(2.) As to the rights and liabilities of the highest bidder, after the sale but before confirmation of the Master's report; - and as to opening biddings.

The fact of being, and being declared, the highest bidder, does not at once invest such bidder with the character of purchaser; nor does he assume that character until the Master's report is made and confirmed as hereinafter mentioned: and it has been held by Sir E. Sugden, C, that the Master has a discretion, and is not absolutely bound to accept the highest bidder (q): a loss by fire, even after the report, but before confirmation, falls therefore on the vendors (r): and a motion before confirmation, that the best bidder shall complete, and pay his purchase-money, by a certain day, will be refused (s): but, if the interest purchased be in its own nature determinable - e. g.,a life estate, - it seems that the report will be confirmed, and he must pay the purchase-money, although the event, upon which the interest determines, occur before confirmation (t): so, if the report be confirmed, he will, in the case of a life estate, be entitled to the intermediate income (u).

Bidding after estate bought in.

Resale of lots remaining unsold.

Highest bidder not the purchaser until Master's report confirmed - his rights in the interim.

(m) Sug. 72; Blackbeard v. Lin-digren, 1 Cox, 205; sed quaere, whether the Court might not treat the case as one of an offer to purchase by private contract.

(n) Hughes v. Lipscombe, 6 Ha. 142.

(o) Dowle v. Lucy, 4 Ha. 311. (p) Sug. 66.

(q) In re Costello's, 2 J. & L. 244, 246, 249.

(r) Ex parte Minor, 11 Ves. 559. (s) Anon. 2 Ves. jun. 335.

The death of the purchaser before confirmation of the report, does not, however, vacate the sale, even although he never signed an agreement; sales by the Court, not being within the Statute of Frauds (w): but the contract cannot be enforced against his representatives without suit (x): and it is the practice in such a case not to serve the heir with notice of an application to open the biddings (y.)

If, before the report is confirmed absolutely, the purchaser re-sell at a profit, the sub-purchaser becomes the purchaser under the Court at the advanced price (z): in a late case, where the first purchaser had received the advance in price and had absconded, the Court directed the property to be resold; reserving the question whether, if it should not produce the sum offered by the sub-purchaser, he should not be answerable to the Court for the difference; and reserving all questions of liability in the original purchaser (a).

Until the report is confirmed absolutely, the expectant purchaser may lose his bargain by the Court opening, (as it is termed,) the biddings; that is, directing a re-sale, on the application of a person willing to give a higher price for the property; and this, although he be interested in the proceeds of sale (b), or were present at the sale (c); but, in the last case, the Court will regard the application with some jealousy, and will require a larger advance than under ordinary circumstances (d): and they may be opened a second time (e) on the application of the same person (f).

Death of, before confirmation - contract cannot be enforced against representatives without suit.

Subsale at a profit before confirmation- is for the benefit of the estate.

Until confirmation biddings may be opened on sufficient advance in price.

(t) Anson v. Towgood, 1 Jac. & W. 639; and see Vesey v. Elwood, 2 Con. & L. 47; 3 Dru. & W. 74, overruling Vincent v. Going, cited ibid. p. 75.

(u) Anson v. Towgood, 1 Jac. & W. 637.

(w) See Att.-Gen. v. Day, 1 Ves.221

(x) Lord v. Lord, 1 Sim. 503.

(y) Templer v. Sweet, 8 Beav. 464; Lord Langdale's private opinion seems to have been that the heir should be served.

(z) Hodder v. Ruffin, Taml. 341.

(a) Holroyd v. Wyatt, 2 Coll. 329.

The sufficiency of the advance is considered with reference to the entire purchase-money; including the price of timber, if valued separately from the estate (g): as to what constitutes sufficiency, no definite rule seems to exist; but about ten per cent. seems to be the usual advance on small sums (h); the Court has accepted an advance of 60l. upon 430l. (i), of 80l. upon 775l. (k), of 50l. on 395l. (l), and of 365l. on 7300l. (m); in a late case, the Court refused 300l., but accepted 350l. on 3500l. (n): and it seems that, whatever be its rate, an advance of less amount than 40l. will be refused (o); but an advance of 105l., upon the aggregate price of nine lots sold to the same purchaser, has been accepted (p). In the case of property of fluctuating value, as a colliery (q), (if in work or recently worked (r),) the Court is generally unwilling to risk a resale, and has refused an advance of 1150l. upon 8850l. (s): but in a recent case, where the property was held upon lives, the Court evaded the difficulty by accepting an advance of 350l. on 5500l., on condition that the party opening should be bound by his offer if no better bidding could be enforced (t).

What advance is sufficient for the purpose.

(b) Hooper v. Goodwin, G. Coop. 95.

(c) Thornhill v. Thornhill, 2 Jac. & W. 347, overruling earlier cases there cited; see Sug. 88, n.

(d) Tyndale v. Warre, Jac. 525, 526; Lefroy v. Lefroy, 2 Russ. 606; Shallcross v. Hibberson, 1 C. P. Coop. N. R. 380.

(e) Scott v. Nesbit, 3 Bro. C. C. 475; Walond v. Walond, 8 Beav. 352.

(f) Preston v. Barker, 16 Ves. 140; Sug. 85.

