1901. tion of facts giving jurisdiction, and the case of In re Judgment. Padstow Total Loss and Collision Assurance AssociaKILLAM, C.J. tion, 20 Ch. D. 137, does not apply. For the reasons

given in the report of the appeal upon the demurrer, I am of opinion that the Court had no jurisdiction to make the order when it was made, and that the order and subsequent proceedings were nullities when they were made

and taken.

By the Act, 60 Vic., c. 4, (M. 1897), the following sub-section was added to Rule 807 of The Queen's Bench Act, 1895: “In the case of a County Court judgment, an application may be made under Rule 803 or Rule 804, as the case may be. This amendment shall apply to orders and judgments heretofore made or entered, except in cases where such orders or judgments have been attacked before the passing of this amendment.” This enactment came into force on the 30th March, 1897, after the completion of all the proceedings upon which the plaintiffs rely for title.

Under the British system of parliamentary government the Legislature is supremo and it may effectively legislate a man's property from him, without any compensation, and vest it in another. But, of course, the law presumes against any such intention. New laws affecting property and civil rights are presumed to be intended to operate prospectively and not retrospectively. As was said by Sir R. T. Kindersley, V.C., in Evans v. Williams, 3 De G. & Sm. 324, "I think it is a broad principle of construction that unless the Court sees a clear indication of intention in an Act of Parliament to legislate ex post facio, and to give to the Act the effect of depriving a man of a right which belonged to him at the time of the passing of the Act, the Court will not give to the Act a retrospective operation."

The prima facie presumption must, however, yield to a sufficiently clear indication of intention to produce a re

1901.

trospective effect. In Main v. Stark, 15 A. C. 384, Lord Selborne, delivering the judgment of the Judicial Com- Judgment. mittee of the Privy Council, said, "Their Lordships, of KILLAM, C. J. course, do not say that there might not be something in the context of an Act of Parliament, or to be collected from its language, which might give to words primâ facie prospective a larger operation; but they ought not to receive a larger operation unless you find some reason for giving it." And in Pardo v. Bingham, L. R. 4 Ch. 735 Lord Hatherley, L. C., said, "Now, in the very case of Moon v. Durden, 2 Ex. 23, Baron Parke did not consider it an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed, and said that the question in each case was whether the Legislature had sufficiently expressed an intention. In fact, we must look to the general scope and purview of the statute and at the remedy sought to be applied and consider what was the former state of the law and what it was that the Legislature contemplated."

The enactment now in question was, on its face, applicable to orders and judgments theretofore made or entered. For the defendants it is argued that the only effect of this was to give a right to apply to the Court of Queen's Bench in futuro for a sale of land to satisfy prior existing judgments of a County Court. This construction would give no effect to the word "orders," as the Rules 803 and 804 gave power to proceed only upon registered judgments and orders and there was no provision for the registration of an order of a County Court. It was also argued that, while prior orders for sale might be intended to be made valid, the effect of the legislation should be strictly confined to the orders for sale and should not be held to confirm the proceedings upon such orders. If the enactment merely declared the orders to

1901. be valid and binding, it might be possible to construe this Judgment. as meaning that they were to be considered as valid and KILLAM, C.J. binding only from the date of the enactment and still in

sufficient to support prior sales made under them. Such, however, does not seem to me to be the effect of the statute. The clause provides that, in the case of a County Court judgment, an application may be made under Rule 803 or 804, and then that this amendment is to apply to prior orders. The legislation is very illexpressed. The only meaning that I can draw from it is that it is a retrospective enactment, giving power to make the applications for the prior orders when they were made. The effect of this must be to validate the orders from the time of their being made and, therefore, the proceedings taken under them.

