Judge in chambers or his chief clerk may direct, usually the London Gazette, or one or more provincial papers.

We have already seen that the Judge in chambers or his clerk has power, if it be deemed advisable, to fix a reserved bidding or reserved biddings. If this course be deemed advisable, evidence by affidavit will be required to prove the amount that ought to be paid as the reserved bidding upon each lot, to which this mode of sale is intended to apply.

We have also seen that the Judge or his clerk may order the sale to take place where or by whom he thinks fit.2 It is not usual to pay the auctioneer a percentage, but the terms between him and the party conducting the sale are arranged previously with the approbation of the Judge's clerk.

When the sale takes place, the auctioneer prepares what is called a bidding paper for the signature of the purchasers. A printed paper of instructions as to the conduct of the sale is usually given to him from the chief clerk.

The best bidder being declared the purchaser, must, in addition to the signature of his name after his bidding, add his description and place of abode. If he buys as agent, he signs A. B., agent for C. D., of

&c.3

1 The following is the form of order used for referring an abstract to conveyancing counsel: -"The Vice-Chancellor

has directed that an abstract of 18, in this cause directed to be

sold, and which are comprised in the particulars to which I have put my initials, be laid before the conveyancing counsel in rotation for his opinion thereon with a view to such sale, and to advise what, if any, special conditions of sale are rendered necessary or proper by the state of the title, and that such special conditions (if any) be settled by such counsel.

Dated this

day of

18-.

Order 16th July, 1851, ante, p. 1366.

Chief Clerk.”

The following form is that in which the bidding paper is drawn up :

In Chancery.

against

This bidding paper marked B. was produced and shown to

The same process is gone through with respect to all the other lots; and if any lots are not sold, they must be again advertised for sale. If reserved biddings have been fixed, and the sum bid does not amount to the sum named, the lot is of course not sold. After the sale an affidavit is prepared by the solicitor for the party conducting the sale, which generally states that the deponent proceeded to sell the estate, according to the printed particulars and conditions of sale thereof settled and allowed, and specifies where and when the sale took place; and that he has annexed a schedule, containing a full and true account of all and every sum and sums of money which was or were bid for the said lots respectively, and also the names of all and every the persons and person who attended at the said sale, and bid for the lots respectively (this schedule is, generally, the original paper upon which the biddings taken at the sale were put down, and signed by the bidders); and he further swears that the respective sums lastly set down as being the highest bidding for the said lots, were the highest and largest sums that were offered and bid for the same respectively at the said sale, and verifies the handwriting of the highest bidder to each lot, and that the whole of the sale was conducted by him, the deponent, in a fair, open and candid manner.

It is not usual, in sales of estates under the decrees of the Court, to require the purchaser to make any deposit. It is, however, sometimes done: and it seems that, in cases where timber upon an estate is sold separately from the estate itself, the practice is to require a deposit; the conditions of a sale usually providing, that

same as is referred to in his affidavit sworn this

day of

one thousand

eight hundred and - before me, We whose names are hereunder subscribed respectively bid at the sale by anc tion in the above cause, on the day of, one thousand eight hundred and the sums set opposite to our respective names for and became the purchasers of the respective lots specified in the particulars produced at such sale, the numbers of which are set opposite to our respective names, subject to the conditions also produced at such sale.

Number of
Lot.

Amount of
Highest Bidding.

Signatures of the Purchasers
of the Lots sold.

Purchasers' Address and Quality.

1

the purchaser of each lot shall sign an agreement for the performance of the conditions, and pay one third of the amount of the purchase-money, (or a certain percentage upon its amount,) in cash or Bank of England notes, at the time of the sale, to the person appointed to sell.

The Judge or his clerk is, however, expressly authorized to fix an amount to be paid as deposit by the purchasers, and to appoint a person to receive the same, who may be required to give security.1

In ordinary sales by auction, or by private agreement, the contract is complete when the agreement is signed; but a different rule prevails in sales before a Judge in chambers; in such cases, the purchaser was not formerly considered as entitled to the benefit of his contract till the Master's report of the purchaser's bidding is absolutely confirmed, and is not now, until eight days after the certificate of the purchase has been signed by the Judge in chambers.2

The following is the form of certificate made by the chief clerk, after which the contract will be deemed complete :

