As agreements for sale of estates are generally entered into by the attornies of the parties, it may, in this place, be proper to observe, that where an attorney enters into an agreement on behalf of his principal, the agreement should be made and signed in the name of the principal, by him as attorney: for if an attorney covenant in his own name for himself, his heirs, &c. he will himself be personally bound, though he be described in the instrument as covenanting for and on the part of his principal(m) (19).

Where an estate is sold in lots, whether by public auction or private contract, it may be advisable for the vendor to take attested copies of the parcels included in the different conveyances; in order to satisfy a cautious purchaser of any part of the estate, that no part of the estate bought by him is included in any of the conveyances to the other purchasers.

It may here be observed, that if a man agree to get another so much for his estate, and actually provide a purchaser with whom the owner agrees for the sale of the property, at the sum stipulated, and a deposit is paid, the first agreement will be performed, although the purchaser (*) cannot perform the agreement, if the seller let him off, and retain the deposit as a forfeiture.(n)

If an agent for sale of an estate is to be paid a per

(m) Appleton v. Binks, 5 East, 148; Kendray v. Hodson, 5 Esp. Ca. 228; Norton v. Herron, 1 Ry. & Mood. 229; S. C. 1 Carr. & P. 648; Spittle v. Lavender, 1 Moore, 270; Grey v. Gutteridge, 1 Man. & Ry. 614. See Duke of Norfolk v. Worthy, 1 Camp. N. P. 337; Brown v. Morris, 2 Taunt. 375.

(n) Horford v. Wilson, 1 Taunt. 12.

(19) See Duval v. Craig et al. 2 Wheat. 45, 56. Tippels v. Walker, 4 Mass. Rep. 595. Thatcher v. Dinsmore, 5 Mass. Rep. 299. Forster v. Fuller, 6 Mass. Rep. 58. Sumner v. Williams, 8 Mass. Rep. 162. Thayer v. Wendall, 1 Gallis. 37. White v. Skinner, 13 Johns. Rep. 307.

centage on the sum obtained, he cannot recover his commission until the money is received by the principal. If therefore it is paid into the bank under an act of Parliament, by the authority of which the property was purchased, the commission is not recoverable until at least the seller's right to the money is ascertained, and it is owing to his wilful default that he has not received it(o).

Where a man had bought an estate and paid a deposit, but the title had not been made out, and being desirous of compromising with his creditors, applied to the seller to cancel the contract and return the deposit, which he refused to do, but said that he would never sue the purchaser on the contract, and thereupon the compromise with the creditors proceeded; it was held that it would have been a fraud in the seller if he had attempted to enforce the contract, and therefore the purchaser was not allowed to recover the deposit, although the title had not been made out(p)(20).

V. By a late act(q), the following duties are imposed upon every valuation or appraisement of any estate, or effects, real or personal, or of any interest therein, or of the annual value thereof; viz. where the amount does not exceed 501., a duty of 2s. 6d. ; where it exceeds 50l. but does not exceed 1007., a duty of 5s.; where it exceeds 100l. and does not exceed 2007., a duty of 10s. ; where it exceeds 2001. and does not exceed 5001., a duty of 15s.; and where it exceeds 500l., a duty of 20s.

(0) Bull v. Price, 7 Bing. 237; 5 Moo. & P. 2.

(p) Clark v. Upton, 3 Mann. & Ryl. 89.

(q) 55 Geo. III. c. 148. See Lees v. Burrows, 12 East, 1.

(20) See Treatise on Principal and Agent, (1836) tit. Auctioneers, where all the American cases are abridged.

(*)CHAPTER II.

OF SALES UNDER THE AUTHORITY OF THE COURTS
OF EQUITY.

SECTION I.

Of the Proceedings from the Advertisements to the
Conveyance.

