May be disposed of ou motion - terrible.

Objections to title, what are. for purposes of motion.

(s) Sug. 416; and see cases there cited.

(t) See Blyth v. Elmhirst, 1 Ves. & B. 1; Withy v. Cottle, 1 Sim. & St. 174; Gordon v. Ball, 1 Sim. &

St. 178.

(u) Turn. & Russ. 78.

(w) Wood v. Machu, 5 Ha., see p. 161; and see Boyes v. Liddell, 1 Y. & C. C. C. 133.

(x) Wood v. Machu, 5 Ha. 158.

(y) Curling v. Flight, 5 Ha. 248.

And since the object of granting the reference before the hearing is merely to save time, the Court has refused such a motion by a plaintiff-vendor, who, for eleven months after answer, had taken no proceedings in the suit (z).

And, of course, no reference will be directed even at the hearing, if the Court be satisfied that the purchaser has intentionally waived his right to investigate the title (a): and it has been refused on the mere ground of long possession and vexatious objections on the part of the purchaser (b).

We have already seen that a purchaser who accepts a title, conditionally on the vendor complying with a specified requisition, which is not complied with, is entitled to a general reference of title (c).

The reference, when directed, should be complete and extend to all that regards the title, but not to other matters (d): the order is, to inquire whether the vendor can, at the time of the reference (not at the date of the contract) show a good title (e), and it should contain a direction that if the Master shall find that a good title can be shown, he shall inquire when it was first shown: and so the order is now always made; unless, for some reason stated at the time, and by the express direction of the Court, the inquiry as to the time when a good title was first shown, be omitted (f); so, also, an inquiry will, if desired, be directed, whether the defendant ever and when required of the plaintiff any and what evidence in proof of a point material to the title (g); but not as to a matter which has no reference to the title; e. g., the sufficiency of the abstract delivered (h). The order should also contain the usual directions for the production of deeds, etc. and for the examination of the parties on oath, and reserve further directions and costs (i).

Order refused on ground of delay; or waiver of title; conditional acceptance of title-effect of

Order of reference, subject-matter and form of.

(z) Dorin v. Harvey, 9 Jur. G48; 15 Sim. 49.

(a) Fleetwood v. Green, 15 Ves. 594; Margravine of Anspach v. Noel, 1 Madd. 310; Burroughs v. Oakley, 3 Sw. see p. 168, and earlier cases cited in argument; Blacklow v. Laws, 2 Ha., see p. 4 7.

(b) Hall v. Lover, 3 Y. & C. 191.

(c) Supra, p. 217; Lesturgeon v. Martin, 3 Myl. & K. 255.

(d) Jennings v. Hopton, 1 Madd. 212; Bennett v. Rees, 1 Keen, 405.

(e) Longford v. Pitt, 2 P. Wms. see 630; Dan. Ch. Prac. by H., 982.

(f) Per Lord Langdale in Bennett v. Rees, 1 Keen, 409.

The form of the order of reference in a suit commenced by claim under the Orders of April, 1850, is as follows (k); viz., "that it be referred to the Master of this Court in rotation to inquire whether a good title can be made to the property comprised in the agreement in the plaintiff's claim mentioned: and in case the said Master shall be of opinion that a good title can be made, it is ordered, that he do state at what time it was first shown that such good title could be made;" and reserves further directions and costs: and under the 17th Order the Master has a general authority to cause the parties to be examined upon interrogatories and to produce deeds, books, papers, and writings, as he shall think fit.

Pending the reference, the defendant cannot, under the 114th Order of May, 1845, dismiss the bill for want of prosecution (l).

No state of facts is carried in, but the Master proceeds upon the abstract: and he will assume its correctness and not require the production of the title deeds, unless their production is insisted on by the purchaser (m): on "litigated questions of title, written objections are brought in by the party objecting; and the Master is either attended by counsel on both sides, or the written opinions of counsel upon the abstract already given are produced to him, according to circumstances" (n): and he has the same power to examine witnesses on a reference upon motion, as he would have if it were under a decree (o).