"The of the testator intestate, in the said named, directed to be sold, have been offered for sale in

lots, by public auction, with the approbation of the said Judge, subject to a reserved bidding for each lot fixed by the said Judge, and according to certain particulars and conditions of sale, and the several persons named in the first column of the first schedule hereto were the highest bidders for, and they are allowed by the said Judge to be the purchasers of, the respective lots set opposite to their respective names in the second column of the said first schedule, at the prices or sums set opposite to their respective names in the third column of the said first schedule."3

1 Orders 16th July, 1851, and 16th October, 1852.

2 Bridger v. Penfold, 1 K. & J. 28.

* The other and subsequent proceedings in regard to the sale of estates under the superintendence of a Judge and his clerk at chambers, according to the present English practice, are almost identical with those formerly pursued in sales of property in the Master's office; to these the reader is referred ante, 1264.

SECTION III.

Of the Production of Documents.

It has always been the practice of the Court of Chancery, before the hearing of a cause, to allow a plaintiff to move for the production of documents relevant to the matters in question, which have been admitted by the defendant's answer to be in his possession or power. This power to order the production of documents arose out of that general jurisdiction for the purpose of discovery which has in proceedings in Equity constituted a peculiar and important feature; and, in some instances, formed the very foundation for the interference of the Court. The manner of exercising this jurisdiction has been very much simplified by the recent changes in the practice of the Court, but the principles by which it is regulated still remain the same.1

Formerly, an order on behalf of a plaintiff to compel a defendant to produce documents could only be obtained by a motion in Court, and it was incumbent upon the plaintiff in the first place to show an admission by the defendant of the possession of the particular document sought to be produced.2 The 18th section of 15 & 16 Vict. c. 86, now enacts, that "It shall be lawful for the Court, upon the application of the plaintiff in any suit in the said Court, whether commenced by bill or by claim, and as to a suit commenced by bill, whether the defendant may or may not have been required to answer the bill, or may or may not have been interrogated as to the possession of documents, to make an order for the production by any defendant, upon oath, of such of the

1 Previous to the final hearing of a cause, the Court orders the production of books and papers, only upon two principles; security pending the litigation, and discovery or inspection, for the purposes of the suit in Court. Watts v. Lawrence, 3 Paige, 159.

2 In a bill for discovery and production of deeds, it is absolutely necessary to charge that the deeds have come to, or are in the hands of, the defendant. Hough v. Martin, 2 Dev. & Bat. Eq. 226. When the plaintiff alleges that he has never seen the original deed against which he seeks relief, and prays that the same may be produced for his inspection, the defendant is not bound to make the deed part of his answer, or annex it to it. The plaintiff must, in such case, obtain an order from the Court for the production of the deed; which order, if de obeyed, will put the defendant in contempt, and by consequence prevent him from making any motion in the cause. Smith v. Thomas, 2 Dev. & Bat. Eq. 126.

documents in his possession or power relating to matters in question in the suit, as the Court shall think right; and the Court may deal with such documents when produced in such manner as shall appear just."

It will be observed, that the documents to be produced are such as the Court shall think right, and there is no doubt that the Judge in chambers, who now exercises this discretion, will act in accordance with the previously decided cases.

It will be convenient, first, to set forth the manner in which the jurisdiction is carried into effect. In the first place, the 15 & 16 Vict. c. 80, s. 26, expressly includes applications for production of documents among the business to be transacted in chambers.

The plaintiff therefore commences by taking out a summons, and serving it on the defendant.

The following is the form of summons:

In Chancery.

Let all parties concerned attend at my chambers,

Middlesex, on

of the clock in the

the day of, 18-, at
noon, on the hearing of an ap-

plication on the part of, for production by the

upon oath of documents relating to the matters in question in this cause.

To

Dated this

day of —, 18—.

This summons was taken out by

of

SO

licitor for

Upon the hearing of the summons, if the defendant has answered, the question for the Judge will be the same as it was formerly on a motion in Court, and it appears that different forms of objection may be taken to the order. First, that the plaintiff is seeking discovery not relevant to his case, that is to say, that he is requiring something beyond that to which the rules of the Court entitle him.

Secondly, it may be objected that even supposing the documents to be relevant to the plaintiff's case, and such as he might have an interest in inspecting, still that the defendant is exempted from their production by some particular circumstances arising out of the nature of the documents themselves.

Thirdly, there may not be a sufficient admission of the possession of the documents by the defendant, or there may not be a