be borne by the purchaser. (76 N. O.) The object of this order was to prevent the purchaser maintaining an untenable position by the threat of throwing upon the other party the expense of a reference, in case of opposition.

If, at the expiration of the eight days after service of the warrant on leaving the draft conveyance, no written [*213 ] *dissent has been left in the Master's office, or if one has been left, and the purchaser does not intend to submit to the proposed alterations, in either case he takes out and serves a warrant to settle the draft conveyance. The warrant is attended by the solicitors, or the counsel of the parties, and the matter is proceeded with on that and subsequent warrants till the draft is settled. The Master then prepares his report approving the conveyance, which is settled by warrant, and transcribed, signed, and filed in the usual way. This report does not require to be confirmed. If the parties are dissatisfied with the Master's decision, they may bring the question before the Court in the form of exceptions to his report. If any thing is directed to be done by the accountant-general upon the execution of the conveyance, an affidavit of such execution is made. On this affidavit the Master issues his certificate, which is filed in the usual manner.

HOW A PURCHASER OBTAINS POSSESSION.

If a purchaser, after having obtained an order to pay in his purchase-money and to be let into possession, experiences any difficulty in obtaining possession of the premises, it is not the practice for the purchaser to proceed against the person in possession, but he should apply to the vendor's solicitor to procure possession for him; and, if he refuses, he should serve a notice of motion that the vendor may procure possession to be delivered to him within a given time, and that the costs of the application may be paid by him, or out of the estate. If willing to assist him, the vendor proceeds against the party withholding possession, by serving him with a notice of motion that he may [*214] deliver up possession within a given time; *upon affidavit of service of the order and of demand, it is a motion as of course for a writ of assistance, upon which the sheriff will put the party into possession. In Dove v.

Dove, 1 Bro. C. C. 375, it appears that an application was made by the purchaser for an order on a tenant in possession, (who was a party in the cause,) to deliver possession to the purchaser. A writ of execution of the order was served, then an attachment issued, then an injunction, and lastly a motion was made for a writ of assistance. This last order I have compared with the Reg. Lib. 1783, fo. 325, and it is made against the defendant, who withheld the possession at the instance of the purchaser.[a]

The course taken in this case is clearly irregular, and, if it had been brought to the attention of the Court, could not have been sustained. One palpable mistake was, issuing a writ of execution and an attachment at the instance of one not a party to the cause. The correct practice, as before stated, is for the plaintiff, or a party in the cause, to proceed against the person withholding the possession. Mr. Walker, the registrar, has furnished me with the case of Saunders v. Saunders, (7 July, 1824,) where the order for the injunction (see Writ of Assistance, 1 Vol. 447-449, and notes,) to deliver possession was made at the instance of the plaintiff; and, except so far as it is varied by the act of 1 W. 4, a similar course has been pursued in a recent case of Shallcross v. Hibberson, (1835.)

[a] On a sale under a decree, the delivery of possession to the purchaser, by injunc tion, is well settled, and of right, where the possessor does not claim to hold by title paramount to the parties. Dorsey v. Campbell, 1 Bland, 363; McComb v. Kankey, 1 Bland, 363; Stackpole v. Curtis, 2 Moll. 504, (12 Eng. Ch. Rep. 585.) But immediate possession will not be ordered, when it would be attended with a loss of the then growing crop. Chapline v. Chapline, 1 Bland, 364; Wright v. Wright, 1 Bland, 365; Taylor v. Colegate, 1 Bland, 365.

See also, on this subject, Vol. 1, p. 447, and 448, note [a].

CHAPTER XXI.

RESALE.

Under what circumstances, 215. And when without an order, 215. What steps necessary for, 215.

