1810.

BOGLE

and others. against CHINIC

opposants Proux and Bonenfant are aware of this, and being desirous, that this right shall not enure

to the Adjudicataire in this case, they require us to and make the continuation of their lease a condition of

PROUX and

Op.

BONENFANT, the sale; this, however, is opposed by the seizing creditor, and as it is so, it is plain that the conclusions of the opposition, which go to this point solely, cannot be granted.

16.

Friday, Feb.

No motion, for an order to resell real property at the folle enchere of the adjudicataire, can be granted, unless

Per Curiam,

Let the opposition be dismissed with costs.

BAKER against Young and another.

and

Several Opposants.

THE plaintiff sued out execution against the defendants, upon a judgment recovered in this

cause, and the Sheriff returned, that he had seized notice thereof certain real property of the defendants, which had to the adjudica- been by him sold and adjudged to Mrs. Christian

has been given

taire.

Ainslie Young, but that the purchase money had not been paid; the Sheriff also returned and filed, with the writ of Fieri Facias, several oppositions à fin de conserver, on the part of different creditors of the defendants.

By the Prov. Stat. 41, Geo. 3. c. 7. s. 14, it is enacted, "that whenever it shall appear to the

Court, by the return of the Sheriff, that the purchaser or Adjudicataire of any real property seized and sold by the Sheriff, shall refuse or neglect to pay the amount of his said purchase, in conformity to the terms and conditions of sale, the said court is hereby authorised, upon motion of the plaintiff prosecuting the sale, or of the defendant, or of any Opposant, to order and adjudge, that the Sheriff do proceed de novo, to sell the

66

said

" said real property at the folle enchere or costs and charges of the said purchaser or Adjudicaire."

Under this Statute, Bowen, for certain of the opposants, now moved, that the said real property, so sold and adjudged by the Sheriff, should, by an order of this Court, be resold by him, at the folle enchere, costs and charges of the Adjudicataire Christian Ainslie Young, to which order, he contended, a party was entitled, upon motion, without previous notice to, or a rule on, the Adjudicataire to shew cause, the same not being required by the Statute; the Adjudicataire, in the present instance, if she had had any thing to offer, was bound to have appeared on the return of the execution, and not having done so, she had been in default, and thereby tacitly admitted that she had no sufficient reason for not paying the purchase money. The facts of her purchase, and of her neglect to pay, were sufficiently established, by the return of the Sheriff, and there was now before the Court, all that was necessary to ground the order applied for.

SEWELL, Ch. J. It would be a departure from the first principles of natural justice, to condemn the Adjudicataire unheard, and this we should do, if we ordered a sale of the property, which she has purchased of the Sheriff, to be made at her folle enchere, without allowing her the means of shewing why the purchase money has not been paid, by giving her a day in Court for that purpose. By the statute, we are "authorised upon motion to order that the Sheriff do proceed de novo to sell the property;" but this cannot be understood to mean any other than a motion in the common course, upon which all parties are entitled to the priviledge of being heard and of which, therefore, previous notice must be given, on a day in court upon a rule nisi. The practice, in the Courts of France, required invariably that the Ad

B 4

judicataire

1810.

BAKER against YOUNG and others.

1810.

BAKER against YOUNG and others.

judicataire should be summoned, (a) and this practice ought to be continued.

Per curiam,

Motion dismissed.

Friday, Feb.

16th.

The possessory and peti

tory actions cannot be joined, and the vi

TREPANIER against DUPUIS.

THE plaintiff, by his declaration, set forth his

title to a certain lot of land, alleging that he

ce is not cured had been the proprietor and possessor thereof, since

by consent parties.

the 4th of March, 1805, and that the defendant had, within the year preceding the action, and at different times before, committed divers trespasses thereon, by cutting down the trees, and erecting a log house and saw-mill, on the said land, and concluding that by the judgment of the Court it should be adjudged, ordered and declared, -First, that he the plaintiff, is the proprietor of the said lot of land; secondly, that the defendant be forbidden in future to disturb the plaintiff in his possession;-thirdly, that the defendant do remove the said log house and mill; and lastly, that he be condemned to pay damages by reason of the trespass, &c.