We have already seen, that sales under the decrees of the Court of Chancery, or Exchequer, are not liable to the auction duty; and therefore if public notice of a vendor's intention to bid for the estate is not necessary, where a single bidder is employed to prevent the estate from being sold at an under-value(z), it follows, that no notice need be given previously to the sale of an estate under a decree, of the vendor's intention to buy in the estate, if a particular price be not bid for it. At the same time, it must be observed, that where a fraud is committed on the purchaser, by puffing at the sale, it cannot be supported, any more than a sale by auction under similar circumstances(a); but the Court will, in a proper case, authorize a bidding to be reserved, and to be made one of the conditions of sale(b).

Where an estate is directed to be sold before a Master, the particulars of sale are prepared by the plaintiff's solicitor after they are allowed by the Master, the advertisement for sale must be prepared, either by the plaintiff's solicitor, or by the Master's clerk, and the signature of

(z) Vide Supra, p. 13.

(a) Vide supra, p. 24.

(b) Jervoise v. Clark, 1 Jac. & Walk. 389.

(*)the Master must be obtained to authorize the insertion of the advertisements in the Gazette. There are always two advertisements(c); in the first, no time is appointed for the sale. About three weeks or a month after the insertion of the first advertisement, a warrant must be taken out to fix a time for the sale, and it must be served on all the parties' clerks in court. The warrant being attended, the Master, with the approbation of all parties, will fix the time; and the second advertisement, which is usually called the peremptory advertisement, stating the time, must then be prepared, and inserted in the Gazette(d). The estate may be sold either before the Master; or, if from the situation and nature of the estate, the sale ought not to take place in town, it may be sold in the country before the Master's clerk, or any other person authorized by the Master(e).

The plaintiff's solicitor should attend at the sale, which is conducted in the following manner: The Master's clerk prepares a particular of the lots to be sold, with spaces between each lot. The lots are successively put up at a price offered by any person present, and every bidder must sign his name and the sum he offers, in the space on the particular, under the lot for which he bids; and formerly 2s. 6d. was paid to the Master's clerk for every bidding; but that regulation, which had a tendency to damp the sale, has lately been very properly abolished, and in lieu of the half-crowns, a sum is allowed to the clerk, as part of the expenses attending the sale. (1) The best bidder is of course declared the purchaser. If any

(c) 2 Fowl. Prac. 305.

(d) See 1 Turner's Practice by Ven. 127.

(e) See 2 Fowl. Prac. 305.

(I) This will of course be now corrected under the authority of the late act 3 & 4 W. 4, c. 94.

(*)lots are not sold, they must be again advertised for sale(f).

The payment of a deposit, and the investment of it in the funds, are governed by the same rules as are adhered to where the contract is between party and party(g).

The Court will, on motion, discharge the purchaser, and substitute any other derson in his stead; but this will not be done unless such person pay in the money, and an affidavit be made that there is no under-bargain; for the new purchaser may give the other a sum of money to stand in his place, and so deceive the Court(h). Formerly the practice seems to have been to require the consent of all the parties in the cause, as well as the consent of the original purchaser(i).

If the purchaser resell at a profit behind the back of the Court, before his purchase is confirmed, the second purchaser is considered a substituted purchaser, and must pay the additional price into Court for the benefit of the estate(j).

Although more of an estate is sold than is necessary for the purposes of the trust by virtue of which the decree was made, yet the purchaser can make no objection to it, the decree being a sufficient security to him, as it cannot appear but that it was right to sell the whole. If, however, the decree were, that the Master should sell Greenacre, and he sells Blackacre, an objection to the sale would be good (k); although it seems that it may be laid down as a general rule, that a purchaser shall not (*) lose the benefit of his purchase by any irregularity of

(f) See 1 Turn. Prac. 129; 2 Fowl. Prac. 306, 307.

(g) Vide supra, p. 50; Ambrose v. Ambrose, 1 Cox, 194.

(h) Rigby v. M'Namara, 6 Ves. jun. 515; Vale v. Davenport, 6 Ves. jun. 615.

(i) Matthews v. Stubbs, 2 Bro. C. C. 291.

(j) Nodder v. Ruffin, 1 Taunt. 341.

(k) Lutwych v. Winford, 2 Bro. C. C. 248.