digitized by Microsoft® 'Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February ,4, ,893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Oa'ugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® 3 1924 021 651 355 STATUTE LAW: THE PRINCIPLES WHICH GOVERN THE CONSTRUCTION AND OPERATION OF STATUTES. By EDWARD WILBERFORCE, 01' THE INNER TEMPLE, BARRISTEE-AT-LAW. LONDON : STEVENS AND SONS, 119, CHANCERY LANE, 18S1. Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cor^Q(fuhij(&f$ity Libraries, 2007. You may use andjpiiht/liiijc^p^h/ir0s4 quantity for your personal purposes, buumay not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® DEDICATED, BY PERMISSION, TO THE RIGHT HON. ROUNDELL, LORD SELBORNE. LORD HIGH CHANCELLOR OF ENGLAND, WITH THE RESPECT DUE TO A GREAT LAWYER, AND A STATESMAN OF INTEGRITY. Digitized by Microsoft® Digitized by Microsoft® PREFACE. Some years ago I lighted upon a point of law which furnished a successful objection to the charge con- tained in an indictment. The point arose upon the construction of a statute, and, before it came on for argument, I made what search I could for authorities in support of my contention. The difficulty I then experienced in finding cases that had a bearing on the subject led me to devote my " intervals of busi- ness" to the collection of materials for the work which I now present to my profession. My first and chief endeavour has been to arrange in a logical order the leading principles by which Statute Law is governed, and to illustrate them as far as possible by a consistent chain of authorities. I have always felt that, unless such a method as this could be adopted, the mere accumulation of cases decided upon the words of particular statutes would be of little service.... Sppaetjmes, no doubt, in wadinff Digitized by Microsoft® ^ Yi PREFACE. through such a collection, we may stumble upon an authority which seems to assist an argument, but when it is closely examined it is often found to proceed upon a principle wholly inapplicable to the facts under consideration. Even if we are not thus misled, we are left altogether in want of guidance. The absence of arrangement plunges us into a sea of conflicting decisions. Cases which establish an im- portant rule of construction are so mixed with those which set up an exception to it, that the rule itself is sometimes driven out of the field by sheer weight of nvimbers. It is true that the practical use of a text- book to practical men consists in the collection of cases, and that, however cleai'ly principles of law may be stated, they must be supported by decisions which are exactly in point, or by judicial expressions of opinion, in order to carry weight with the profession and to have the sanction of authority. But unless those cases are ranged in such order that the reader can tell where he should look for them, and what is the principle to which they refer, he will be com- mitted to a hopeless search and his labour will often be wasted. How far I may have succeeded in producing a useful work, must be decided by those who consult my pages. I may honestly say that I have taken Digitized by Microsoft® PREFACE. vii great trouble both in collecting and arranging the materiala at my disposal ; and I trust that I may receive the best reward of my labours in finding that I have lightened the labours of others who pursue the same study. EDWARD WILBEEFOECE. 5, Paper Buildings, Temple, January, 1881. Digitized by Microsoft® Digitized by Microsoft® CONTENTS. CHAPTER I. PAGE Statutes and Statute Law ...... 1 CHAPTER II. The Authority of Statutes 2>s CHAPTER III. The Coxstkuotion of Statutes . . . . . 99 CHAPTER IV. The Operation of Statutes . . . . . .154 CHAPTER V. The Various Kinds op Statutes . . . . .213 CHAPTER VI. The Several Parts of a Statute .... 