A RESALE of property may become necessary in various ways. 1st, If at the original sale the whole estate, or any of the lots remain unsold, the Master is at liberty at a future period, without further order, to resell the same.[a] 2d, If a person opens the biddings, a resale takes place, in pursuance of the order giving liberty to open the biddings.[b] 3d, If, within the time limited by the order opening biddings and directing a resale, the deposits are not paid, the Master is at liberty to resell pursuant to the terms contained in such order. And, lastly, if any of the purchasers do not pay in their purchase-money, the vendor's solicitor is at liberty to obtain an order that the lots purchased by them may be resold.[c]

It will be observed from the above statement that a resale may take place without a further order under the state of circumstances described in the first and third divisions, while in the remaining instances an order must be obtained to authorize the Master to resell. With this

[a] Where, by an order for the resale of mortgaged premises, the Master was directed to put up the premises at a particular sum, and resell the same, if that amount or a larger sum was bid therefor, and at the sale, the premises were struck off to a purchaser, for the sum specified, and thereupon, the Master, acting under the direction of the complainant's solicitor, and without any previous intimation to that effect, insisted upon the immediate payment of the bid in specie, although the purchaser offered to pay the same in good current bank bills, or in good drafts on specie-paying banks, or to pay the amount, in specie, as soon as it could be obtained from the banks where it could be found; and the Master immediately put up the property again, upon the terms that specie should be paid down, and no person purchasing on these terms, he reported that the terms, upon which the resale had been ordered, had not been complied with; it was held, that the conduct of the Master was improper and unjustifiable, and that the pur chaser was entitled to a deed of the premises, upon payment of the amount of his bid; and the report of the Master was set aside, and he was directed to execute to the purchaser, a deed, upon such resale. Baring v. Moore, 5 Paige, 48.

[b] See post, 235-250, and notes.

[c] If the purchase-money be not paid, the Court may order a re-sale, at the risk of the purchaser. Mullikin v. Mullikin, 1 Bland, 541. See also, ante, 176, note [a].

So, also, an order was directed against a purchaser, to show cause why there should not be a re-sale, at his risk, he having refused to give security for the purchase-money, agreeably to the terms of the sale. Haig v. Commissioners of Confiscated Estates, 1 Desau. 144.

exception, the proceedings introductory to, and consequent, on a resale, are regulated by the same rules in all the above instances. In each case a fresh copy of the particulars and conditions of sale are left in the Master's office adapted to the then existing state of things,-these *particulars and conditions are settled by war- [ *216 ] rants. The general and the peremptory advertisements are inserted, the particulars and conditions of sale are printed and distributed, and bills announcing the day of sale, posted up at the different inns; and, in short, all the proceedings consequent upon an original sale are repeated. So, in like manner, the proceedings after the resale to confirm the report, to pay in the purchase-money, to investigate the title, to settle the conveyance, or to compel the completion of the purchase, are identical, excepting that in the instance of the biddings being opened, if the purchaser at the resale does not pay in his deposit within the time limited, the Master is at liberty, without further order, to put up the lot to sale. Where the resale is directed by an order, it is advisable to direct the premises to be resold, either by public auction or by private contract, with the approbation of the Master.

If a resale is directed the purchaser is entitled to the rents from the quarter-day previous to the resale, and not from that preceding the original sale.

CHAPTER XXII.

SALE BY PRIVATE CONTRACT.

When allowed, 217. Order for, 217. Proceedings to carry same into effect, 218.

AFTER the decree or order has directed a sale, it is not competent to the parties to sell, except under the control of the Court. If, before the sale takes place, or if after the sale all or any of the lots remain unsold, and any person is desirous of purchasing by private contract, an order must be obtained. For this purpose a notice of motion is given and served on the clerks in court of all the parties in the cause who are interested, that the vendor 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, and which had not then been sold or disposed of by public auction, subject to such terms and conditions as the said Master thinks fit. If many lots remain unsold at the sale, the order is general, as above, and the vendor's solicitor should not on each contract apply to the Court to refer to the Master to inquire as to the expediency of that particular contract. The order is drawn up in the terms of the notice, and gives the Master liberty to approve of any such contract and contracts, and to settle the conveyances consequent thereon, in case the parties differ about the same.

[ *218 ] *The vendor's solicitor then enters into a written contract with any person willing to purchase, subject to the approbation of the Master. When this contract is duly executed by both parties, the vendor's solicitor leaves a state of facts stating that by the order the Master is to approve of the contract, and setting forth the terms of the contract, and submitting that the same should be performed. This state of facts is 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 for the estate, that the same should be carried into effect. If the Master is satisfied with this evidence,