1810.

BAKER against YOUNG and another. and

BLACKWOOD
Intervg.

The case stood over until the day for the opinion of the Court which was now delivered as follows:

SEWELL, Ch. J. Upon a Fi. Fa. the Sheriff in this cause takes in execution, at the suit of the plaintiff Baker, a valuable distillery, and other immovable property, belonging to the defendants, situate at Beauport in this District, he proceeds to the sale in the usual manner upon a Ven. Ex. and there are three bidders, of which the last is Blackwood, the intervening party, but his bidding being no more than £3050, the defendants oppose the sale, or rather the adjudication, (with the plaintiff's consent,) upon the ground that the price offered is very greatly below the fair value of the premisses. This opposition the Sheriff admits, discontinues the sale, and makes a special return of his proceedings, in which he states, "That the adjudication did not take place by reason of the defendants opposition." Upon this return Blackwood has filed a petition in Intervention, by which he prays, that the property may be declared to be his, and that the Sheriff may be ordered to execute a title in his favor. The prayer of this Petition is the matter in dispute.

On the part of Blackwood, it is contended, that the opposition of the defendants was and is a nullity, and that upon the face of the return it is evident that the sale was perfected, that three biddings were made, and that he, being the last and highest bidder, is the legal Adjudicataire, and so entitled to the property. On the other side, that the opposition was a legal and sufficient cause to break off the sale, that the sale was not perfected, and that Blackwood consequently is not the Adjudicataire. There are thus two questions before us, 1st. whether the opposition was or was not a sufficient cause to stay the proceedings? and if it was not, then, 2dly whether Blackwood be or be not the Adjudicataire of the property ?

All oppositions to a sale by decret must be made before before it commences; (a) and so extensively true is this principle, that where the sale has once begun even satisfaction of the execution, by the payment YOUNG and of debt and costs, is held not to be a sufficient cause to stay the sale, if there be any oppositions a fin de conserver. (b) Upon this ground, and upon the ground that the want of a sufficient consideration, (la vilité du prix) cannot in any instance impeach

1810.

BAKER against another. and BLACKWOOD Intervg.

an adjudication, (c) I am clearly of opinion that

the opposition, or rather the protest of the defendant, was not a legal cause to stay the proceedings, and that the Sheriff was not bound to notice it, notwithstanding the plaintiff's consent, the plaintiff being but one among many creditors who were equally parties to the suit, by oppositions a fin de conserver, whose consent to stay the proceedings was at least equally necessary, and was not given.

The inquiry is thus reduced to the single question, whether Blackwood, under all the circumstances, can legally be held to be the Adjudicataire? and I think he cannot. The manner in which the Sheriff is to make Sale of immoveable property, taken in execution, is not at all prescribed by the Ord. 17. Geo. 3. c. 2. or 25 Geo. 3. c. 2. but by universal con. struction, it has been held, in all the courts of the province, that these statutes intended a sale by licitation, as was practised before the conquest, a vente publique by bidding in the course of a common auction; it follows then, that the last and highest bidder must be the purchaser, for that is the principle of all such sales, but it follows also, that the highest bidder cannot be ascertained, until the close of the sale; and this of itself implies the necessity of some formal intimation of that close. The Sheriff is intrusted to make the sale, and no time is prescribed by law within which it must be terminated; (a) Ord. 25 Geo, 3. c. 2. s. 10.. (b) L. C. Denizart, V. 5. p. 690. No. 4. (c) Ib. V. 6. p. 57. Ar. 6. Jud. M. S. S.

VOL. I.

C

the

1810.

BAKER against

another. and BLACKWOOD Intervg.

the duration therefore of the sale is thus left to his discretion, and it cannot be closed without his assent; YOUNG and the property also, which is sold by the Sheriff, (or rather of which he makes sale,) is not transferred by him to the purchaser, (for it is neither equitably nor legally his,) but by the acts which he is directed and empowered to perform; among which is the act of licitation, which must, as well as the rest, be complete, and therefore must be perfected by the usual method of terminating the period for bidding, by the fall of the hammer, or by some act equivalent to it, by which, (to that intent) the assent of him who makes the sale is declared. In point of fact then, it is impossible to say, who is the last and highest bidder at such a sale, before it is closed, and if it is interrupted, and not resumed, the last bidder at the moment of such interruption, cannot legally be said to be the Adjudicataire, as it is impossible to say who would have been the last and highest bidder, if the sale had continued. For these reasons, it being clear that the sale in this case was not closed, I am of opinion that the intervening party Blackwood is not the Adjudicataire, and that this Petition must therefore be dismissed.

