1901. whatever the consequences may be; and it seems to me that if we read the new rule in view of the external cir- Judgment. cumstances which led to its enactment, we find that it BAIN, J. does express the intention, though in a very slovenly way, that it is to have a retrospective operation. The effect of the first sentence of the Rule is to make the new procedure under Rules 803 and 804 applicable to judgments recovered in the County Court as well as to those recovered in this Court; and, as the enactment relates to procedure, it would apply to County Court judgments that had already been recovered without any special provision to that effect. And then when the Rule goes on to say that "this amendment shall apply to orders and judgments heretofore made or entered," I can understand it as meaning only that the two Rules are to be taken as having always applied to the case of County Court judg ments; and the necessary consequence of this view is that applications that had theretofore been made under them on such judgments must be considered as having been authorized by the Rules, and that orders that had been made, and proceedings that had been taken, under such applications must be held to be as valid and effective as they would be if the Rules had expressly applied to County Court judgments at the time the applications were made. And the exception, "in cases where such orders or judgments have been attacked before the passing of this amendment," serves to show both that the words "orders or judgments" in the new Rule mean orders or judg ments made by the Court or Judge in pursuance of the Rules, and also that the amendment was intended to apply to those orders and judgments that had been made Lefore the amendment was passed. I think it must be held, therefore, that the order for the sale of the land and the proceedings under it have 1901. been made valid, and the judgment entered for the plainJudgment. tiffs in this action must be affirmed. BAIN, J. RICHARDS, J., concurred. Appeal dismissed with costs. [This case has been appealed to the Supreme Court.-Ed.] The following is a copy of the judgment of Taylor, C. J., referred to in the foregoing case: RITZ V. SCHMIDT. 4th July, 1898-Taylor, C. J. This is an action for the recovery of land. The plaintiffs claim title under a vesting order issued to them as purchasers at a sale had under an order of the Court. The order for this sale was made on a summary application under Rule 803 of the Queen's Bench Act, 1895. The defendants are the original judgment debtor and the grantee on the conveyance alleged to have been made to defraud creditors, both of whom are said to be in possession of the land. Froese, the grantee, has filed a statement of defence and by it, besides setting out certain allegations of fact, he has demurred to the statement of claim. The questions of law raised have been argued pursuant to an order made under Rule 440. The first ground urged by way of demurrer is that the Court had no jurisdiction to make the order under which the land was sold. The judgment in respect of which the motion for sale was made under Rule 803 was a judgment recovered in a County Court, and in Proctor v. Parker, 11 M. R. 485, the Full Court held that applications founded upon County Court judgments could not be made under that Rule. But by 60 Vic., c. 4, a number of amendments were made to the Queen's Bench Act, and one of these was the addition of Rule 807 (a) in the following words: "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.” It was argued that the words "orders and judgments" in that new Rule apply to County Court orders and judgments made or entered before the passing of the Rule. But that cannot be the meaning. What the Legislature was dealing with was the Rules 803 and 804 and applications which might be made under them. Applications founded upon County Court judgments had been entertained 1898. under these Rules and orders for sale made upon them. Then the Court on an appeal held that the provisions of these Rules did not Judgment. apply to such judgments. This decision not only prevented future applications being made, but also rendered titles acquired under TAYLOR, C.J. past orders defective. There can be no doubt, to my mind, that what the Legislature has done by the new Rule is to permit such applications in the future, and to cure and validate orders previously made where no exception had been taken to them. Since that amendment the objection to the jurisdiction of the Court cannot prevail. The other objection is that the vesting order could not convey to the plaintiffs the estate or interest in the land of the defendant Froese because the Court had no jurisdiction to make it. It is argued that the authority of the Court as to vesting orders is derived from section 32 of The Queen's Bench Act, 1895; it is only where the Court has authority to order the execution of a deed or conveyance that it can