I think it is important that the several sums to be paid for the penalty, costs and charges should not be left uncertain and indefinite, they should be ascertained and specified, so that the defendant might know on what terms he may obtain his discharge, and that the gaoler also be not left in the dark as to the terms on which he might release his prisoner. R. v. Hall, 1 Cowp. 60; R. v. Payne, 4 D. & R. 72. This latter case is exactly in point, the commitment stating that the defendant had been committed for three months "unless before that time he pays the sum of 6 pounds, together with the expenses of the warrant, viz.: a sum of shillings," without specifying

the sum he is to pay for expenses.

So, in the present case, whether the magistrate had, or had not, the right to impose the costs of conveying to gaol, makes no difference, as the fact of its being there in an indefinite and improper form, is sufficient, under R. v. Payne, to render the

commitment defective and invalid.

On this last ground, I think the commitment is bad, and the defendant should be discharged from custody.

TAYLOR v. SHARP.

(IN EQUITY.)

Sale under decree.-Leave to plaintiff to conduct sale and bid. Unless all parties consent, a plaintiff in a mortgage suit will not be permitted to bid at a sale of which he has the conduct.

G. R. Howard for plaintiff.

E. H. Morphy for incumbrancers.

[24th September, 1885.]

TAYLOR, J.-This is a mortgage suit in which the bill was taken pro confesso against the original mortgagor. A decree has been made, the accounts have been taken, and the parties entitled to redeem having made default, the plaintiff has obtained a final order for sale. He now applies for leave to bid, keeping the conduct of the sale. Some of the parties have consented to his obtaining such an order, but no consent from the mortgagor is produced.

Counsel have referred me to a large number of cases bearing on this subject, and I have examined them all.

Campbell v. Walker, 5 Ves. 678, was not the case of a sale under a decree, but one by trustees under a power to sell contained in a will. One of the trustees having become the purchaser an inquiry as to the value, etc., was directed, the general principle being that a trustee is not absolutely incapacitated from purchasing the trust estate, but that if he does so, and the sale is impeached, the onus is on him to show that everything was regular, that he acted bona fide, took no improper advantage, and gave sufficient value. In Wilson v. Greenwood, 10 Sim. 101, note, the assignees of a bankrupt partner filed a bill against the solvent partner. At a sale of the partnership effects under an order he became the purchaser, and a motion to set aside the sale, on the ground that the partner was not at liberty to bid, was refused by Lord Eldon. Elworthy v. Billing, 10 Sim. 98, was also a motion to set aside a sale to a defendant, on the ground that he had not obtained leave to bid, and it was refused by V. C. Shadwell, who said that, as far as his experience went, there was no instance of such an order being made where the purchaser was, merely, a party in the cause, and not as such, the party to conduct the sale.

In Dixon v. Pyner, 7 Hare, 331, the conduct of the sale was given to the trustees by the master, on the ground that they were in a situation to conduct it more beneficially for the parties interested, and V. C. Wigram approved of what the master had done. See also Knott v. Cottee, 27 Beav. 33, in which the Master of the Rolls held that, although according to the ordinary practice of the court the plaintiff has the conduct of the sale, yet the court will take it from him and give it to another when it is for the henefit of the parties interested that such a course should be adopted.

The principle which governed the practice of the court was, that the person having the conduct of the sale stood, as to that, in a fiduciary relation to all parties interested in the estate, and having the preparation of the advertisement and particulars, and largely the fixing the time and place for the sale, he was not allowed to bid, which would place him in a position in which his duty and interest might conflict. As a general rule, trustees were not given leave to bid unless all the cestui que trusts being

sui juris consented to their doing so, and no other purchasers at an adequate price could be got. In Tennant v. Trenchard, L. R., 4 Ch. App. 547, Lord Hatherley stated the rule to be, that if those who are interested in the estate insist that a trustee ought not to be allowed to bid, the court will certainly give so much weight to their wishes as to say that until all other ways of selling have failed he shall not be allowed to buy. But if the court is satisfied that no purchaser at an adequate price can be found, then it is not impossible that the plaintiff may be allowed to make proposals to become the purchaser.

In Sidny v. Ranger, 12 Sim. 118, a party to the suit, who was a solicitor and had the conduct of the sale, purchased the estate, but the court ordered the estate to be again offered for sale, and if there should be no higher bidder that the party should be held to his bargain.

Domville v. Berrington, 2 Y. & C. Ex. 723, was a case in which, after a sale, a motion was made to open the biddings and that the plaintiff, a mortgagee, might have leave to bid. The leave to bid was given, but he was not allowed to have the conduct of the sale.

