The enquirer. [volume] (Richmond, Va.) 1804-1815, 1805-12-19

tun compared with the value of the lands, til,
marhhaI ought not to have fct them I'D. That
II was imconftent with his duty to facri6cc an
citate to be fold under the order of a court oil
chancery--an event which might with certainty
be predicted from the circumftaucc which has
been Gated. A public fale it has been faid inn.
plies the attendance Of feveral purchafers: aud
the want Of fuch attendance is the want of a
circum&ance which is efential to the thing IL
felf.
On the other hand It is commended, that the
oHlcer was bound by the terms Of the decree 10
Tell at all events if he could raife the money,
and that he would have become refponfible to
the creditor had he failed to do 70.
Perhaps on neither fde has the principle been
exactly laid down, and perhaps no precife line
FOR the conduct of any officer under fuch cir-
cumftances can be marked ont. In executing
a decree, the part of the officer is miniR .rial
10 far as the proviions of the decree extend.
out on points not exprefieG NJ may exercife
tome d,tcretion. That difcrction however,
mutt be imited--for If he fhould 70 exercife it
as to defeat the decree, ar unreafmably to de.
LAY ITS execution, his conduct will be cuipable.
On the time of faie the decree certainly leaves
tometNlug to the judgment of the Martial. In
ms cafe the time and place may he fixed by
him. After having fixed them he ought not
lightly to change them; but certainly circum-
frances may exit which would iuRify his doing
To-. IT byextreme bad weather or by any other
caiuaity, It thould become apparent that the
iaie could not be made without great and real
INJURY, and there WAS ground for the opinion
that . poftponement of the fale would enable
the ofiicerto make it within reafnnabIe time at
a iair price, 1 hould be furprifed to find the
of1cer arraigned for ~aifcntine to fuch a pot
ponement. Upon this fubie9 then the Mar
'hai may exercife fome difcretion, but it is a
4 UltCrPttnn ALL -,
exercIie OF it he determines to fell, although
the determination may be a hard one, the pur.
chaier acquires rights which ought not lightly
to be taken away. He ought alto to ~recol,es
that when an opinion prevails that a fale will
nor be made, every pofponemcnt not pro-
dnced by caufes which are obvious, will pro-
badly ftreng.hen that opinion, and dimininl the
number OF bidders who will afterwards appear.
i ne mutation of an officer would not be free
from hazard it, without good r~eafon, he fhould
decline telling at the time originally appointed
ana iho';ld afterwards find himfrlf unable to
make the fale.
In the cafe before the court. the property for
Tale may be confidcred as certainly worth
$4,000 dolls. aIthough-it had fold at 10000 and
tue othcer had reafon to be af1ured that II
would Tell at not much more than $4,000. This
was certainly a great facriice, and it ought
not to have been made if the fate of thing
was produced clearly by a cafuaity, the recnr-
renee OF whlch there was no ftrong reafon to
expect. -
The plaintiffs council afign A cauGe for tb;,
fate of things which, if true, ought certainly
! to. have had comfortable influence on the con.
duct OF the Martial. They fay that il is to he
.at:ribed to Mr.. Rofs himfeif, and that there
was no ground for the hope of its removal
Some tefimony has been produced 70 prove
a common opinion that Mr.. Rofs pofTe fed in.
cination and address to prerent the fales en-.
tirely, or to annul them If made. So far a.
this opinion was founded on the defendent,
co"tfovertIng the fales made at the Eagle
winch were formerly difcuiTed In this court,
l do not think 1t ought to iriure him {: becaufe'
whether thofc fales would have been fet ahde
or affirmed, there was certainly reafonable
ground for cont; aipg them. and no mar oueh,
10 iuher Tor appealing to the laws of his
coAntry where he has funained an injury
which he believes they will redrefs.
But this being reprefented to be the genera
opinion entertained of the defendent, il was
probably not unknown to him and if known
he mutt have ~forefeen the confequences of fucf
All OPINION, and ought, in common procedure,
ana would II nc had really d~efgned to carry
J The decree into full and fair effect, have taker
the proper meafures to preveat thofs conf ouen.
ces. lie would have given aGurances that theft
approximations were ill founded, and would have
taken Tome pains to induce the attendance OF
bidders. Not only has this been omitted, bu,
every itep taken by Mr.. Rofs, has at Leaf the
appearance OF an intention to prevent fuch a
competition for this property asst was the in.
tereft oil the reditor to obtain. The circum.
itances which produce this opinion hall be
briefly fated. ~
Mr.. Rois has omitted the ufe of all thoGe
means to draw purchafers to the fale which
were not prefcribed in the decree, but which
were in his power, and which a man of com.
mon prudence being about to difpofc of pro.
Perty, the fale of which he knew would be diff
hcult' would uuquetionably employ.
He has chofen a place of fale which was p,r.
ticu!ar'y well calculated to favor the purchaGt
OF the property at a low rate. fay he has no.
len the place, becaufe when the fame property
was offered for ,fale at the Eagle tavern. the
place conftitHted one of his objections. He in.
hfed then that the faIe ought to have been made
on the premiies ; and having never exprened
4 contrary opinion, and having concurred in
the Advertisement which changed the place 10
that he had declared to be the proper one, the
place mutt be conidered as chofen by him.
AT his %inftance, the land was on both occaG.
ons fold entire and not in parcels. II will he
readily admitted that in cafes of real competi.
ton among bidders, defrous of purchafng t,>
property for ufe, and not for fpecuiatiop, the
iron works, with the lands auoerta;ning IN them