272 CHAPTER VII. The Repeal of Statutes 309 Digitized by Microsoft® CONTENTS. CHAPTEE I. STATUTES AND STATUTE LAW. Statute Law : usual definition ..... Implies that Statute Law is certain Causes of its uncertainty .... 1. Imperfection of language . 2. Language and style of statutes themselves How far due to the framers of statutes How far to the Legislature . 3. Judicial interpretation Statute Law : suggested definition Distinction between legislative and judicial functions "What is a statute . .... What is authentic record of statutes . Legislature is presumed to know the law Eifect of erroneous declaration of law . Effect of recitals ...... May alter the law .... Legislature is presumed to know the construction put upon statutes by the Courts ..... By earlier Parliaments ..... Such construction recognised by implication Legislature not presumed to make unnecessary alteration in Common Law ....... Alterations in Statute Law more readily presumed Judicial functions ...... Not to supply deficiencies .... Not to inquire how statutes were passed This rule has not always been recognised Ancient theories of judicial supremacy As to statutes made against the Law of God . Against natural justice .... Modern refutations of that theory 12. PAGE 1 1 2 2 3 5 6 7 8 9 10 12 13 13 14 15 16 17 18 19 21 23 24 24 25 25 25 26 26 Digitized by Microsoft® CONTENTS. CHAPTEE II. THE AUTHOEITY OF STATUTES. PAGE 28 28 Authority of statutes the highest known to the law "What can be done by statutes ...... Authority extends over the whole realm and to everybody within it 30 Everybody presumed to know Statute Law .... 30 Xo prescription against a statute . . . . . .31 Eqiiity cannot relieve against a statute . . . .31 Bu.t authority of statutes is confined to its own province . 3 1 Cannot alter the course of nature . . . . .31 Does not extend beyond limits of this country ... 32 Does not extend to foreign things ..... 33 Does not bind future Parliaments ..... 3-1: Does not extend to impossibilities ..... 35 Limited by the necessity of using express words ... 36 Express words needed to bind the Crown . . . .36 In what cases the Crown is not bound unless named . 37 Wlien the Crown is bound by necessary implication . 39 When the Crown is bound though not named . . 40 Express words needed to take away jurisdiction of superior Courts 42 To take away writ of certiorari ..... 43 To give an appeal ....... 43 To take away right of changing venue . . . .44 Decisions as to the creation of exclusive jurisdictions . . 45 Express words needed to affect public or private rights . . 47 When authority of statutes is extended by implication . . 49 ■\^^len not 52 Authority must be strictly followed 54 ^Miere a new jurisdiction is conferred .... 55 Where matters of public interest are concerned . . 57 Where statute authorises interference with private property 59 When bye-laws are made in pursuance of statutes . . 61 When certificates are given in pursuance of statutes . 62 The authority of statutes cannot be evaded .... 64 Agreements contrary to policy of statutes void ... 66 But it is difficult to decide what is an evasion . . 66 Digitized by Microsoft® xii CONTENTS. PACiE Evasion in the popular sense is not intended ... 68 Kesponsibility imposed by statutes cannot be shifted . 68 How the authority of statutes may be enforced . .69 1. Directly. ... .69 By indictment . .... 69 By action .... . 70 Exception to rule where statute which confers a right creates the remedy . . . 72 The right and remedy must be created by the same statute . . . 74 and by the same part of the statute . .. . 76 and must be co-extensive . . .77 2. Indirectly . . . . . 80 Contracts made in violation of statutes declared void 80 Actions cannot be brought upon contracts in viola- tion of statutes . . . . .81 But where penalties are imposed for protection of the revenue only, no prohibition is implied . 