make a vesting order; that only a party to an action can be ordered to execute a deed or conveyance, and Froese never was a party to the action in which the vesting order was made. Now, granting that the Court can order the execution of a deed or conveyance only where the party ordered to execute it is a party to the action in which the order is made, and can therefore make a vesting order only where the person whose estate and interest is to be affected by it is party to the action, Froese must be held to be a party who could have been ordered to execute a deed or conveyance and whose estate and interest would thereupon pass under a vesting order. When the Court was given authority to bring before it persons on a summary application under Rules 803 and 804, and, in a proper case, make an order for the sale of land according to the usual practice, the authority so given must include the authority to carry out the sale, and make all such orders as may be necessary. And surely to give the purchaser under the order of the Court a title to the land he has bought is a necessary proceeding. Then section 2, sub-section 8, of The Queen's Bench Act seems to answer the objection. That provides that in the Act and Rules, "Party" shall include every person served with notice of or attending any proceeding although not named on the record. If, then, Froese was duly served with notice of the application for a sale he was a party and an order might be made vesting his estate and interest. But it is alleged that he was not duly served. His statement of defence sets out a notice of motion for the order to sell but he claims that while the order was made on the 12th of March, 1896, he was not served with the notice of it until the 29th of that month. The statement of claim alleges that he had notice of the proceed 1898. ings and for the purpose of the demurrer the allegations of fact are to be taken as admitted. The order for sale which is set out in the Judgment. statement of claim orders the interests of Schmidt and Froese to be TAYLOR, C.J. sold and is drawn up treating the latter as a party. Whether he was duly served and had notice as alleged so as to make him a party bound by the order and whose estate and interest would be affected by it is a question of fact to be tried and not a question of law to be determined on a demurrer. The questions of law raised must be decided in favor of the plaintiffs, with costs. HUDDLESTONE V. LOVE. Before KILLAM, C.J. Way of necessity-Right of way-Parol grant of right of way— The plaintiff's claim was for damages for trespass and an injunc- Held, (1) That the intermittent use by the defendant of a convenient old trail was not sufficient to affect the plaintiff with constructive notice of the alleged agreement. (2) That defendant was not entitled to use the trail as a way of necessity notwithstanding that there were natural obstacles to his reaching the travelled highway by any other road. (3) That there was no such continuous enjoyment of the way as is necessary to establish an easement by prescription under 2 & 3 Wm. 4, c. 71, s. 2. Carr w. Foster, (1842) 3 Q. B. 581, and Hollins v. Verney, (1884) 13 Q. B. D. 308, followed. (4) That the evidence was not sufficient to establish a definite agreement for a perpetual right of way or to warrant the interference of a Court of equity by way of specific performance, as the agreement was made when the country was sparsely settled and the road allowances were not expected to be speedily made passable, and the passage across the intervening land not owned by either party might have been shut off at any time. ARGUED 23rd November, 1900. The ACTION to recover damages for trespass to the S. W. 1 section 4, township 14, range 7 W., and for an injunction to restrain the repetition of the alleged trespass. real defence was under a claim of the defendant to a right of way over the land to and from the S. E. section 9, township 14, range 7 W. This claim was put in four ways, three being to a right of way at law, (1) by verbal grant, (2) by necessity, (3) by prescription, and the fourth to an equitable right to specific performance of the alleged verbal agreement for such a way. The facts are fully set forth in the judgment. Plaintiff E. Anderson and II. Ormond for plaintiff. claims an injunction restraining defendant from crossing over and trespassing on his land. Defendant claims a right of way over plaintiff's land on the following grounds: (1) by way of necessity; (2) by verbal grant; (3) by user. Continued user would be very detrimental to plaintiff's land. Just where defendant crosses is arable land. There was no such absolute necessity to cross plaintiff's land as could create a way by necessity. There must be an absolute physical necessity: Gale on Easements, 121; Fitchett v. Mellow, 29 O. R. 6. As to verbal grant: Gale on Easements, 24. The grant set up is too indefinite. There is 1901. Statement. |