valeur, au delà, ou au moins aussi approchant de 66 66 1810. BAKER against sa valeur que possible, ce qui ne peut résulter que de la concurrence des enchérisseurs, surtout YOUNG and "de la Grande Bretagne où les Gazettes, dans les quelles l'avertissement du Sheriff auroit été inséré, "auroient été envoyées." A variety of oppositions à fin de conserver on the part of different creditors of the defendants were likewise returned and filed by the Sheriff, which had been duly signified to him after the property in question had been by him seized. Upon this return of the Sheriff, Bowen moved to file a petition in intervention on the behalf of Blackwood which, after hearing the parties, the Court permitted him to file in this petition, after stating the seizure by the Sheriff of the Distillery at Beauport, and the advertising of the same for sale on a particular day, Blackwood alleged, that on the day fixed for the said sale, he did lawfully bid and become an enchérisseur of the said Distillery and premisses and after several biddings and encheres did then and there become, and yet remained, the last and highest bidder, or dernier et plus haut enchérisseur, thereof, for the price or sum of £3050, and did then and there become entitled to be the Adjudicataire of the said Distillery and premisses, and to have, hold, and enjoy, the same as his own property, paying therefor the said last mentioned sum of money; but that the defendants on the said day of sale, without any good and sufficient reason whatever, and contrary to law, filed an opposition in the hands of the Sheriff, formally prohibiting and opposing, under divers false and erroneous suppositions and pretences, the adjudication of the said Distillery, &c. so sold as aforesaid to him (Blackwood,) by reason of which opposition the Sheriff did not then, nor had he at any time since, adjudged to him the said Distillery, &c. as he was bound to do, and therefore he concluded, first, That the opposition of the defendants should be declared in all things null and void, and dismissed with costs; and secondly, that another. and BLACKWOOD Intervg. the 1810. BAKER the Sheriff should be ordered and directed to make a good and sufficient title to him (Blackwood) of the YOUNG and said Distillery, &c. upon his paying the said sum of £3050, &c. &c. against another. and BLACKWOOD Intervg. To this petition a general answer was filed by the defendants and opposants Young and Ainslie, and the parties being at issue were heard upon the merits of the Petition. Bowen, in support of the petition, contended, that the opposition of the defendants to the adjudication, upon the grounds of a want of bidders, and of the premisses being of greater value than the sum bid by Blackwood, was no opposition in law, and that the Sheriff ought not to have received it at the moment of the sale, as by the Prov. Stat. 41 Geo. 3. c. 7. s. 11. the same should have been notified to him fifteen days previous to the sale; that in the present instance the defendants had taken upon themselves to fix the value of the premisses, and thereby prevent the execution and effect of the King's writ, and if such an interference could be allowed, a similar opposition might be made by the defendants to the execution of any subsequent writ, and so ad infinitum, and the ends of justice defeated. That the day fixed by the Sheriff for the sale of property taken in execution was peremptory, and the sale could not be postponed, unless there was an impossibility to proceed, as in the case of a want of bidders, L. C. Denizart Verbo enchere. Sec. 4. Nos. 1 & 4. Repertoire de Jurisprudence, Verbo, Enchere, 1. Pothier, 4to. p. 654. Traité du Contrat de Vente, c. 2. s. 3. No. 516. Pothier Coutume d'Orléans 788. Introduction au Titre 21 des criées, s. 9, No. 64. But in this case no such reason existed, there were bidders, and Blackwood being the last and highest, the Sheriff ought to have adjudged the premisses to him, and having refused or rather neglected so to do, Blackwood had been compelled to apply to this Court for relief, and he trusted that by its judg ment, 1810. BAKER against ment, the Sheriff would be ordered to perfect the sale, and to execute the necessary title to Blackwood of the Distillery, &c. so contracted for, and acquir- YOUNG and ed by the latter. Stuart, on the same side, observed that in the present case, it was not necessary to advert to the french law, since the Prov. Ord. 25th Geo. 3. c. 2. had fixed and determined the law upon the point in question, and had superseded all other.