83 Cases in which contracts themselves are not avoided 85 Protection given by statutes to those who act under their authority . . ...... To what persons it is given ...... Justices of the peace ...... Constables and other officers .... Persons executing public works .... In cases of omission ..... To what persons the protection is not given . There must be an honest belief that the acts done are authorised ........ Reasonable belief not necessary ..... There must be some grounds for such belief . 87 87 88 89 91 91 92 94 96 97 CHAPTER III. THE CONSTEUCTION OF STATDTES. General Rule of Construction . . . . . .99 To ascertain the intention of the Legislature . . .99 Digitized by Microsoft® CONTENTS. Intention is not to be guessed at . Not to be inferred from external evidence PAGE 103 105 But the previous state of the law to be remembered 107 Rules in Heydon's case . . . . 108 Tlie whole Act to be considered . ... 108 The "golden rule" for the construction of statutes . .111 Followed by most of the judges . . . .112 To what extent it prevails . . . . 114 Consequences are not to be regarded . . . .116 Sentences to be read grammatically . . . . .117 Effect to be given to all the words of the statute . . .117 Instances in which words have been inserted . . .118 Instances in which mistakes have been corrected . . .121 Cleaning of words . . . . . . .121 Ordinary grammatical meaning .... 122 Popular meaning . . . . . . .122 Unless technical meaning has been acquired . .12-1 Unless popular jneaning at variance with proper meaning . . . . 126 Words always to receive a reasonable meaning . . .127 Even though that meaning is not strictly accurate , . 130 "Words not to be read too literally . . .131 "Words read in a wider sense than they usually Ijear . 131 Words read in a narrower sense than they usually bear . 134 Various meanings given to words . . . . .13.5 In the same Act ... . . .136 Words to be read according to subject-matter . . .137 Is the meaning of words affected by a change of circumstances'? 141 Exception to the general rule of construction . . .141 "\Miere language is doubtful . . . . .142 Look to contemporanea ej-positio . . . . .142 Evidenced by unbroken usage . . . .143 Usage must be uniform and general . . .146 Evidenced by judicial decisions . . . .147 Convenience or expediency . . . . . .151 Digitized by Microsoft® CONTENTS. CHAPTEK IV. THE OPBEATIOlSr OF STATUTES. Comnieiioement of operation . . - . . .154 Operation of statutes not retrospective . . . .157 Instances of statutes which are not retrospective . . .158 Vested rights of action not defeated . . . .159 Nor new rights created . . . . .161 Instances of statutes which are retrospective . . .162 Acts which are not properly called retrospective . . .163 Eetrospective operation given by express words . . 164,166 Ketrospective operation in cases of practice or procedure . 166 Operation extended to matters of subsequent creation . . 166 Operation of statutes confined to things of most frequent occurrence ..... .... 169 Operation confined to things expressly mentioned . . . 170 Operation of general words may he restrained . . .171 Not without some reason . . . . . .172 By the context 173 By recitals . . . . . . . . .174 By subsequent clauses . . . . . . .174 By the subject-matter . . . . . . .175 To things which are lawful and in harmony with previous policy of law . . . . . . . .177 Conflioting opinions as to the effect of general words . .178 Operation of general words confined to things cjusdem generis . . . .... 179, 180 To matters of inferior dignity . . . . .183 Not so as to deprive the words used of all effect . . 184 General words may refer to a larger genus . .185 Operation of general references restricted . . . .187 General references restricted reddendo singida singulis . .189 Where the general words occur at the end of sections . . 