1901. RITZ V. SCHMIDT. Before KILLAM, C.J., BAIN and RICHARDS, JJ. Retroactive legislation - Construction of statutes - King's Bench Rule 807 (a) added to the King's Bench Act by 60 Vic., c. 4, is re- ARGUED: 7th February, 1901. DECIDED: 6th May, 1901. APPEAL from a judgment in favor of the plaintiffs in Statement. an action for the recovery of the possession of land. The plaintiffs claimed title as the purchasers under an order of this Court for the sale of the land to satisfy a judgment recovered in a County Court. The case came before the Full Court on an appeal from a judgment of Sir Thomas W. Taylor, C. J., overruling a demurrer to the statement of claim: reported sub. nom. Ritz v. Froese, 12 M. R. 346. The majority of the Court were of opinion that, as it did not sufficiently appear that the order for the sale had been made upon a summary application, without action, under Rule 803 or 804, this should not be assumed as against an order of a superior Court. Dubuc, J., was of opinion that, even if this did appear, the order could not be treated as a nullity, and also that the proceedings were made valid by the Act, 60 Vic., c. 4. The action went to trial upon written admis 1901. sions of fact before Dubuc, J., who gave judgment for Argument. the plaintiffs. Hugh Phillips for defendant Froese. The questions are (1) whether this Court had jurisdiction to make the order for sale; (2) whether the subsequent statute validated the proceedings; (3) whether defendant is estopped from setting up want of jurisdiction; Proctor v. Parker, 11 M. R. 485, shows want of jurisdiction, see also Ritz v. Froese, 12 M.R. 352. The proceedings were not made valid by the Act, 60 Vic., c. 4. That Act should not be construed as retroactive. Before the Queen's Bench Act, 1895, was passed there could have been only an action to enforce the lien. As to the retroactive effect of the statute: In re Roden and City of Toronto, 25 A. R. 12. See remarks of Lord Blackburn in Gardner v. Lucas, 3 A. C. 603; O'Brien v. Cogswell, 17 S. C. R. 425; Auffmordt v. Rasin, 102 U. S. R. 622; Maxwell on Statutes, 298. If order validated, the proceedings thereon are not: Ryan v. Whelan, 6 M.R. 565; 20 S.C.R. 70. The words "orders and judgments" refer to orders and judgments of the County Court. Identical words are used in Rules 803 and 804, and should receive uniform construction in all rules alike: see the validating Act, 47 Vic., c. 8, (M. 1884) for language employed by Legislature when intention to ratify exists. Present amendment does not purport to validate. As to In re Padstow Total Loss Assur. Association, 20 Ch. D. 137, this only shows that where the facts before the Court warrant making the order, the order must be appealed against. As to whether such an order is a nullity: Holmes v. Russell, 9 Dowl. 487. Jurisdiction cannot be given by waiver: Queen v. Smith, 7 P. R. 429. Estoppel by conduct can arise in two ways, actively or passively; actively when something is done to make that apparent which is in reality not so; passively when something is permitted to be done having like effect, but only where there is an im- 1901. perative duty to speak. There was no duty on Froese to Argument. assert that the proceedings were unauthorized or to seek out plaintiffs: Bigelow on Estoppel, 5th ed. 595; Ewart on Estoppel, 89. The rule caveat emptor applies to judicial sales: Rorer on Judicial Sales, 199, 312. As to In re Padstow, the Court had jurisdiction to determine whether the Company was within the Act. And the facts as there laid before the Court justifying that finding, the order was appealable; in this case facts as they appeared showed in themselves that the judgment was of the County Court and therefore there was no jurisdiction. There is no inherent jurisdiction in this Court to sell land: In re Bowling, [1895] 1 Ch. 671; Ency. of Laws of England, vol. 12, p. 441. Without the rules in The Queen's Bench Act, 1895, the Court had first to try in an action whether there was in fact a lien and then decree a sale. As to retrospective Acts: Evans v. Williams, 2 Dr. & Sm. 324. As to order being a nullity: Smith v. Sandys, 5 Nev. & M. 59. Jurisdiction cannot be given by standing by: Foster v. Usherwood, 26 W. R. 91; Buse v. Roper, 41 L. T. 457; Rorer on Judicial Sales, 205. There must be jurisdiction to make the order in order to warrant the sale. The J. Stewart Tupper, K. C., for the plaintiffs. plaintiffs