-As between individuals, a similar conduct to that of the Sheriff in the present instance, would have been considered a breach of faith, how much more so might it be considered, when it was the act of a public officer, under the direction of a Court of justice. In the advertisement of the Sheriff, filed and in evidence, he saw sufficient to found the title of Blackwood, it was in these terms, "Now I do hereby give notice, "that the same will be sold and adjudged to the 'highest bidder at the Court House in the City of Quebec, on Monday the 14th day of August "next, at eleven of the clock in the forenoon, at "which time and place the conditions of sale will "be made known." By this the Sheriff had engaged that the premisses should be sold to the highest bidder on a particular day, a promise and engagement, on the part of the officer of this Court, which should have been complied with, unless some legal impediment had intervened to prevent it. Upon the return of the Sheriff it was stated, that after the usual formalities, the premisses had been set up, and that Blackwood was the third last and highest bidder, and consequently the Sheriff was bound to adjudge the premisses to him. In France the interference of the Court was necessary to complete the adjudication, but here, under the existing law, it was not necessary, and the conditions of the sale being complied with-by the purchaser, the adjudication of the Sheriff was final. The Court, he said, would always look with a jealous eye upon oppositions made by defendants, and discourage every attempt to stop the another. and BLACKWOod Intervg. 1810. BAKER against another. BLACKWOOD Intervg. the effect of the King's writ. It was true the plaintiff had consented to the opposition to the adjudicaYOUNG and tion, but there were other parties whose consent was equally essential. The opposition in this case was clearly irregular and inadmissible, and ought not to have been attended to by the Sheriff, he should have closed the sale, on the day by him fixed, and adjudged the premisses to the then highest bidder, Blackwood, who was entitled to the performance of the Sheriff's engagement; and inasmuch as the Sheriff had omitted to do what clearly he ought to have done, the Court would consider it as done, and give the proper effect to it, by ordering the Sheriff to execute a title in favor of Blackwood. Borgia, against the Petition, contended that the opposition of the defendants was, what, under the ancient law of the country, was termed a Requisitoire, and was not one of those mentioned in the Prov. Stat. 41 Geo. 3. c. 7. s. 11. the provisions of which did not reach it. That by the Prov. Ord. 25 Geo. 3. c. 2. the Sheriff was placed in the same situation as the Court stood, under the ancient law, in the adjudication of property, inasmuch as it was therein declared, that the sale by the Sheriff should have the same force and effect as the decrêt by the Court. By the ancient law the bidder was bound by his bidding, but not the person selling, nor the Court, nor as in this case, the Sheriff, until the property is adjudged, which is an acceptance of the bidding; and inasmuch as the Sheriff, in the present case, did not adjudge, there had been no acceptance of the bidding on his part, and the petition of Blackwood ought therefore to be dismissed, unless a positive authority could be produced to shew, that the ancient law of Canada, in this respect, had been abrogated, which he denied, nor was the right of a remise d'enchere, which the Judge, under the ancient law, granted ex officio, or at the requisition of one 1810. BAKER against one of the parties, when the sum bid for the property did not approach its real value, in the least changed, and he cited Duplessis, 1. Vol. Fe. 16, book 5. c. YOUNG and 6. "de l'Adjudication." The Advocate General for the plaintiff, said that no odium could attach to the opposants, as the proceedings adopted by them were calculated for the benefit of their creditors, & of all concerned, by preventing the sacrifice of a valuable property: he asked whether it was not competent to the plaintiff to stop the sale, and the effect of the writ of execution, though there were biddings, by declaring that the debt, for the payment of which the property had been seized, was satisfied; he contended that the plaintiff had such a right, and in the present case the plaintiff had been so far satisfied, that he had acquiesced in the opposition of the defendants, and consented to a remise of the sale for beneficial purposes. Bowen, in reply, denied the right to claim a remise of a Sheriff's sale under the existing law, it having been done away by the Prov. Ord. 25. Geo. 3. c. 2. which gave no power to the Sheriff to postpone the sale, he however admitted, that the case would have been different, and would have afforded some colour for postponing the sale, if before the property had been set up, the bidder Blackwood had acquired a right, which no consent of the plaintiff and defendants could take away but if such consent could avail, still there were other creditors of the defendants who were opposants, and who ought to have been considered as saisissants equally with the plaintiff, and whose consent had not been obtained; As to the allegation of the defendants that the property in question was worth more than the sum bid, he said, the sum which had been offered by Blackwood, ought to have been considered as the true value of the premisses, no person having offered a higher sum. The another. and BLACKWOOD Intervg. |