191 Operation of statutes affected where words are treated as imperative or du-ectory . . . . . . .193 No general rule on this subject . . . .193 Conflict of decisions . . . , . . .194 Digitized by Microsoft® CONTENTS. XV PAGE Cases in ■wliicli words of permission liave been considered imperative . . . . . . . .197 Words which give a discretion held to be imperative . 199 Cases in which words of permission have been held not to be imperative ....... 201 Effect of regarding language as directory .... 205 "^'Miere statutes fix a time within which acts are to be done 207 '\'\Tiere statutes prescribe the manner in which acts are to be done 209 Operation of statutes restrained where words of prohibition are modified . . . . . . . . .211 CHAPTER V. THE VARIOUS KINDS OF STATUTES. What are the various kinds of statutes . . . .213 AXCIENT AND MODEEN STATUTES . . . . .213 Greater latitude allowed in construing ancient statutes . 214 "Words used for examples . . . . . .215 General and Special Statutes . . . . .218 Public and private statutes . . . . . .218 Eeal distinction between general and special statutes . 220 What are general statutes ...... 220 What are special statutes 221 Acts giving powers to companies .... 222 How far special Acts affect strangers .... 223 Affirmative and I^egative Statutes .... 225 Affirmative Acts do not take away a custom . . . 225 or alter the common law . . . . .225 Declaeatoet and Enacting Statutes .... 228 Declaratory Acts are not imperative .... 229 Ebmbdial and Penal Statutes 230 What are remedial statutes . . . . . .231 Statutes which are partly penal .... 2;'.2 What is liberal construction 235 Digitized by Microsoft® CONTENTS. Extension of the words of statutes by equity- Most common witli ancient statutes Language of statutes restrained by equity What are penal statutes What is strict construction . Close adherence to the letter of statutes Cases not within the meaning The object of the statute must not be defeated Instances in which this rule has been followed Statutes in Pari Materia ...... Legislative or judicial interpretation of one Act to be followed in another .....•• Provisions made for one Act adopted in another . Does express reference to one Act extend to another in purl materia ? .....•• Extension of the language of statutes by reference to others in pnri materia ...... Temporary Statutes . . ..... Perpetual statute not rendered temporary by unnecessary continuance . . . . . ■ PAGE 238 239 242 243 246 249 253 255 258 260 261 264 266 268 269 270 CHAPTEK VI. the several parts of a statute. What are the parts of a statute .... The Title Is the title part of a statute 1 . . . Cannot restrict the effect of general language May show the intention of the Legislature . Sometimes influences the construction of statutes Full title need not be cited . The Preamble ..... Usual definition of preamble Effect usually given to it . Cannot control enacting words 272 272 272 274 274 275 277 277 277 278 278 Digitized by Microsoft® CONTEA^TS. PAGE Instances in wliicli enacting words have gone beyond preamble 280 Effect of recital similar to that of preamble . . . 282 Instances in which enacting words have been restrained by a recital ........ 283 Instances of enacting words being restrained by preamble 285 Conflicts of opinion ... ... 286 Preamble or recital may extend enacting words . . 289 Clauses or SECTioNa ....... 290 Statutes are now divided into sections . . . 290 Inconsistent sections to be reconciled if possible . .291 Difficulty of reconciling them . . . .292 Marginal notes no part of sections .... 293 Genera] headings to groups of sections . 294 The interpretation clause . . . . 296 Not followed strictly .... .298 " Include " used to extend, not to define . . 299 Provisoes, Savings, and Exceptions .... 300 Saving clause and proviso apparently identical . . 300 Suggested distinction between them .... 301 Importance and effect of proviso ..... 302 Proviso or saving cannot enlarge enacting words . . 