submit that "orders and judgments" referred to in the second clause of Rule 807 (a) refer to orders and judgments theretofore made or entered by the Court in cases of County Court judgments pursuant to Rules 803-807, and that this clause was embodied in the Rule for the purpose of validating all such "orders and judg ments except where they had been attacked before the amendment was passed. This construction was placed upon the statute by Taylor, C. J., when this case came before him on demurrer, (see copy of his judgment at end The 1901. of this case) and by Dubuc, J., in 12 M. R. 349. Argument. history of the legislation is an answer to the defendant's contention that "orders and judgments" only include County Court orders and judgments made or entered in the County Court before the passing of the amendment. Orders for the sale of land in the case of County Court judgments were made under Rules 803-807 of The Queen's Bench Act until Proctor v. Parker, 11 M.R. 487, decided on the 27th of February, 1897, that these Rules did not apply to County Court judgments, and almost immediately thereafter chapter 4 of 60 Vic. was passed and assented to on the 30th of March, 1897, containing the amendment in question. The statute being one respecting procedure was retroactive, and the first clause of Rule 807 (a) clearly gave the Court jurisdiction to make crders in the case of County Court judgments entered prior to its passage as well as in the case of those thereafter entered: Gardner v. Lucas, 3 A. C. 603. If the Legislature intended to do nothing more than this, as the defendant contends, the rest of the rule was entirely unnecessary. If anything further be necessary to answer the construction urged by the defendant it is found in the exception "when such orders or judgments have been attacked before the passing of this amendment." The defendant admits that the Legislature intended to give the Court jurisdiction to make orders for sale in the case of County Court judgments, not only thereafter entered but theretofore entered, but he is unable to suggest any reason why the fact that a County Court judgment theretofore entered had been unsuccessfully attacked should prevent the holder from having the advantage of the legislation. Reading the clause, however, according to the contention of the plaintiffs the exception creates no difficulty as it would be only right to except from its operation any orders made by the Court of Queen's Bench which had been attacked. Then the orders referred to in section 1901. 803 are orders, certificates of which can be registered and there are no orders in the County Court on which a sale Argument. can be based which can be registered: County Court Act, R. S. M., c. 33, s. 196. It is submitted that even if the Court had no jurisdiction to make the order for a sale in question, being a Superior Court having jurisdiction to make orders for sale of lands on County Court as well as Queen's Bench judgments the order made herein was not void as against the parties to it, and the defendant is estopped by not appealing therefrom. The Queen's Bench Act, 1895, empowered the Court to make orders for sale in the case of Queen's Bench judgments, under the summary procedure set forth in Rules 803-807, and when the order for sale in question was made on 12th March, 1896, the Court had also power to make orders for the sale of land in the case of County Court judg ments upon a statement of claim filed in the usual way. The Court did not therefore in this case assume a jurisdiction which it did not possess and the order for sale made herein could only be got rid of by an appeal therefrom or an application to set it aside: In re Padstow, 20 Ch. D. 142-145; In re Bowling & Welby's Contract, [1895] 1 Ch. D. 663, 557, 671, 673; Ritz v. Froese, 12 M. R. 347-349. Moreover the defendant is estopped by not appealing from the order dismissing the application. made by him on the 9th of February, 1899, to set aside the order of the 12th March, 1896, and all subsequent proceedings or for leave to appeal therefrom. KILLAM, C. J.-I understand the admissions used at the trial to mean that the order for sale was made upon a summary application, without action. They were so treated upon the argument of this appeal. On its face the order was for a sale to satisfy a judgment of a County Court recovered on the 6th December, 1895. There could not, then, have been any adjudica |