payé, de marchandise privilegiée, vendue en gros et en détail, autre que de Marchand à Marchand. Deffenses aux dits Sieurs Auditeurs et Consuls de prononcer par cassation de jugemens rendus, ainsi déferer aux Appellations aux cas des Edits." 1810. IN OAKLEY against MORROUGH and DUNN. Wednesday, Feb. 14th. Whether in a se, a party can, isting law of Canada, exa N this case, the plaintiff, on the 1st. day of term, obtained the permission of the court, to examine commercial cathe defendants upon interrogatories on faits et arti- under the excles, and the defendants being ordered to attend on mine his adverthe 8th. for that purpose, the defendant Dunn ap-articles? peared and declined answering the interrogatories. On the 13th, the case being called, Stuart, for the plaintiff, moved that the faits et articles should be taken pro confesso, when The Advocate General, for the defendant Dunn, opposed the motion, stating, as the ground of the objection to answer, on the part of Dunn, that the Prov. Ord. 25 Geo. 3. c. 2. s. 10. which declares, "that in proof of all facts, concerning commercial "matters, recourse shall be had to the rules of evi"dence laid down by the laws of England," had done away, in commercial cases, the right, which, previous to the passing of that Ordinance, a party had, in all cases by the ancient law of the country, to examine his adversary on faits et articles. That the Ordinance having introduced the English rules of evidence, generally, in all commercial cases, of which description this action was, the plaintiff could only proceed according to those rules, which did not admit of any such examination as that for which the plaintiff now contended. Stuart, for the plaintiff, observed, that in commercial cases the construction given to the 10th section of the Ordinance, relied on by the defendant, sary on faits et 1810. OAKLEY against and DUNN. had always been, that an examination upon faits et articles was admissible, and this had been constantMORROUGH ly recognized in practice; without it, justice could not be administered in this country, as it was the only manner in which a party could obtain the benefit of an examination of his opponent; the right to which was recognized and allowed by the practice and common law of the whole world. That the Ordinance had introduced the English rules of evidence in commercial cases, to which, such an examination as that contended for, was known; the only difference, here and in England, was in the mode of obtaining it; in England, the party must file his bill in Chancery, but here, he may file interrogatories. He said, there could be no doubt that the powers and functions of the Courts in England, as making one entire system, were all vested in the Court of King's Bench in Canada, it being the only court in the country to which a plaintiff could have recourse. Wednesday, Feb. 14th. The case stood over untill this day, when the defendant Dunn declared he was ready to answer the interrogatories, and he was examined by consent. The point was not therefore decided by the court, but they intimated their opinion so strongly, that the objection urged in this case by the defendant has not since been raised, and the parties in several instances have been examined on faits et articles in commercial cases. A BOGLE and others against CHINIC. and PROUX and BONENFANT, Opposants. Writ of Fieri Facias having issued in this cause against the moveable and immoveable property by the Sheriff, of the defendant; on the 8th instant the Sheriff re cannot, by op position afin de charge, claim turned that he had seized and advertised for sale, that the pro perty should be according to law, the lands and tenements of the sold subject to the unexpired defendant, since which he had received, on the part term of his lease. of of François Proux and Vincent Bonenfant, the opposition à fin de charge annexed to his return. 1810. BOGLE and others against CHINIC and PROUX and Op. It appeared by the return of the Sheriff, the opposition annexed, and the papers filed by the oppo- BONENFANT, sants, that a dwelling house and a lot of land belonging to the defendants, in the lower town of Quebec, had been seized and taken in execution, at the suit of the plaintiff, the lower part of which house had been, by the defendant, on the 1st. of September 1809, by a notarial instrument or acte, leased to the opposants Proux and Bonenfant, for the term of four years, from the 1st of May, 1810, at the yearly rent of sixty pounds, under this special covenant, that the lessor should maintain the lessees in the quiet and peaceable possession of the premisses leased, notwithstanding any sale thereof that might be made by the defendant; under the penalty of all costs, damages, &c. under this lease therefore, Proux and Bonenfant opposed the sale, to be made by the Sheriff, of the said house and lot, unless the same were sold, subject to their lease, and the purchaser bound to permit them to hold and enjoy the lower part of the said house, as leased to them, during the remainder of the said term of four years. The parties being at issue were now heard, Berthelot, for the opposants, Bowen, for the plaintiffs, who cited Praticien Frangois, by Lange, 1. V. 330. 2. Pothier, 4to. 271. Louage, No. 285. SEWELL, Ch. J. It is the right, prima facie, of an Adjudicataire by decrêt, to put out a lessee of the former proprietor, if he finds one in the possession of the property which he has purchased. (a) The (a) 1. Pigeau, 753. 774. 1. Lange 330...L. C. Denizart, Vol. III. p. 37. No. 15 & 16...Jud. MSS. B 3 opposants 1810. BOGLE and others. against CHINIC PROUX and 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 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. Op. Friday, Feb. No motion, for an order to resell real property at the folle enchere of the adjudicatai Per Curiam, THE Let the opposition be dismissed with costs. BAKER against YOUNG and another. and Several Opposants. HE plaintiff sued out execution against the defendants, upon a judgment recovered in this re, can be 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 granted, unless 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 pur"chaser or Adjudicataire of any real property seiz"ed and sold by the Sheriff, shall refuse or neglect "to pay the amount of his said purchase, in con 66 formity 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 " said 66 "said real property at the folle enchere or costs and charges of the said purchaser or Adjudicaire." 66 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 1810. BAKER against YOUNG and others. |