for all lots under 51. value; 2s. 6d. for all lots under 107. value; 5s. for all lots under 207. value; and so on, in proportion to the value of such lot or lots: (Bateman, 127, in notis.)

VI. PRACTICE AS TO THE PREPARATION OF THE PARTICULARS AND CONDITIONS WHERE A SALE IS MADE under a DECREE OR ORDER OF A COURT OF EQUITY.

Proceedings prior to the preparation of the conditions.]— In sales under a decree or order of a Court of Equity, the practice now is, previously to putting up the property for sale, to place the abstract of title before some conveyancing counsel, to be approved of by the court, for his opinion thereon, the better to enable the court to give the necessary directions respecting the conditions, and other matters connected with the sale; 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: (15 & 16 Vict. c. 86, s. 56.)

Proceedings to get abstracts referred to counsel.]—To get the abstracts so referred to counsel, the judge's clerk will deliver to the solicitor having the conduct of the sale a memorandum or note, which is taken to the registrar's clerk, and the matter is thereupon referred to counsel: (Ayck. Pract. 430.)

As to framing particulars and conditions of sale.]—The particulars and conditions should be penned with the same care and accuracy as ordinary sales by auction. The particulars should be intituled in the cause, and contain a general description of the property, in whose possession it is, or has lately been, and the lots in which it is to be sold. It must also be set forth that the sale is made in pursuance of a decree or order of the Court of Chancery; and these particulars should be annexed to the conditions of sale. If reserved biddings are fixed, they must be made one of the conditions of sale: (1b.)

Particulars and conditions usually prepared by plaintiff's solicitor.]-The particulars and conditions are usually prepared by the plaintiff's solicitor, but, if of a very special nature, they ought to be prepared by the same counsel to whom the abstract has been submitted, and upon whose opinion they are to be framed.

How particulars and conditions are settled, allowed, and distributed.]-When the particulars and conditions are prepared, they are afterwards settled and allowed by the judge's clerk, and a fair copy made and forwarded by the printer to the plaintiff's solicitor, who should examine it carefully with the proof sheets; and a sufficient number of copies should be printed off for the purposes of the sale, and distributed in the same way as in sales in ordinary cases: (lb. 431.)

VII. AS TO THE AGREEMENT WHERE THE SALE IS MADE BY PRIVATE CONTRACT.

Same care necessary in preparing agreement or conditions of sale.]-The same care and accuracy is necessary in preparing the terms of the agreement, where the sale is to take place by private contract, as in framing the conditions where the property is to be sold by public auction.

The heading.]—It should commence with the date, name, and description of the parties, by which the one binds himself and his representatives to the other party and his representatives for the due performance of the contract: (see the form of heading of a contract, 1 Con. Prec., Part I., No. III., p. 12, 2nd edit.)

Where the agreement is entered into by an agent.]-If the agreement is entered into by the vendor's agent, it should be stated that he acts in that capacity; as

"By A. B., of &c., his attorney [or agent] lawfully appointed in that behalf."

And if the agreement is to be entered into by the agent for the purchaser, he should be described as

"By C. D., of &c., his attorney [or agent] lawfully constituted for that purpose.

Practical suggestions as to how a contract should be penned.] The contract should state the agreement on the part of the vendor to sell the property to the purchaser, in which clause it is also usual to insert a description of the property, which must be accurately done, as a wilful misdescription in this respect will be equally fatal in a contract as when contained in the conditions of sale. If the property is to be sold subject to any leases, or other existing charges or incumbrances, they should be correctly set out: (see forms of this kind, 1 Čon. Prec., pp. 14 to 16 inclusive, 2nd edit.) The [P. C.]

G

undertaking on the part of the vendor to deliver an abstract, and deduce a good title, is also generally included in this clause; as also that the vendor will convey on approval of the title: (see the form, 1 Con. Prec., Part I., No. III., clause 1, p. 12, 2nd edit.)

As to the agreement on the part of the purchaser.]—The contract should then contain the agreement on the part of the purchaser to pay the purchase money on the execution of the conveyance (Id. ib. clause 2, p. 14), and if a deposit has been paid by the purchaser, it should be here mentioned, as also the amount of such deposit.

Usual stipulations as to title.]—The vendor and purchaser should then enter into a mutual agreement with each other for the due observance of their respective parts of the contract (see the form, Id. ib. clause 3, p. 15), the terms of which are usually similar to those contained in conditions of sale (that is to say); by whom the expenses of disentailing deeds, acknowledgments of married women, the incidental expenses attending the production of title deeds, getting in of outstanding legal estates, obtaining probate or letters of administration, all of which would otherwise fall upon a vendor, are to be defrayed; but it is usual to, agree that they shall all be paid for by him: (Id, ib.)

When recitals in ancient documents are to be conclusive.] -It is then usual to stipulate that recitals contained in ancient documents or court rolls shall be conclusive evidence of the recited facts; and that all doubts respecting seisin, or identity, or boundaries of property, not appearing on the deeds, shall be removed by a declaration in pursuance of the act for the substitution of declarations for oaths: (Id. ib. clause 4, p. 16.)