303 Distinction between provisoes and exceptions . . 304 Schedules 306 Variance between Act and schedule, the Act prevails 306 Where forms are imperative .... 307 CHAPTEE VII. THE REPEAL OF STATUTES. 309 309 Express Eepeal of Statutes May be in same session as enactment . Does not revive statutes already repealed . . .309 Eepealed Act remains in force till new provisions take 'effect 310 Digitized by Microsoft® h XVlll CONTENTS. FAGfB Ebpeal by Implication 310 "Wliat is inconsistency between two statutes . . .311 Of statute "by another passed in the same session . . 315 Of one part of an Act hy another . . . .316 ]S"ot to be presumed without great care . . .318 Where it will not be presumed . . . . .318 Limited to part which is repugnant .... 319 Modification of earlier statute substituted for repeal by implication ........ 320 Eepeal by a change of penalty ..... 322 Not by cumidative penalties ..... 324 Eepeal not usually effected by affirmative words . . 326 Unless those words introduce a new law . . 328 Special Acts not repealed by general . . . .330 This rule followed in early times . . . .332 Modern instances . . . . . .333 Cases where special privileges are given . . 334 Special Acts not repealed by subsequent special Acts . 338 Where special Acts may be repealed by general Acts 338, 339 General Act may be repealed j))'y tmiio by a special Act 340 How a repeal cannot be effected . . . . .341 How a repeal may be prevented . Eepeal delayed by saving clause . Effect of repeal on statutes themselves . When repealed Act may be looked at Effect of repeal on powers given by statutes 342 343 344 345 346 Digitized by Microsoft® TABLE OF CASES. Abe — Ant. Abel v. Lee, L. E. 6 C. P. at p. 371 . Aberdare Local Board v. Hammett, L. R. 10 Q. B. 162 Abergavenny, Earl, v. Brace, L. R. 7 Ex. 1 1.5 Ablert v. Pritchard, L. E. 1 G. P. 210 Abley v. Dale, 11 C. B. 391 Ackroyd v. GiU, 5 E. & B. 808 . Adams v. Bancroft, 3 Sumner, 384 Aerated Bread Co. v. Gregg, L. R. 8 Q. B. 355 Agnew V. Jobson, 47 L. J. M. G. 67 . Ailesbury, Earl of, v. Pattison, 1 Dong, at p. 30 Albon V. Pyke, 4 M. (fe G. 421 . Alderman Backwell's case, 1 Vern. 1-32 Alexander v. Brame, 7 De G. M. & G. at p. 539 V. Newman, 2 C. B. 122, 136 — ■ Larsen, The, 1 W. Rob. 288 Allen, Re, 3 E. & E. 338 . V. Flicker, 10 A. & E. 640 V. Thompson, L. R. 5 Q. B. 336 Allsop V. Day, 7 H. & N. at p. 463 . Alton Woods, case of, 1 Rep. at p. 47 American Fur Go. v. U. S. 2 Peters, 358 Anglo-Greek Steam Go., Re, L. R. 2 Eq. 1 Ankrim's case, 3 McLean, 285 . Ann, The, 1 Gallison, 62 . . . Anon, Lofft, 438 ... . Antony v. Gardenham, Fort. 309 Digitized by Microsoft® PAGE 115, 116 254 ;^87 341 117 269 245 141 98 184 47 197 67 230 163 56 307, 342 133, 185 246, 296 302 257 181 157 156 245 2:56 XX TABLE OF CASES. Ard— Att. Aiding V. Bonner, 2 Jur. N. S. 763 . V. Holmer, 1 H. & W". 85 Arnold v. Arnold, 2 Mylne & Craig, 256 V. Mayor of Gravesend, 2 K. & J. 574, 591 .... V. Eidge, 13 C. B. 763 . ArtMrw. Bokenham, 11 Mod. 150, 161 . 20. Ash V. Abdy, 3 Swans. 664 Ashburnham v. Bradshaw, 2 Atk. 36 . Ashby V. White, 14 State Trials, at p. 785 Asplin V. Blaokman, 7 Ex. 386 . Atoheson v. Everitt, Cowp. 391 . Atkinson v. Eell, 5 M. & S. 240 V. Newcastle and Gateshead Water Go. L. E. 6 Ex. 404, 2 Ex. D. 441 • V. Queen's Proctor, L. E. 2 P. &D. 255 Att.-Gen. v. Allgood, Parker, at p. 15 V. Andrew, Hardress, at p. 27 V. Andrews, 1 Yes. Sen. 225 V. BaUey, 1 Ex. 281 . ■;;. Barry, 4 H. & K 470 . V. Campbell, L. E. 5 H. L. 524 V. Cast Plate Glass Co., 1 Anstr. 39 V. Chelsea Waterworks, Fitzgibbon,195 V. Constable, L. E. 4 Ex. D. 172 V. Donaldson, 7 M. & W. 422 ; 10 M, & W. 123, 124 . V. Dunn, 1 Ir. Law Eep. (E.), 357 V. Forbes, 2 CI. & Ein. 48 . V. G. E. Ey. Co., L. E. 7 Ch. 475 H. L. 367 . L. E. 11 Ch. D, 449, 460, 461, 465 V. G.N. E. Co., 1 Drew. & Sm. 154, 158 V. Hackney Local Board, L. E. 20 Eq, 626 ... . V. HaUett, 2 H. & N. 368 . V. Jeffreys, 13 Price, at p. 580 V. Lamplough, L. E. 3 Ex. D. 214, 223 PAGE 106 39 33 303 113 107, 111 244 158 71 195 235 134 79 39 38 40 158 124 134 33 124 302 39 37, 38 324 33 106 294 61 94 113, 140 256 346 Digitized by Microsoft® TABLE OF CASES. XXI Att-Bar. ^^^^ Att.