person appointed to receive the deposit prefers to give security by paying a sum of money into court, the solicitor takes out a summons for leave to make the payment, an order is drawn up by the registrar, and the money is paid into court in the ordinary way. If desired, directions for the investment of the money will be embodied in the order (g).

sometimes

The expense connected with the giving of security is so Security considerable that security is not often required on sales of not resmall properties, or where the parties are all sui juris and quired. agree to waive it (h); and, to save the expense of enrolling and vacating the enrolment (i) of a recognizance, it is the practice at some of the chambers to defer sending the recognizance to the Enrolment Office till the time fixed for the payment of the deposit into court has expired, when, if such payment be duly made, the enrolment becomes, of course, unnecessary (j).

cation from

tioneer.

Some time before the sale, a print of the particulars and Communiconditions, signed by the chief clerk, a note, signed by him, Chief Clerk of the reserved bidding, if any, under a sealed cover, forms to aucof a bidding paper, and of an affidavit of the result of the sale, and also printed directions, as to keeping the reserved bidding secret, as to the mode of conducting the sale, and as to returning the particulars, conditions and affidavit of the result, are forwarded to the auctioneer by the chief clerk, either directly or through the solicitor (k).

By these directions the auctioneer is instructed not to Secrecy as

(g) Dan. Ch. Pr. 1159.

(h) Seton, 1397.

(i) See infra, p. 247.

(j) Dan. Ch. Pr. 1159, note (i).

(k) Ib. 1160. For forms of directions to the auctioneer as to the conduct of the sale, and of bidding paper and affidavit of the result, see Dan. Forms, Nos. 1120 et seq.; and post, pp. 367-370.

to reserved bidding.

Proceed

ings at the

sale.

open the note of the reserved bidding until the time of sale, and not to divulge the reserved bidding to any one, either at or at any time after the sale. Where, however, after an ineffectual attempt to sell the property by auction, the reserved bidding was divulged by the auctioneer's clerk, contrary to the express instructions given to his master, Lord Romilly, M.R., held a purchaser at the reserved price to his bargain and, in giving judgment, said: "It is very usual that the reserved bidding is known, and it is the constant practice for persons to take it (the property) at the reserved bidding (1)."

The sale, at which the solicitor should be present (m), must be conducted in strict accordance with the chief clerk's directions (n). The auctioneer must be careful to make the proper entries in the bidding paper himself, and to see that it is duly signed by the purchaser (o). It has been said, indeed, that the Statute of Frauds does not extend to sales by the Court (p); but in practice the purchaser is always required to sign the bidding paper. Where there is a reserved bidding, if no one bids so much as the reserve, the auctioneer must declare that the property is not sold, but has been bought in on account of the persons interested in or entitled to the property (q). The Court does not bind

(1) Else v. Barnard, 28 Beav. 228; cf. Bousfield v. Hodges, 33 Beav. 90; Doule v. Lucy, 4 Hare, 311. The chief clerk may use his discretion as to communicating the reserved bidding to the parties, or any of them, or their solicitors; Ord. 16 July, 1851, r. 2; Cons. Ord. XXXV. r. 61. Cf. ante, p. 141.

(m) Dan. Ch. Pr. 1161.

(n) A sale in a manner different from that directed by the judgment of the Court, unperfected by conveyance, will be treated as a nullity; Annesley v. Ashurst, 3 P. Wms. 282; Ex parte Hughes, 6 Ves. 617; Bowen v. Evans, 1 J. & L. 178, 266; Dart, 1196.

(0) See form of bidding paper, post, p. 368.

(p) Att.-Gen. v. Day, 1 Ves. 218; Lord v. Lord, 1 Sim. 503.
(2) Ord. 16 July, 1851, r. 2.

itself by a condition to accept the highest bidding (r); but, in the absence of special circumstances, the best bidder is, of course, declared the purchaser (8). In a case where the offer of the highest bidder was rejected, in the belief that he was of insufficient means, and the next bidder was declared the purchaser, the Court did not treat the sale as void, but seems to have considered that the highest bidder should have moved that he, instead of the other, might be declared the purchaser (t).

