636 ANDREWS v. SCOTTON.

ready for hearing, and the solicitors of the parties having been
fully heard, the proceedings were read and considered.

This application has been assailed as a novelty, altogether with-
out precedent here, and having few even of English origin, and
those few of very late date, and-long since our revolution. It has
also been opposed upon the ground that the parties interested can
only obtain redress, if, indeed, they are really entitled to any, by a
bill in equity or a suit at law; in which, as it is said, the whole
case can be fully investigated, the rights of the parties conclusively
established, and complete justice done to both.

The defence taken in this case, if sustainable in all its conse-
quences, appears to be destructive of some of the most valuable
and important powers of this court. Controverted points, arising
between the court's trustee for the sale of property and the pur-
chaser have frequently been brought before me, since I came here;
but in each instance they have been treated as insulated matters of
mere practice, and have passed off in that way. This case has
assumed a more grave aspect. I shall, therefore, now review the
subject more at large, and upon general principles.

On considering the nature of sales under the authority of the
Court of Chancery, the first inquiry which suggests itself is, who
are the real parties to the contract ? This very idea of a contract,
implies that there is one party able and willing to contract, and
another to be contracted with. It implies a perfect capacity and
free will, in each of the parties to the agreement. To a contract
of sale, made under a decree of this court, neither of the litigating
parties can be considered as the vendor; although they, with
f others, such as creditors, who may be allowed to come in after-
wards, may be very materially interested in the sale. The plain-
tiff cannot be considered as the vendor; because, oftener than
otherwise, he has no title, always states his inability to sell, and
prays the court to decree that a sale be made. The defendant
cannot be the vendor; because he always positively refuses to
part with his property, unless forced, or sanctioned in doing so by
the power of the court. If then, neither of the litigating parties
can be separately deemed to be the vendor, it is clear, that they
cannot both together, be so considered.

But such sales are always made by an agent; in England, by a

master, in this state, by a trustee. Private contracts may be made

and executed in person, or by attorney; but the attorney is never

considered as one of the contracting parties, he exercises no will