Form of, in suit commenced by claim.

Proceedings on reference; Blaster proceeds on abstract; doubt must be a reasonable doubt.

(g) Ibid. 408. (h) Ibid.

(i) Winterbottom v. Ingham, 9 Sim. 654.

(k) See Schedule C. No. 10.

(l) Collins v. Greaves, 5 Ha. 596. (m) See Danl. Ch. Prac. by H. 1168. (n) Ibid.

The usual and recognised (p) practice, is, for the Master, instead of personally perusing the abstract, to submit it to a conveyancing counsel, of his own selection: but although he may avail himself of the assistance afforded him by the opinion thus obtained, he ought not, in his report, to state it as the foundation of his finding (q).

"In the prosecution of the order for reference, the Master, in his discretion, may examine the parties upon interrogatories, and receive evidence upon affidavit, or by the examination of witnesses before him either by written interrogatories or viva voce. He may also call for such deeds and other muniments as are necessary to the elucidation of the title" (r).

A purchaser will not be compelled to take a doubtful title (s); or a merely equitable title (t), unless the sale be under a decree of the Court (u), although he may have consented to go before the Master upon a reference as to the title to the estate directed in an administration suit (w); nor will he be compelled to take an equitable title which his vendor, who purchased from the Court, was himself obliged to accept (x); nor will a case be sent for the opinion of a Court of Law without his consent (y); and if, upon the return of a certificate in favour of the title, the Court has any doubt upon the point, a case will be directed to another usually takes counsel's opinion thereon: what evidence he may receive and require.

Purchaser need not accept doubtful or merely equitable title; or consent to a case being sent to Law •

(o) Woodroffe v. Titterton, 8 Sim. 238.

(p) See Flower v Walker, 1 Russ. 408.

(q) In re Collard, 10 Beav. 334.

(r) Danl. Ch Prac. by H. 1169; and see Winterbottom v. Ingham, 9 Sim. 65 4: and 17th Order of April, 1850, supra, p. 522.

(s) Sug. 506; B/osse v. Lord Clan-morris, 3 Bligh, 62; and other cases cited: see the argument of defendant's counsel in Howarth v. Smith, 6 Sim. 161.

(t) Ibid. and Law v. Urlwin, 1 Sim. 377.

(u) Infra.

(w) Cann v. Cann, 1 Sim. & St. 284.

(x) Lord Waltham's case, Sug. 52

(y) Roake v. Kidd, 5 Ves. 647.

Court of Law (z), and notwithstanding such certificate, the Court of Chancery will entertain and act upon any equitable objection to the title (a).

The doubt, whether upon law or fact, must, in order to be a ground for rejecting the title, be a reasonable doubt: according to Lord Hardwicke, "the Court, in carrying agreements into execution, must govern itself by a moral certainty, for it is impossible in the nature of things that there should be a mathematical certainty of a good title; there are often suggestions of old entails, and often doubts what issue persons have left, whether more or fewer, and yet these were never allowed to be objections of that force as to overturn a title to an estate" (b): and the above remarks are cited with approbation by Sir W. Grant (c), and Sir E. Sugden (d): however, in a case before Mr. Baron Alderson, upon the above dicta as to moral and mathematical certainties being cited, the Court observed, "that only means that you cannot prove a title by means of reasoning, but only with the help of evidence; those sort of apothegms get a great deal more reputation than they deserve" (e).

As to doubts depending on a point of Law, Sir E. Sugden suggests, that a Judge "may feel himself more at liberty to decide a general point of Law between vendor and purchaser than a question of construction of an informal instrument, which can afford no precedent, and upon which men may naturally differ" (f): and even an abstract point of law will not, if considered doubtful, be decided against a purchaser even by the House of Lords (g): and where the purchaser objects to the title upon the authority of a decision of a Court of Law in a similar case, the Court of Chancery, although entertaining a strong opinion against the correctness of such decision, will not overrule it, but will direct a case (g).