(Petitioner en
APPELLANT; nullitd de dicret) ...........................
*Mar AND
*June 24. ADOLPHE Vt]RONNEAU (Defendant)
the judgment of the Superior Court of the 28th November, 1874.
" Fournier J. On the 30th June, 1876, the requele civile was dismissed by the Superior Court.
On the 8th July, 1876, the then attorney of the plaintiff taxed ex parte his bill of costs upon the contestation of the said requ6te civile and upon the back of the said bill asked for a fiat for a writ of venditioni exponas returnable on the 7th September, 1876, addressed to the sheriff of Bedford. This writ was issued by the prothonotary without any order of the court. After two notices in the Official Gazette and one publication at the church door of St. Val6rien de Milton, the parish in which the appellant's property is situate, the said property was sold by the sheriff, and adjudicated to the plaintiff, Narcisse Bolduc, on the 17th August, 1876, for $55, which sum was insufficient to cover the sheriffs costs.
On the 23rd February following the appellant presented to the Superior Court a petition en nullit de dicret to have the sale of his property declared null and illegal for the following reasons :
Because no notice of the said sale had been given to him.
Because the said writ of venditioni exponas was irregular, illegal and null and did not state what notices the sheriff should give before proceeding to the sale.
3. Because the said sale had been made before the expiration of the delay fixed by law, and without the notices and publications mentioned.
4. Because the said sale was tainted with fraud and fraudulent acts on the part of the plaintiff and, to his knowledge, to prevent the making of bids.
Because the proceedings adopted to arrive at the dicret and at the sale and adjudication of the said property are irregular, null, illegal and void.
The only grounds relied on by the appellant in J. this court in support of his demand for nullity, are the following:
1. The premature issue of the writ of venditioni exponas, for an amount including costs, which were not yet due and which had not yet been regularly taxed. The said writ was issued by the prothonotary without an order of the court; no notice of the issue of the said writ or of the sale, had been given to the appellant. Being of the opinion that the issuing of the writ of venditioni exponas by the prothonotary without an order of the court or judge is a sufficient ground for the decision of this case I need only deal with that point.
It is evident that the Code of Procedure has not placed the issuing of this writ upon the same footing as ordinary writs of summons, of execution and others. With regard to the latter the prothonotary is specially authorized to issue them.
Art. 44 C. P. C. says:- "Writs of summons are issued by the prothonotary, upon the written requisition of the plaintiff."
Art. 46. "They are attested and signed by the prothonotary." Art. 222. " Parties are summoned to answer interrogatories upon articulated facts, by means of a process issued in the name of the sovereign by the prothonotary." By art. 545 the writ of execution is attested and signed in the same manner as original writs, and must bear the seal of the court. Art. 633. " The seizure of immoveables can only be made in virtue of a writ, clothed with the same formalities as writs of execution against movables,"
In the case of all the above mentioned writs the authority to issue them is given specially to the prothonotary. With respect to the writ of venditioni exponas no such authority is given to him.
In the present case the day fixed the sale of the immovables of the appellant by the notices given under the writ de terris, and the day upon which it was returnable, having passed the said writ had lapsed. The sheriff could not proceed further and the prothonotary, there being no provision in the code to that effect, had no power to decree the sale of the property. To the court alone then belongs the power of ordering the sale under a writ of venditioni exponas, in accordance with articles 653, 662 and 663 of the Code of Procedure.
Art. 653 obliges the sheriff, notwithstanding any opposition to the seizure (here requete civile) or sale immovables or rents, to continue the publication above prescribed, but he cannot in such case proceed with the sale without an order from the court. In the present case the requete civile had the same effect as an opposition, and the sheriff continued his publications as he had been authorized to do. But the writ having lapsed he could not, as that article says, proceed with the sale without an order from the court. These positive words show clearly that an order for the sale can only be given by the court and not by the prothonotary. The sheriff's duty was then governed by art. 662 which provides that when oppositions have not been decided until after the day fixed for the sale he can only proceed to sell under a writ of venditioni exponas and in accordance with the conditions therein contained.
Art. 663 also shows the necessity for the order of the court for the issue of the writ of venditioni exponas by declaring that this writ shall " contain, moreover, such other conditions as the court has directed respecting the sale of the immovable or the rent." It is evident then that the order to issue this writ must be asked the court, and that the court alone can grant it, since the writ must contain the conditions upon which the judge may think proper to order the sale.
These several provisions of the code of civil pro- J. cedure clearly establish that the court alone has power to order a writ of venditioni exponas to issue, as has been decided in the Court of Queen's Bench at Montreal in the case of Bissonnette v. Laurent
This decision was followed in the case of the Trust 4 Loan Co. v. Monbleau
The respondent has contended that the appellant could not invoke this jurisprudence because it was adopted some time after his petition nuliild de dicret. But this jurisprudence is nothing else than the law itself, and settles nothing but what was already contained in the articles of the Code of Civil Procedure. There has been no change in the law in force at that time, and why should we be now asked to apply to this case an irregular practice, and one which is contrary to the text of the law ? To support this contention it is pretended that the appellant should have specially alleged this ground in his petition en nullitd. This ground was one of law, and the want of an order of the judge to issue the writ, appearing on the face of the record, is sufficiently alleged twice, viz.: in the 2nd and 5th reasons in his petition en nullit6 de dicret. In the 2nd he alleges that the writ of venditioni exponas is illegal, irregular, null and void; and in the 5th he alleges that all the proceedings adopted to arrive at the sale and adjudication of his property are irregular, illegal, null and void. There are, moreover, a number of other allegations complaining of the nullity of the writ upon which the court below ought to have pronounced judgment. But the court seems to have considered the irregular and erroneous practice relied upon by respondent, as having the force of a law.
We cannot admit that any practice, even long established but which is contrary to law, should be followed even when it has been sanctioned by a judicial decision. The duty of a judge is to disregard such a practice and to be guided solely by the text of the law.
For these reasons I am of opinion that the writ of venditioni exponas in virtue of which the appellant's property was sold is null and void, and therefore that the appeal in this case should be allowed with costs.
J.-I am of opinion that the appeal should be dismissed for the reasons given by the court below.
GWYNNE J. was also of opinion that the appeal should be dismissed for the reasons given by the court below.
J. concurred with Fournier J.
Appeal allowed with costs