616 ANDREWS v. SCOTTON.—2 BLAND.

it. Savile v. Savile, 1 P. Will. 745. Hence it may be inferred
that the Court considered itself as baying the power to proceed
against the purchaser, bat that it did not think proper to do so in
that case.

One of the most accurate of the English reporters, gives us the
following, as the words of Lord Hardwicke, delivered in the
year 1748, in relation to this subject: " the present," says he, "is
a judicial "sale of the estate, which takes it entirely out of the
Statute of Frauds. The order of the Court was not interlocutory,
but made part of the decree; as it always is on the matter reserved,
though made at another day; and it includes as well the carrying
the purchase into execution, as the establishment of the charity;
amounting to a decree for the conveyance of the estate on one
side, and payment of the money on the other; who might be pro-
secuted for a contempt in not obeying that order. And it is stronger
than the common case of purchasers before the master, who are
certainly out of the statute, nor should I doubt the carrying into
execution against the representative, a purchase by a bidder be-
fore the master, without subscribing, after confirmation of the
master's report, that he was the best purchaser; the judgment of
the Court taking it out of the statute. But even in common cases,
this question may arise; as if the authority of an agent, who sub-
scribed for the bidder, not being admitted, cannot be proved. Yet,
if the master's report could be confirmed, it should be carried into
execution, unless some fraud; for this is all exclusive of any de-
fence that may still be setup on the other side." Attorney-General
v. Day, 1 Ves. 218.

* In this case, the testator had bequeathed a certain sum
650 of money to be invested for charitable purposes, and on a
reference to the master to propose a scheme of investment, he had
reported, that the money should be laid out in the purchase of cer-
tain lands. The report has been confirmed, and the object then
was, to obtain the specific performance of the order confirming the
master's report. As to which point. Lord Hardwicke is reported
to have said, "the material consideration is, whether, as circum-
stances now stand, considering the events and alteration of rights
thereby, the Court ought to carry it into execution? The general
rule certainly is, that this is discretionary in the Court, but will
not hold in the present; for that is generally in cases, where there
may be an election of two remedies, by corning here for a specific
performance, or by action at law; whereas, here, there can be no
remedy at law; all arising under the acts of this Court, from that
order amounting to a decree. So, that if this Court does not carry
it into execution, it cannot be at all; yet, whether other remedy or
not, if there are strong and material objections against it, the
Court ought not to do it."