-Gen. v. Lloyd, 3 Atk. 551 . . . . 158 V. Lock, 3 Atk. 166 . . . . 194 V. Lockwood, 9 M. & W. at p. 398 ; 10 M. &W. 464 . . . . 113,255 V. Magdalen College, 18 Beav. 223 . 38 V. Manchester and Leeds Ey. Co., 1 Eail. Cas. 436 ... . 31 r>. Middle ton, Lord, 3 H. & N. 138 . 244 V. Pougett, 2 Price, 381 . . . 122, 165 ■ V. Powis, Earl, 1 Kay, 186 . . . 107, 278 V. Primate, The, 1 Jebb & Symes, at p. 317 142 V. Saggers, 1 Price, 182 . . . 169 V. Sillem, 2 H. & C. 482, 575 ; 10 H. L. C. 704 . . 25, 43, 107, 257 V. Weymouth, Ambler, 22 . . . 273 V. Winstanley, 2 Dow. & CI. 302, 310. 122 for Prince of Wales v. Bristol Water- works Co., 10 Ex. 884 . . 165 Ayrton v. Abbott, 14 Q. B. 1 . . . . 151 Back well's, Alderman's, case, 1 Vern. 152 Badger v. Shaw, 2 E. & E. 472 . BaHey v. De Crespigny, L. R. 4 Q. B. 1 80 Baines v. Swainson, 4 B. & S. 278 Baldey v. Parker, 2 B. & C. at p. 40 . Balfour V. Malcolm, 8 CI. & Fin. at p. 500 Ballinger v. Eerris, 1 M. & W. 628 . Bane v. Methuen, 2 Bing. 63 Bank for Savings v. The Collector, 3 Wallace, 495 of U. S. V. Lee, 13 Peters. 107 . of Utica V. Smedes, 3 Cowen, 662 Barbat v. Allen, 7 Ex. 609 Barber v. Gamson, 4 B. & Aid. 281 . — V. THson, 3 M. & S. 429 Barden v. Crocker, 10 Pickering, 383 . Barnes v. Eddleston, L. R. 1 Ex. D.' 102 Bamett v. Cox, 9 Q. B. 617 Digitized by Microsoft® 197 328 29 302 234 43 89 50 347 234 221 54, 106 195 167 78 344 220, 221 TABLE OF CASES. Bar— Bir. Barrack z;. M'CuUoch, 3 K & J. 110 . Barraclougli v. Greenhoiigh, L. E. 2 Q. B. 1, 612 Barrett v. Stockton Ey. Co., 2 M. & G. 134, 3 M & G. 956 Barrington's case, 8 Eep. at 138a Barrow v. Wadkin, 24 Beav. 327 Bartlett v. Gibbs, 5 M. & G. at p. 96 . V. Vinor, Garth. 252 Barton v. Brioknell, 13 Q. B. 393, 396 V. Piggott, L. R. 10 Q. B. 86 . Bayly v. Scliofield, 1 M. & S. at p. 350 Baynes v. Baynes, 9 Vesey, 462 . Beals V. Hale, 4 Howard, 37 Beardmerv. L. & K W. Ey. Co., 1 Macn. & C 112 Bearpark v. Hutchinson, 7 Bing. at p. 186 Beaufort, Duke of, v. Smith, 4 Ex. 470 Beaumont v. Mountain, 10 Bing. 404 . Becke V. Smith, 2 M. & W. 191, 195 . Beckford v. Hood, 7 T. E. 620 . V. Wade, 17 Vesey, 87—92 . Bedford Infirmary, Governors of, v. Bedford missioners, 7 Ex. 768 Beech V. Eyre, 5 M. & G. 415 . Beeohey v. Sides, 9 B. & C. 806 Bell V. BDton, 4 Bing. 615 V. Crane, L. R. 8 Q. B. 481 V. Morrison, 1 Peters, 360 . Bennett v. Brumfitt, L. E. 3 C. P. 28 V. Daniel, 10 B. & C. 500 . V. Edwards, 7 B. & C. 586 . Bensley v. Bignold, 5 B. & Aid. 335 . Berkeley v. Elderkin, 1 E. & B. 805 . Beta, The, L. E. 2 P. C. 447 . Betty V. Nail, 6 Ir. C. L. Eep. (E), at p. 26 Biffin V. Yorke, 6 Scott, JST. E. 235 . Billing V. Plight, 6 Taunt. 419 . Bird v. Gunston, 2 Chit. 459 . Birkenhead Docks v. Laird, 4 De G. M. & Com- 732 PAGE 167 140 222 223 12 307 80 113 81 122 56 316 106 231 15 220 112 78 172, 177 185 199 95 164 202 232 123 192 168 82 73 178 152 9 234 88 332 Digitized by Microsoft® TABLE OF CASES. xxni Bir — Bow. Bii'ks V. AlUson, 13 C. B. N. S. 23 . Birmingham Benefit Society, Ee, 3 Sim. 421 Cliurchwardens v. Shaw, 10 Q. B. 868, 878 Birtwhistle v. Vardill, 7 CI. & Fin. at p. 929 Blackburn, Mayor, v. Parkinson, 1 E. & E. 71 BlackweU v. England, 8 E. & B. 541 . V. Harper, 2 Atk. 93 . Blades v. Lawrence, L. E. 9 Q. B. 374 Blain, Ex parte, Ee Sawers, L. E. 12 Ch. D. 522 Blake v. AttersoU, 2 B. & C. 875 V. Midland Ey. Co., 18 Q. B. 109 Blakemore v. Glamorganshire Canal Co., 1 Mylne & K. 162 ; 2 Cr. M. & E. at p. 141 Blanchard v. Sprague, 2 Story, 164 V. , 3 Sumner, 279 . Blanford v. Morrison, 15 Q. B. 724 Blues, Ee, 5 E. & B. 291 . Bode, Baron de, v. The Queen, 13 Q. B. 