WILLIAMS, J. I concur entirely in the opinion given by the Chief Justice. The Provincial Ordinance declares, that the sale by the Sheriff shall have the force and effect of the decret, under the french law; but in this case there has been no sale; if the Sheriff has done wrong the parties must look to him. It is to be lamented the ordinance does not go the length to authorise the Sheriff to postpone the sale, but it is wholly silent on that point.

KERR, J. The question, submitted to our decision by the petition and answer, lies in a very narrow compass; if there was a sale by the Sheriff, the prayer of the petition must be granted; if not, it must be dismissed. When the petition was first present sented, I was of opinion it should not be received, as the return of the writ of Ven. Ex. has not stated, that any sale had been made; I then thought we YOUNG and could grant the petitioner no relief, and this proceeding therefore ought not to be grafted on the original Intervg. cause; I am not now induced to alter my opinion. By the Sheriff's return, it appears the property ne

1810.

BAKER against

another. and BLACKWOOD

ver was adjudged at all, it is a solecism in language to say that there was a sale, when the lot never was knocked down and adjuged; the knocking down of the hammer is a ceremony used in all public sales by

auction, it is this symbol which publicly declares
who is the highest bidder, and that the property is
transferred from the seller to the buyer. It has been
contended that the Sheriff engaged in his public ad-
vertisement to sell to the highest bidder, and that
the petitioner being such, he was bound to knock
down the lot to him, and this is urged as a ground
for our decree to convey the property to the Peti-
tioner, on the payment of the highest price offered;
but because the officer of this Court has not, in all
things, acted in obedience to the writ of execution,
is this a reason for the court to order a sale to take
effect, when there was no sale? It is a fallacy to say
that the petitioner was the highest bidder, he was so
in one sense, and not in another, he was the highest
bidder at the moment the sale was suspended, not at
the time it was completed, for the solemnity never
took piace, by which the seller's assent to the sale
was inade manifest; how does the court know that
£3050, was the summum pretium that would have
been given, if the sale had been kept open? If the
opposition had not been given to the Sheriff, and
the sale had gone on for a minute longer, the pro-
perty might have produced, a much larger sum. It
is impossible on any grounds of law or of justice to
the many persons interested in this suit that the pray-
er of this petition can be granted.

Petition in intervention dismissed with costs.
GUAY

C2

GUAY against HUNTERS.

HE declaration, in this cause, contained two counts, the first, setting forth, that the defendindebted to the plaintiff, in the sum of

special agree- ants were

ment, for the

transported,

transportation 25, for the freight of 109 barrels of pot-ash, bearhad been longing to the defendants and brought from St. delipered, and Roc to Quebec, in the plaintiff's schooner, in the edt again leadh month of May last, and delivered to, and accepted quantum meru-by, the defendants at Quebec; in consideration of

accepted,

action on a

an

it for freight

earned, upon which, the defendants undertook and promised to

such part SO

delivered and pay &c. The second count, quantum meruit.

accepted, The

stitute a cross demande,

party must in- The defence set up to this action by the defendseparate action ants, was, that by a written agreement entered infor such dama- to between the parties, the plaintiff had engaged to

ges.

go down with his vessel to St. Roc, and there take on board 164 barrels and 5 puncheons of pot-ash and bring and deliver the same to the defendants at Quebec, for which, he was to be paid by the defendants twenty-five pounds. That the plaintiff did not take on board his said vessel, or bring up to Quebec, the quantity of barrels stipulated in the said agreement; but had only brought up and delivered to the defendants, 109 barrels, whereby the defendants had suffered damage to the amount of £17:5: and that the defendants had already paid £5. to the plaintiff on account, so that there was now due to him the sum of £2:10. only which the defendants tendered and deposited in Court.

At the enquête, it was proved on the part of the plaintiff, that he did in fact bring up and deliver to the defendants, at Quebec, the quantity of 109 barrels of Pot Ash, which were received by the defendants. On the part of the defendants, the written agreement entered into by the parties, the non-performance thereof by the plaintiff, and the expence the defendents had incurred in procuring another vessel to bring up the Pot Ash left by the plaintiff

at