it made the order. In the case of an infant, the purchaser has no reason to complain; but in this case the court declares nothing upon its records, as in the case of infancy. The non-compliance with the conditions of sale may in this case annul the contract1." The foundation of the doctrine in these cases being the possession of the purchaser taken under the contract, it is clear that the principle does not distinctly apply, where the circumstances under which possession is taken are such, that it cannot be distinctly referred to the contract; as where the vendor and purchaser are tenants in common, the subject of sale being the vendor's moiety of the estate, of which the vendee had been in possession previous to the agreement for purchase,-the court will not order in the purchase-money, except in a case of gross exclusion. In Freebody v. Perry2, which arose under these circumstances, the abstract had been delivered, and no objection taken to the title. The purchaser stated, by his answer, that he had ever since the date and signing of the agreement, as he had for a considerable time previous thereto, been in the possession of the said moiety, and received the rents and profits thereof, but had all along kept an account, as between himself and the vendor, of the rents and profits so received, and had at all times been, and then was, ready and willing to account with the vendor for such rents and profits. The Lord Chancellor, on appeal from the Vice-Chancellor, thought there was no foundation for the application, and refused the motion. So, where a tenant purchases of his landlord, it seems to require a case of considerable misconduct on his part to induce the court to interpose in this way. In a case, however, where the tenant, having articled for the purchase, approved the title, and caused a conveyance to be prepared, afterwards refused to complete, insisting on objections to the title by his answer, retaining possession all the time, and when applied to for rent claiming to be purchaser, and when called upon for his purchase-money, claiming to be tenant, he was ordered to pay in the purchase-money within six weeks 3. 7. Receiver granted, when.]-Where the purchaser is in partial possession, from which, however, he cannot be dislodged, and is in embarrassed circumstances, so that it is very doubtful whether he possess the means of paying the purchase-money into court, a receiver will be appointed, as the only available means of protecting the interests of all parties. Thus, in Hall V. Jenkinson1, the answer of the purchaser, admitting that he 12 Ves. & B. had partial possession of the premises, but denying that full 125. and complete possession was ever given to him, and alleging, among other things in support of this, that a shepherd of the vendor's still continued to reside on the premises, contrary to his wishes, and that he, during such residence, had cut fire-wood, and done other acts of ownership, as the vendor's agent; and the purchaser admitting, also, by his answer, that he was in embarrassed circumstances, that his goods had been taken in execution, and that, to extricate himself from difficulties, he had put up the estate for sale by auction in the preceding November, but no bidders appeared; on a motion, supported by an affidavit, that, since the plaintiff had filed his bill, he had discovered that the purchaser was insolvent, and that all his real and personal estate (including the estate in question) were to be assigned and conveyed to trustees for the benefit of his creditors; Lord Eldon, on the grounds, "that, if the contract could be carried into execution, the vendor had a lien on the estate for the remainder of the purchase-money; that, if it could not be executed, the purchaser had a lien to the extent of the money paid by him on account of his purchase; that the purchaser was insolvent; that, by attempting to sell and convey the estate, the title would be embarrassed; and, lastly, that the possession had never been a clear and exclusive possession of the purchaser, but a mixed possession of both;"-granted a receiver. So, where both parties are desirous of divesting themselves of the possession of the property, the court will sometimes grant a receiver; as, in Boehm v. Wood2, where the property consisted 2 J. & W. 236. of buildings and offices, on which it would be necessary to effect insurances, and of ornamental grounds which required considerable expenditure and attention,-Lord Eldon, on the motion of the vendor, alleging that all the objections to the title had been answered, but that some time must elapse before the cause could be heard, ordered that a receiver should be appointed, although the purchaser denied that the objections to the title had been answered; his Lordship, however, reserving the consideration of the question, at whose expense the receiver should be. And, lastly, when there is not a case strong enough to induce the court to order payment of the purchase-money, and where 1 Boehm v. Wood, Turn. 332. * 2 Russ. 604; and see Raynes v. Wise, 2 Mer. 472. $ 1 Mer. 52; and see Booth- the purchase is of such a nature that the appointment of a receiver would not be a sufficient protection to the plaintiff,-as if the property have, from accidental circumstances, become greatly depreciated, and the purchaser be likely to leave the country,the court will interpose by granting a writ of ne exeat regno, as the only effectual means of protecting the vendor, and vindicating its own jurisdiction1. 8. Ne exeat Regno granted, when.]