364 Boden v. Smith, 18 L. J. C. P. 121 . Bodenham v. St. Andrew's, 1 E. & B. 465 Bole y. Horton, Vaughan, at p. 373 . Bolina, The, 1 Gall, at p. 83 Bond V. Eosling, 1 B. & S. 371 . Bones v. Booth, 2 W. Bl. 1226 . Bonham's case, 8 Eep. 117 a, b, 118 a. Boon V. Howard, L. E. 9 C. P. at p. 308 . Booth V. Bank of England, 7 CI. & Ein. 509, V. Clive, 10 C. B. 827 ; 20 L. J. C. P. Boothroyd, Ee, 15 M. & W. 1 . Bosanquet v. Woodford, 5 Q. B. 310 . Bostock V. l^orth Staffordshire Ey. Co., 4 E, 798; 3 Sm. &G. 283 . Boughey v. Eowbotham, 4 H. & C. 711 Boulton V. Crowther, 2 B. & C. 703 . Bowditch V. Wakefield Local Board, L. E. 6 567 , Hope Society, 11 H. L. C. 389—402 Digitized by Microsoft® 26, 540 151 &B. Q.B. PAGE 113 122 127 294 73 141 83 266 33 285 276 222 157 121 184 133 41 340 122 170 257 212 233 109, 292 127 65, 66 95 121 207 61 130 29 125 197 TABLE OF CASES. Bow — Bry. Bowman v. Blyth, 7 E. & B. 48 . Bows V. Fenwick, L. E. 9 C. P. 339 . Boyd V. Croydon Ry. Co., 4 Bing. N. C. 669 Bracy's case, 1 Salk. 348 Bradley v. Bradley, L. E. 3 P. D. 47 . Bradshaw v. Tasker, 7 Mylne & Keen, 221 Bramston v. Mayor of Colchester, 6 E. & B. 246 Branch v. Browne, 2 De G. & Sm. 299 Brand v. Hammersmith Ey. Co., L. E. 1 Q. B. 148, 2 Q. B. 337, 4 H. L. 171 Brandling v. Barrington, 6 B. & C. 467, 475 Branwell v. Penneok, 7 B. & C. 536 . Brayhrooke, Lord, v. Att-Gen., 9 H. L. C. 165 Brenan's case, 10 Q. B. 492 Brett V. Beals, Moo. & Malk. 421 v. Brett, 3 Addams, 210 . Brewer v. Blougher, 14 Peters, 178 Brewster v. Kitchell, Salk. 198 . Bridgman, Ee, 1 Drew. & Sm. 164 Britt V. Eohinson, L. E. 5 C. P. at pp. 513, 514 Britton v. Ward, 2 Eolle's Eep. 127 . Broadbent v. Imperial Gas. Co., 7 De G. M. & G, at pp. 447, 448 ... . Brook V. Badley, L. E. 4 Eq. at p. Ill V. Brook, 3 Sm. & G. 481 ; 9 H. L. C. 193 Brooks V. Bookett, 9 Q. B. 847 . V. Cook, 3 A. & E. 138 . Broughton v. Manchester Waterworks Co., 3 Aid. at p. 10 Brown v. Barry, 3 Dallas, 367 . . V. Glegg, 16 Q. B. 681 . V. Duncan, 10 B. & C. 93 V. Holyhead Local Board, 1 H. & C, V. London, Mayor of, 9 C. B. IST. S, 13 C. B. K S. 828 . V. McMillan, 7 M. & W. 201 . V. The Alina, L. E. 5 Ex. D. 227 Bruyeres v. Halcomh, 3 A. & E. 381 . Bryan v. Child, 5 Ex. 368 . B. & 601 726 PAGE 206,208 185 131 56 139 164 339 168 295,296 239 182 123 210 15,220 276, 289 122 29 194, 197 247 65 296 116 33 161 83 86 244 173 84 62 29 112 179 63 295 Digitized by Microsoft® TABLE OF CASES. XXV Buc — Cas. PAGE Buokeridge v. Flight, 6 B. & C. 49 . . . 244 Btdteley v. Schutz, L. E. 3 P. C. 764 . . 33 Burder v. Veley, 12 A. & E. 247 ... 244 BurHng v. Harley, 3 H. & JST. 271 . . . 89 Burn V. Carvalho, 1 A. & E. 895; 4 N. & M. 893 156 Burns t. Carter, 5 Bing. 429 ... . 312 V. NoweU, L. E. 5 Q. B. D. at p. 454 . 154 Burton v. Eeevell, 16 M. & W. at p. 309 . . 124 Bush V. Green, 4 Bing. JST. C. 41 . . . 93 Butcher v. Henderson, L. E. 3 Q. B. 335 . . 322, 349 Butler & Baker's case, 3 Eep. at 27b. 31a. . 100, 132, 246 Butler V. Ford, 1 Cr. & M. 662 . . . . 89 Buxton V. Mingay, 2 Wilson, at p. 73 . . 7 Cadogan v. Kennett, 2 Cowp. at p. 434 . . 234 Cahill V. L. & N. W. Ey. Co., 30 L. J. C. P. 289 224 Calder v. Bull, 3 Dallas, at p. 391 . . . 158 Calder, &c., ISTavigation Co. v. Pilling, 14 M. & W. 76 . . . .... 62 Caldow V. Pixell, L. E. 2 C. P. D. 562 . . 209 Cambrian Ey. Go's. Scheme, Ee, L. E. 3 Ch. 278 187 Camden v. Anderson, 6 T. E. 723 . . . 190 Cameron v. Cameron, 2 MyLne & Keen, 289 . 106 Campbell, Ex parte, L. E. 5 Ch. 703 . . . 16 Cann v. Clipperton, 10 A. & E. 582 . . . 97 Cannan v. Bryce, 3 B. & Aid. 179 .. . 83 Canterbury, Archbishop's, case, 2 Eep. 46 . . 183 Capel V. Child, 2 Cr. & J. 558 . . . . 57 Cargo ex Aigos, L. E. 3 A. & E. 558 ; 5 P. C. 134 179 Carpue v. L. B. & S. C. Ry. Co., 6 Q. B. 747 . 92 Carruthers, Ex parte, 9 East, 44 . . . 311 V. Payne, 5 Bing. 270 .. . 93 Carter & Claycole's case, 1 Leonard, 306 . . 