I have come to this conclusion most unwillingly, and if any other construction seemed reasonably open I would have preferred to see it adopted. ·

There is no doubt that orders of the kind had been made and were deemed valid until objection to their validity was raised in Proctor v. Parker, 11 M. R. 487. That case was argued and decided in February, 1897, and the promptness with which the Legislature intervened, in view of that decision, and its reservation as to orders previously attacked, support the construction which I feel bound to place upon the amendment.

I would dismiss the appeal, with costs.

BAIN, J.-This is an appeal by the defendant Froese from a judgment in favor of the plaintiffs for the recovery of the land mentioned in the statement of claim. It appears that on the 12th of March, 1896, an order was made by this Court declaring that the land, or the interest in it of the defendants Schmidt and Froese, was liable to be sold to satisfy a judgment that one Russell had recovered in the County Court of Emerson against the de

fendant Schmidt, and that a final order for sale was made 1901. on the 27th of October, 1896. The plaintiffs purchased Judgment. the land at the sale, and paid the purchase price therefor, BAIN, J. and on the 11th of February, 1897, an order was made

vesting the land in them. It is admitted that the defendants had notice of the proceedings under which the land was sold, that they took no steps to notify the plaintiffs of their claim to the land or of any defect in the proceedings, and that they took no steps to set aside or appeal from the first or subsequent orders until the 9th of February, 1899, when the defendant Froese made an application, that was refused, to set aside the order and the proceedings under it, or for leave to appeal.

The defendant now appeals from the judgment that has been entered in the action, on the ground that "there was no jurisdiction to make the order of the 12th of March, 1896, directing the lands in question to be sold, upon motion therefor, and that all proceedings had and taken upon the said order are null and void.”

The order of the 12th of March was made upon a motion under Rule 803. In Ritz v. Froese, 12 M. R. 364, where this defendant appealed from an order overruling his demurrer to the plaintiffs' statement of claim on this same ground of want of jurisdiction, the Court, while it dismissed the appeal on the ground that it could. not be inferred from the statement of claim that the order had been made without jurisdiction, was of the opinion that the Rules of Court, as they were at the time the order was made, did not authorize the making of an order directing the sale of land to satisfy a judgment in a County Court. Mr. Justice Dubuc, however, expressed the opinion that the defendant was not entitled to treat the order as a nullity, as he had done, but should have appealed against it, and, also, that the effect of the clause that had been added to Rule 807 by the statute 60 Vic., c. 4, had been to validate the order and the proceedings that had

1901. been taken under it. Taylor, C. J., who overruled the Judgment. demurrer in the first instance, was also of the opinion that BAIN, J. the order had been validated by the amendment to the

Rule. To support their judgment, the plaintiffs rely both on this amendment and on the ground that the order for the sale of the land, if it was improperly made, was not a nullity, and, therefore, that it could have been got rid of only by an appeal.

In Proctor v. Parker, 11 M. R. 485, the, Court decided that the new procedure provided by Rule 804 for enforeing payment of judgments against lands was not applicable to County Court judgments; and Taylor, C. J., made the remark in his judgment that if this summary and inexpensive mode of proceeding is to be resorted to in the case of these judgments, then further legislation on the subject must be sought. The judgment was delivcred on the 27th of February, 1897, and in An Act to anzend The Queen's Bench Act, 60 Vic., c. 4, which was assented to on the 30th of March, 1897, we find the amendment in question. It is as follows: "Rule 807. By inserting the following Rule after Rule 807: Rule S07 (a). In the case of a County Court judgment an application may be made under Rule 803 or Rule 804, as the case may be. This amendment shall apply to orders and judgments heretofore made and entered, except in cases where such orders or judgments have been attacked before the passing of this amendment "; and it would be unreasonable to doubt that it was the decision in Proctor v. Parker that influenced the Legislature to make the

cnactment.

If this new rule has the effect that the plaintiffs contend it has, it is open to all the criticism that has ever been directed against the injustice of changing or affecting vested interests by retrospective legislation. But whenever the intention is made clear that an Act is to have a retrospective operation, it must be so construed,