(g) Bates v. Bonnor, 6 Sim. 380. (h) See Sug. 85; Dan. Ch. P. by

H. 1210; and 2 Coll. 537.

(i) Bourn v. Bourn, 13 Sim. 189. (k) Connell v. Hardie, 3 You. & C.677

(l) Hughes v. Lipscombe, 6 Ha. 142.

(m) Domville v. Berrington, 2 You. & C. Ex. 723; and see Walond v. Walond, 8 Beav. 352.

(n) Holroyd v. Wyatt, 2 Coll. 537.

(o) See Farlow v. Weildon, 4 Madd. 460; Gilbert v. Wetherell, there cited; Brookfield v. Bradley, 1 Sim. & St. 23; Ward v. Cooke, 9 Sim. 87; in Tempter v. Sweet, 8 Beav. 464, the advance was in fact 50l. instead of 30l..; see Reg. Lib. B. 1844, fo. 1224.

(p) Humphries v. Roberts, 6 Jur. 680, V. C. K. B.; vide infra, p. 558, n.

Where several lots are purchased by the same person, and the biddings are opened as to any of them, he may give up those which he subsequently purchased, on satisfying the Court that he bought them in consequence of having purchased the prior lot (u); and a like indulgence would probably be granted if, the biddings in respect of a subsequent lot being opened, he could satisfy the Court that he bought the prior lot with a view of purchasing such subsequent lot (w): and a person seeking to open biddings on some only out of several lots bought by the same purchaser, will therefore be required to take such other lots at their original price, if the purchaser shall decline them, and they shall not fetch so much on a resale (a?).

The person wishing to open a bidding must, at his own expense, apply for leave, by motion, notice of which must be given to the parties in the cause, and the purchaser (y), but not to the heir of a purchaser dying before confirmation of the Master's report (z): he cannot in one motion include lots sold to separate purchasers (a): if his offer be accepted, the order will, in general, be made on condition that he pay, as a deposit, the amount of his advance (b); and this he must do at his own expense (c): however, in a recent case, where an advance of 7000l. was offered upon 27,000l., Lord Langdale allowed the biddings to be opened on payment into Court of only 3400l. (d): he must also pay to the first purchaser interest, at four per cent., on such part of his purchase-money as may have lain dead (e); and his costs, including any costs which he himself paid on opening former biddings (f), and also, it would seem, (although no special directions will in general be given (g),) his or his agent's costs of a journey to the estate (h): and where property which had been sold in several lots was directed to be resold in a single lot, the Court, under the special circumstances, directed that the person opening the biddings should pay to the purchasers their expenses of surveying the estate (i).

When opening biddings on any of several lots taken by the same purchaser discharges him as to the residue.

Course of proceeding to open biddings.

(q) Williams v. Attenborough, Turn. & Russ. 70.

(r) Jeffreys v. Smith, 1 C. P. Coop. N. R. 381.

(s) Williams v. Attenborough, Turn. & Russ. 70.

(t) Walond v. Walond, 8 Beav. 352; see Wren v. Kirton, 8 Ves. 502.

(u) Price v. Price, and Fielder v.

Fielder, 1 Sim. & St. 386.

(w) See Sug. 89; Ex parte Tilsley, 4 Madd. 227, n.; et vide supra, 507, as to connecting lots.

(x) Bates v. Bonnor, 6 Sim. 380.

(y) Sug. 84; Dan. Ch. P. by H. 1214.

(z) Templer v. Sweet, 8 Beav. 464.

(a) Goodall v. Pickford, 6 Sim.

If the person obtaining the order neglect to draw it up and pay the deposit, any other person may, upon notice to him, move to open the biddings (k).

The order being obtained and drawn up, and the deposit paid, the estate will then be resold, and the proceedings on the resale will be similar to those on the original sale (l); it appears doubtful whether the estate can be re-allotted without a special order (m), made on special reasons (n).

Deposit required.

First purchaser to be paid interest and costs.

Biddings may be reopened on neglect to pay in deposit.

Resale.

379. In Humphries v. Roberts, 6 Jur. 680, the nine lots appear to have been bought by the same purchaser; see Registrar's Minute Book, Trin. T. 1842, fol. 258. where the case is entered as Jones v. Williams.

(b) See Anon. 6 Ves. 513.

(c) Sug. 84.

(d) Manners v. Furze, 17 L. J., N. S. Ch., 485, R.

(e) Re Birch, Sug. 85.

(f) Bales v. Bonnor, 6 Sim. 382.

(g) See Anon. 2 Ves. jun. 286.

(h) S. C.; and see note to Farlow v. Weildon, 4 Madd. 461.

(i) Watts v. Martin, 4 Bro. C. C. 113, Belt's edition.

(k) Gibbons v. Howell, 4 Madd. 52.

(l) Dan. Ch. P. by H. 1215.

(m) Ibid.; and compare Sug. 87.

(n) Ward v. Cooke, 9 Sim. 87;

The first purchaser is entirely discharged by the order opening the biddings (o).

If, upon a re-sale, the person opening the biddings be outbid, he is, in the absence of any special agreement with the Court (p), discharged from his offer (q), and may reclaim his deposit, but without costs (r), although the price of the estate has been more than doubled by the re-sale (s); but such costs (t), and also interest at 4l. per cent. on the deposit (u), have been allowed where the biddings have been opened merely for the benefit of the parties interested in the proceeds of the estate.

A person opening biddings in a fictitious name, will be compelled to take the estate at the price at which he opened them (w), if, on a re-sale, no better offer is made and can be enforced (x).