To this action a plea was filed by the defendant, taking issue as well upon the title to the land, as upon the alleged trespass; and the parties were this day heard en droit upon the issues raised by the pleadings.

Vanfelson, for the plaintiff.

The Advocate General and Taschereau, for the defendant,

SEWELL, Ch. J. The declaration in this case has

blended the possessory and petitory actions together. 1810. The plaintiff proceeds upon his possession, and takes TREPANIER the usual conclusions of the action en complainte; DUPUIS but in the same declaration he sets forth his title,

prays judgment upon it, and that he may be declared proprietor of the soil. This is in direct violation of the Code Civile; "Les demandes en complainte,

66

ou en réintégrande ne pourront être jointes au pétitoire, ni le pétitoire poursuivi que la demande en complainte ou en réintégrande n'ait été termi

née et la condamnation parfournie et exécutée." (a) It is true, Jousse, in his commentary upon this article, has said, that, in his opinion, this prohibition extends to the Court only, and that all that is forbidden by it may be done by consent of parties. (b) But this distinction is not admitted, or even noticed by other commentators; nor is there any adjudged case in support of it; (c) and certainly, it is dangerous to hold in principle, that a rule, which the law has established upon grounds of public expediency, can be set aside, by the act of individuals.

Per Curiam,

against

All that part of the declaration and pleadings which related in any manner to the pétitoire, was declared null, and of no effect. And it was ordered that the parties proceed respectively to the adduction of the proofs of the facts, by them severally alleged upon the possessoire only.

(a) Tit. 18. Art. 5... (b) 1. Jousse, 387... (c) See 1. Pothier, 4to. 112 & IV. 458. Ravaut, 71. 1. Pigeau, 171. Serpillon, 282-283. 1. Bornier, 131. Jud. MSS.

BAKER

1810.

Friday, Feby. 19.

When at

sale of

a

proper

ty taken in ex

A

BAKER against Young and another,

and

BLACKWOOD, intervening Party,

and divers Opposants.

Writ of Vendetioni exponas having issued

com.

ecution, the manding the Sheriff to sell certain real properby the Sheriff, ty of the defendants, which had been by him pre

sale is stopped

the last and

at that period,

highest bidder, viously seized, and taken in execution, under a does not beco- writ of Fieri Facias, sued out by the plaintiff against aved the defendants, on a judgment recovered in this

me

dicataire of, or acquire any

perty put up,

Sherift may

right to the pro- cause, he, in the usual manner, advertised the proalthough the perty so seized for sale, and gave notice that the have acted ille- same would be sold and adjudged to the highest gally in discontinuing the sale. bidder on Monday the 14th of August, 1809. On be any sale un- the 2nd of October following the Sheriff returned,

Nor can there

less the bidding has been accepted, by the knocking down ،، of the hammer,

or some act e-،،

66

quivalent to it.
Nor can a de- ،،
fendant by op-
position stop
the sale of his
property. upon ،،
the ground that
the sum bid was ،،
not near the va-
lue of the pre- ،،
misses, unless
the plaintiff &

posants à fin de

That in obedience to the said writ of Venditioni exponas, he had after complying with the formalities required by law, proceeded on the said 14th of August last, in the usual manner, to the sale of the said real property of the defendants, commonly called the Distillery at Beauport, but that the same not having produced, as alleged by the

defendants, near its value, three thousand and

the several op- fifty pounds having been offered on the part of "John Blackwood Esqr. as the third, last and highest bidder, the adjudication had not taken

conserver con

sent thereto.

66

place, by reason of an opposition on the part of "the said defendants, consented to by the plaintiff's Attorney." The opposition of the defendants was at the same time returned and filed by the Sheriff, in which they allege for grounds of opposition as follows, "Parce que la valeur du dit lot seroit considérable, et que l'adjudication faite, faute de la concurrence d'un nombre suffisant d'enchérisseurs, tendroit à la ruine des opposants et affecteroit essentiellement les intérêts de leurs créanciers, qu'il est de leur intérêt que le dit lot soit adjugé à sa " valeur