As to the preparation of purchase deed.]-It then ought to say by whom the purchase deed is to be prepared, although it commonly follows the general practice, by directing that it shall be done by the purchaser's solicitor, and be settled and approved of on the part of the vendor and purchaser by their respective solicitors.

Clause for rescinding contract.]-Then comes the clause for rescinding the contract. This may be penned in two ways it either gives the purchaser power to rescind the contract in case the vendor shall fail to produce a good

title within the time specified in the contract (see the form, 1 Con. Prec., Part I., No. III., clause 6, p. 17, 2nd edit.); or it authorizes the vendor to do so upon the purchaser's failing to perform his part of the agreement (see the form, 1 Con. Prec., Part I., No. I., clause 9, p. 7, 2nd edit.); or the vendor may be empowered to vacate the sale in case the purchaser shall object to the title, or require any evidence respecting it the vendor may be unable or unwilling to supply: (see the form, 1 Con. Prec., Part I., p. 4, 2nd edit., in notis.)

Time may be made part of the essence of the contract.]-It may also be stipulated that time may be made part of the essence of the contract at the option of either vendor or purchaser, which it has been decided may now be made binding in equity as well as at law: (Keen v. Stuckley, Gilb. Eq. Cas. 155: Lloyd v. Collett, 4 Bro. C. C. 469; Levy v. Lindo, 3 Mer. 81; Whitby v. Cottle, 1 Turn. 79; Hudson v. Bertram, 3 Mad. 440; Reynolds v. Nelson, 6 ib. 18; Boehm V. Wood, 1 Jac. & Walk. 419.)

Propriety of inserting a clause for rescinding contract in case vendor is unable to make a title to some portion of the property.]-Sometimes a clause is inserted authorizing a purchaser to rescind the sale in case the vendor shall fail to make a good title to the whole of the premises. This stipulation is sometimes a very important one for a purchaser whose principal object in entering into the contract may possibly be to obtain that very portion of the property to which the vendor is unable to make a title. It is true a vendor would not, generally speaking, as we have already remarked, be allowed to compel the purchaser to complete the sale, even with any amount of compensation he might offer him, where the former is unable to make a title to a lot complicated with the rest, and essential to their enjoyment; still, it will be the more prudent course for the purchaser's solicitor to insist upon the insertion of a clause of this kind in the contract, where he has the slightest ground for supposing that such a question may be likely to arise.

Stipulation that if vendor is unable to make a title to the whole property, purchaser is to be at liberty to rescind the contract.]-The following clause will be found well adapted for enabling a purchaser to vacate the contract in case the vendor is unable to make a title to the whole property:

"But it is nevertheless agreed, that if the said (vendor) shall fail to make a good title, at the time herein before appointed, to the whole of

the premises hereby contracted for, or the same shall contain a lesser quantity than (a certain specified number) acres statute measure [or where the subject matter of sale is a manor, in case the said manor shall prove to be a manor by reputation only], or in case the said pre. mises, or any portion of them, shall not prove to be of freehold tenure, then, for all, any, or either of the causes aforesaid, the said (purchaser) shall be at full liberty to rescind the contract, which from thenceforth shall be null and void to all intents and purposes whatsoever."

As to special stipulations.]-The above are the ordinary clauses used in an agreement for the sale of real property; but it often happens that even more special clauses are required in an agreement upon a sale by private contract than in the conditions upon a sale by auction, arising from some particular circumstances connected with the title, which, as we have before remarked, render it ineligible to offer the property for sale by public auction, but afford no objection whatever to the treaty for a purchase by private contract.

Clauses in conditions of sale equally applicable to agreements.]-Almost all, if not every one, of the clauses we have already noticed with respect to conditions of sale, will, under corresponding circumstances, be equally applicable to agreements to sell by private contract, and may be adapted for the like purpose, by merely substituting the names of the parties in the agreement for that of their respective characters of "vendor" and "purchaser," in which they are described in the conditions, although there is no objection whatever to their being described in the characters they fill instead of their own proper names in an agreement, as well as in conditions of sale. But in addition to the several stipulations we have already mentioned (ante, p. 19), there are others which are often inserted in agreements, which are not so well adapted to, and are consequently rarely if ever introduced into, conditions of sale. Amongst these may be enumerated arrangements as to the time and mode of the payment of the purchase money; as, for example, that the whole or some part of the consideration shall be an annuity, or that some portion of the purchase money shall remain secured upon a mortgage of the premises, or that it shall be paid by instalments, or by bills of exchange, or promissory notes, or be secured by bond; and in other instances no particular time is appointed for payment, but it is agreed that, until such payment is made, a purchaser shall pay interest on it, for which the vendor is to have a lien on the purchased property, the purchaser in the meantime to be let into the possession and receipt of the rents and profits of the estate.