-But the court will not grant a writ of ne exeat regno, unless it be quite clear that, at the hearing, it must decree a specific performance. Thus, in Morris v. M'Neil2, the purchaser had taken possession of the property, which was the subject of the contract, and had continued possession and received rents after the abstract was delivered: the purchaser, who had been for some time resident at Boulogne, had then recently come to England, and was about to return to France, when the plaintiff obtained a writ of ne exeat regno against him, marked for the amount of the purchasemoney. On the motion to discharge the writ, it was contended, in support of it, that the title had been accepted by the acts of the defendant; and even if this were not so, yet the court would not presume that a good title could not be made; and that, if the writ were discharged, the plaintiff would have no remedy, for it would be useless to incur the expense of proceedings which could never be made effectual; but Lord Eldon was of opinion that these considerations afforded no ground for the writ. "The facts of this case," said his Lordship, "and the transactions be tween the parties, do not go that length, which authorizes me to say, that I cannot have a rational doubt whether there shall or shall not be a specific performance of the contract; and, unless the court can make it out to be quite clear that there must be a specific performance, it cannot grant the writ of ne exeat regno. The writ must be discharged." 9. Immaterial whether Possession be admitted by the Answer.] -It is immaterial, for the purpose of an application to have the money paid into court, whether the possession be or be not admitted by the answer. It is sufficient if that fact be brought before the court by affidavit, or admitted at the bar. Thus, in Burroughs v. Oakley3, where the plaintiff's bill contained no allegation of the purchaser having taken possession, and the answer merely stated the agreement, but disputed the title, with out admitting possession, on the vendor's affidavit of possession taken, and of a correspondence between him and the purchaser's solicitor, explaining away the objections to the title, and repeatedly calling on the purchaser to take the conveyance which had been prepared, without obtaining any satisfactory answer; Lord Eldon said, "That although there was no case in which the court had acted on affidavit, yet its interference may be justified by the circumstances. In this case the contract seemed in terms to contemplate delay; yet that could only mean reasonable delay, and not such as could arise out of obstacles created by the purchaser himself; and, therefore, that this was a case in which the court would take the purchase-money into its own keeping." In Blackmore v. Stace1, the purchaser being in possession, and 6 Madd. 69. having obtained that possession without the consent or privity of the vendor, a motion was made before answer, that the purchaser be ordered to pay his money into court; it was objected, that such order could not be made before answer, unless the defendant thought fit to file affidavits, so as to bring the merits before the court, which in this case he had not done. Sir J. Leach, in giving judgment, said, "It is not argued on the part of the defendant that the rule is, that as to the question whether a purchaser in possession shall or not pay his purchase-money into court, his answer is to be considered as the only evidence; but merely that the order shall not be made before answer, unless the defendant thinks fit to submit the merits of the case to the court by affidavit. But if the case may be made against such a defendant by affidavit, it is difficult to find a principle why the plaintiff is to wait for this relief until the defendant thinks fit to put in an answer, or why an option should be given to such a defendant to meet, or to decline to meet, the case by affidavit. Neither can I find any authority for this proposition on the part of the defendant. In Burroughs v. Oakley 2, the defendant had put in an 1 Meriv. 52. answer in the suit, but no answer as to the object of the motion; for the fact of the possession of the defendant was not even stated in the bill, but was brought before the court by affidavit. In Dixon v. Astley3, there was no answer, and no such point was made. In Bonner v. Johnston4, the Lord Chancellor declined to make the order; not because the defendant had not answered, but because the defendant was in possession as tenant at the time he entered into the contract of purchase; and his possession, 1 Ib. 133. 1 Ib. 366. therefore, not being derived from his character of purchaser, formed no sufficient reason why he should not retain his money until the contract was completed. Here the defendant, in his character of purchaser, obtains the possession from the vendor's tenant, without the consent or privity of the vendor, and it is not reasonable that he should retain both the land and the price of the land. He must pay his money into court." 10. Order to pay the Money into Court not made, in general, before Answer.]-In general, however, the court will not grant the application before answer; nor, probably, in any case, unless where the purchaser has been guilty of unreasonable delay, and there have been clear acts of ownership. Where these acts have been committed after the purchaser became aware of the state of the title, acts of a much slighter character will be sufficient to induce the court to act1; as in Dixon v. Astley, where it appeared, and see Bonner that the timber charged to have been cut down amounted to no v. Johnston, more than an old ash tree (represented to have been very ornamental), and a cherry-tree, and certain coppice-wood, cut and sold, which, however, it appeared, had arrived at maturity; yet Lord Eldon thought them sufficient to call for the interposition of the court, and accordingly ordered in the purchase-money. 11 Mer. 134; 1 Mer. 379. • Cooper v. Denne, 1 Ves. jun. 567. ' Rolls, 7th July, 1831. MS. SECT. 21.-EXCEPTIONS TO THE MASTER'S REPORT ON TITLE. 2. Report referred back, when, 695. 1. Effect of Exceptions to Title being allowed.]-If either party be dissatisfied with the Master's report on the title, he brings his objections to it before the court in the shape of exceptions, when the points in dispute are fully argued and settled. If upon argument of an exception the court should be against the title, the vendor should obtain an order that the exception may stand over; as otherwise, it would appear upon record that a good title could not be made2. The court, however, will not always permit this; especially where the vendor's conduct has been vexatious, or even dilatory only: thus, in a recent case of Andrew v. Andrew 3, Sir J. Leach allowed the exception, refusing |