In Ex parte McGregor, 4 De G. & Sm. 603, where the mortgagee had leave to bid, even although the parties having the conduct of the sale unnecessarily delayed it, Vice Chancellor Knight Bruce refused to depart from "the rule adopted on general grounds, that a mortgagee who has leave to bid cannot have the conduct of the sale."

In Ricker v. Ricker, 27 Gr. 576, the plaintiff, a mortgagee, and executor of the mortgagor, had leave to bid, the guardian ad litem of an infant defendant being given the conduct of the sale. A petition was filed by the infant after he attained twenty-one, impeaching the sale as an improper one. V. C. Proudfoot considered the advertisement in many respects objectionable, but said, "When the decree gave the plaintiff liberty to bid at the sale, it put the parties at arm's length; it divested the plaintiff, so far as the sale was concerned, of any fiduciary relations he might have sustained to the infant; intrusted the conduct of the sale to the infant's guardian, and in effect placed the plaintiff in the position of an outside purchaser. He is no longer responsible for the proper conduct of the sale; that is taken from him, and he can only be made to answer for fraud, collusion, or perhaps error."

in the recent

The suit was

The subject was discussed by Mr. Justice Fry, case of Boswell v. Coaks, 23 Chan. Div. 302. one for administration, aud the solicitor of the defendant, the executor, had leave to bid, the conduct of the sale being given to a firm of solicitors, on their undertaking not to communicate any particulars to him, and to carry out the sale wholly independent of him. The property was offered subject to a reserved bidding, and was not sold. Coaks afterwards, jointly with another person, agreed to purchase at a sum which was only two-thirds of the reserved bid. It was sought to set this purchase aside on the ground that a fiduciary relation still existed notwithstanding the leave given to bid, but the learned judge held otherwise and refused the application. In both these cases the conduct of the sale was taken from the party allowed to bid and given to another.

The case of Ricker v. Ricker was carried to the Court of Appeal (7 Ont, App. R. 282), when the order of V. C. Proudfoot dismissing the infant's petition was reversed. It was held that the liberty to bid accorded to the plaintiff was given him for the purpose of protecting his interests as mortgagee, but did not absolve him from the duty which, as trustee, he owed to the infant; and that the conduct of the plaintiff prior to and at and about the sale, by means of which he had been enabled to make a profit at the expense of the infant cestui que trust, was such as would have rendered the sale invalid if the land had remained in his hands; but as it had passed into those of an innocent purchaser the plaintiff should be charged with the outside selling value of the estate at the time of the sale, or should pay to the defendant the amount due to him under the will, with interest from the date of the sale, together with the costs in the court below subsequent to the petition, and also the costs of appeal. The remarks of Vice-Chancellor Proudfoot which I have quoted were referred to by Chief Justice Spragge in terms of disappro bation.

In Crawford v. Boyd, 6 Ont. Pr. R. 278, it was held that where the person having the conduct of the sale bid, and was the highest bidder, an application by him to be confirmed as purchaser will not be granted if any of the parties to the suit object.

Ramsay v. McDonald, 8 Ont. Pr. R. 283, was a case in which the plaintiff, on the settling of the advertisement, made a tender

for the property, filing affidavits as to value. The master declined to accept his tender, and his doing so was approved by the court. Chancellor Spragge said: "It has always been the practice of the court not to allow a party conducting a sale in the court to bid at the sale. To allow it would be to permit him to occupy a position where his interest would be in conflict with his duty."

That a master cannot give a party conducting the sale leave to bid, was held in Re Laycock, McGillivray v. Johnson, 8 Ont. Pr. R. 548. The language used by V. C. Blake is: "One of the most stringent and zealously guarded rules of court is, that a party's prima facie interest will not be permitted to conflict with his duty. The vendor's duty is to get as high a price as possiblehis interest, if allowed to bid, to pay a low one."

Against these cases, it would seem that in Ireland such leave has been given. In Spaight v. Patterson, 9 Ir. Eq. R. 149, the Master of the Rolls thought that under the particular circumstances of that case he would be justified in permitting the plaintiff to bid at the sale, at the same time leaving with him the carriage of the decree. And in a subsequent case, of Steele v. Devonport, 11 Ir. Eq. R. 339, he followed his former decision.

The uniform practice in England and in Ontario seems to be, not to permit a plaintiff to conduct a sale, and at the same time to bid at it. I do not think I would be warranted on the strength of the two cases in Ireland, in departing from the established rule, which is on the whole a wise and salutary one. The leave to bid asked must therefore be refused. As the incumbrancer who appeared did not oppose its being granted, there will be no

costs.

HALSTED v. CONKLIN.

This case was similar to the last, with the exception that all parties consented to the leave, asked by the plaintiff, being given.

TAYLOR, J.-It is objectionable that the party having the conduct of the sale should have leave to bid, but if the parties are willing that he should do so, an order may go giving him leave. But it must be drawn up as a consent order.