Although, by the 8th section of the Sale of Land by Puffers. Auction Act, 1867 (u), nothing in that act contained is to affect "any sale of land made under or by virtue of any order of the High Court of Chancery," it can hardly be doubted that the employment of a puffer (v) would not now be permitted upon a sale by the Court any more than upon any other sale. It was said in a modern case (w) that "the Court ought not to be less strict as to sales under its own order than as to sales out of Court"; and in a more recent case (x) the 5th section of the act (y) was directly applied to a sale by the Court, and, the conditions stating that the sale was subject to a reserved bidding, that was held to preclude the vendor from employing a person to bid up to the reserve, he not having expressly stipulated for the right to do so. It had long before been decided that if a person without authority interfered and bid at the sale, though only to prevent a sale at an undervalue, the Court would

(r) In re Costello's, 2 J. & L. 244.

(8) 1 Dav. 595.

(t) Hughes v. Lipscombe, 6 Hare, 142; Dart, 1199.

(u) See the various provisions of the act set out ante, pp. 136, 137.

(v) For a definition of "puffer," see ante, p. 131.

(w) Dimmock v. Hallett (1866); see ante, p. 140.

(x) Gilliat v. Gilliat (1869); see ante, p. 138. (y) See ante, p. 136.

Bidding
by incom-
petent per-
son (c).

Affidavit of the result

of the sale.

hold him to his purchase (2). It may be observed also that by the rules of the Court the reserved bidding, where there is one, must be made one of the conditions of sale under which the property is sold (a); and that, in his affidavit of the result, the auctioneer has to depose to having conducted the sale in a fair, open and candid manner (b).

In a case where it was discovered that the person who had been declared the highest bidder was insane at the time of bidding the Court refused to let the next bidder stand as purchaser, although all the parties consented; but ordered a resale (d). It has been suggested that the Court might have treated the second best bid as an offer to purchase by private contract (e).

The ordinary conditions of sale fix a time at which the chief clerk will certify the result of the sale. To enable the chief clerk to do this, the auctioneer has, after the sale, to make an affidavit of the result (ƒ); and of this affidavit an office copy, with, as exhibits, the bidding paper and particulars and conditions forwarded to the auctioneer by the chief clerk, must be left at chambers at least a clear day before the day appointed for the result to be certified (g). The Chief A certificate of the result is, upon the day appointed, settled Clerk's cer- and signed by the chief clerk, and, at the expiration of four clear days, adopted and signed by the judge, and filed, unless an application to discharge or vary it is made in the interval (h).

tificate.

(2) Nelthorpe v. Pennyman, 14 Ves. 517; see 1 Dav. 597. The person who interfered in this case was the solicitor of one of the parties.

(a) Ord. 16 July, 1851, r. 2.

(b) See form, post, p. 369.

(c) Cf. ante, pp. 122 et seq.

(d) Blackbeard v. Lindigren, 1 Cox, 205.

(e) Dart, 1199, note (z).

(f) See form, post, p. 371.

(g) Reg. 8 Aug. 1857, r. 15; Dan. Ch. Pr. 1161, 1162.

(h) Cons. Ord. XXXV. rr. 48, 49; Morgan, 153.

The affidavit of the result of the sale is equally necessary, when the attempt to sell has failed (i).

of deposit.

Where a deposit has been received at the sale, the cer- Payment tificate appoints a day for payment of it into court; and if into court it is not paid in by that day, a summons may be taken out and served on the recipient that he may be ordered to pay it into court within a limited time and to pay the costs of the application, and the order may then be drawn up, endorsed, served and enforced like other orders directing a payment to be made; or, by consent, instead of a separate order, a direction for such payment may be added to the purchaser's order for the payment into court of the balance of his purchase-money (j). In practice the auctioneer hands over the deposit to the solicitor, for the latter to pay it into court (k).

account for

As soon as he has paid the deposit into court, or, where Release of no deposit has been paid at the sale, immediately after the security to day appointed for the result to be certified, the auctioneer or deposit. other person who has given security to account for the deposit may apply by summons to have his recognizance vacated, or the sum which he paid into court as security paid out to him again (7). This application must be supported by the production of an office copy of the chief clerk's certificate of the result of the sale, and office copies of the recognizance and the Accountant General's certificate of the payment into court of the deposit, if any (m). The enrolment of the recognizance will be vacated by the Clerk of Enrolments on production of the order (n).

(i) Dan. Ch. Pr. 1162.

(j) Seton, 1187; Dan. Ch. Pr. 1162.

(k) See ante, p. 178, note (i).

(1) The affidavit of the result of the sale sets forth the particulars of any deposits received by the person appointed to sell.

(m) Dan. Ch. Pr. 1162-3.

(n) Ib. 1163.