222 V. Crawley, Sir T. Eay. at p. 497 . . 23 V. McLaren, L. E. 2 Sc. Ap. at p. 125 . 30 Casher v. Holmes, 2 B. & Ad. 592 . . . 184, 245 Castelli v. Groom, 18 Q. B. 490 . . . . 202 Castle's case, Cro. Jac. 644 72 Digitized by Microsoft® XXVI TABLE OF CASES. Cas— Cle. Castriquo v. Page, 13 C. B. 458 . Caswell V. Cook, 11 C. B. N. S. 637 . Gates V. Knight, 3 T. E. 442 Cavendish V. Worsley, Hobart, 203 Chamberlain v. King, L. E. 6 C. P. 474 Chambers v. Manchester and Milford Ey 5 B. & S. 588 Chance v. Adams, 1 Ld. Eaym. 77 Chandos, Marquis, v. Com. Inland Ee venue, 479 Chapman v. Mil vain, 5 Ex. 61 . V. Purday, 12 M. & W. 303 Charlotta, The, 1 Dods. Adm. at p. 392 Charrington v. Meatheringham, 2 M. & "W. 228 Charter v. Grame, 13 Q. B. 216, 234 . Chelsea, Vestry of, v. King, 17 C. B. N. S. 629 , Waterworks Co. v. Bowley, 17 Q. B, Co, 6 Ex 358 Chick, Ex parte, Ee Meredith, L. E. 11 Ch. D, 731 Chilton V. London and Croydon Ey. Co., 16 M. & W. 212 Chorlton v. Lings, L. E. 4 C. P. 374 . V. Tonge, L. E. 7 C. P. at p. 183 . Christie v. Eichardson, 10 M. & W. 688 . V. Unwin, 11 A. & E. 373 . Christopherson v. Lotinga, 15 C. B. K S. 809 33 L. J. C. P. 121 Churchniv. Crease, 5 Bmg. 177, 180 . Clack V. Sainsbury, 11 C. B. 695 Clarence Ey. Co. v. Great Northern of England Ey. Co. 4 Q. B. 46 Clark v. Gaskarth, 8 Taunt. 531 . Clarke v. Crowder, L. E. 4 C. P. at p. 643 . Claydon v. Green, L. E. 3 C. P. 511 . Clayton, Ex parte, 1 Eussell & Mylne, 369 . , L. E. 5 Ch. 13 . Clementi v. Walker, 2 B. & C. 861 . Clements v. Smith, 3 E. & E. 238 PAGE 293, 317 244 45 31 94 59 241, 273 235 199 162 30 347 207 153 180 176 62 123 318 132 55 57 165, 292 328 175 181 243 294 226 125 33 231, 237 Digitized by Microsoft® TABLE OF CASES. XXVll Cle — Cot. PAGE Clementson v. Williams, 8 Craiicli, 72 . . 232 Clicquot's Champagne, 3 Wallace, 115 . 235 Clugas V. Penaluna, 4 T. R 466 . . . 82 Cobb V. Mid-Wales Ey. Co., L. E. 1 Q. B. 348, 34'J 24 Cochran's Estates, Ee, L. E. 5 Eq. 209 . . 164 Cockbum v. Harvey, 2 B. & Ad. 797 . . 244 Coe V. Lawrance, 1 E. & B. 516 . . . 251 Colchester, Lord, v. Kewney, 4 H. & C. 445 . 122 Cole y. Green, 6 M. & G. 872 . . . 211 Colebrooke v. Tickell, 4 A. & E. 916 . . 180 Collier V. Worth, L. E. 1 Ex. D. 464 . . 141 Colman v. E. C, E. Co., 10 Beav. 14 . . 61, 223 Commonwealth v. Alger, 7 Cushiiig, at p. 89 . Ill V. Duane, 1 Binney, at pp. 607, 608 110 V. Kimball, 21 Pickering, 373 324, 349 V. Loring, 8 Pickering, at p. 373 . 260 Cone V. Bowles, 1 Salk. 205 .... 232 Conservators of Thames «. HaU, L. E. 3 C. P. 415 334 Cook V. Clark, 10 Bing. 19, 21 . . . . 90, 231 V. Humber, 11 C. B. N. S. at p. 48 . . 138 V. Leonard, 6 B. & C. 351 . . . . 93, 96, 97 V. Tower, 1 Taunt. 372 ... . 195 Cooper V. Wandsworth Board of Works, 14 C. B. i^. S. 180 Cope V. Doherty, 2 De G. & Jones, 614 . . 33, 49 171 Eowlands, 2 M. & W. 149 80, 82, 84, 85 Copeland, Ex parte, 2 De G. M. & G. 914 . 260, 264, 345 Copeman v. Gallant, 1 P. Wms. 320 . . . 288 Copland v. Davies, L. E. 5 H. L. 358, 378, 389 . 286 Corbet's case, 1 Eep. at p. 88 a . . . . 241 Core V. James, L. E. 7 Q. B. 135 .. . 254 Comill V. Hudson, 8 E. & B. 429 . . . 164 Comwallis, Ee, 11 Ex. 680 . . . . 159 Cortis V. Kent Waterworks Co. 7 B. & C 330 . 131 Costa Eica, Eepublic of, v. Erianger, L. E. 3 Ch. D. 62, 69 166 Cottonplanter, The, 1 Paine, 23 . . . . 156 Digitized by Microsoft® XXVlll TABLE OF CASES. Cou — Dav. Couch V. Jeffries, 4 Burr. 2460 . V. Steel, 3 E. & B. 402 . Coulbert V. Troke, L. R. 1 Q. B. D. 1 . Courtauld v. Legh, L. E. 4 Ex. at p. 130 Coverdale v. Charlton, L. R. 4 Q. B. D. at Cowell V. Chambers, 21 Beav. 619 Cowley, Lord, v. Byas, L. E. 5 Ch. D. 944 Crake v. Powell, 2 E. & B. 210 . Craw V. Eamsey, Vaughan, 285 . Crawford v. Spooner, 6 Moore, P. C. at p. i Crespigny v. Wittenoon, 4 T. E. at p. 793 Creswick v. Eookshy, 2 Bulstr. at p. 51 Crisp V. Bunbury, 8 Bing. 394 . Crofts V. Haldane, L. E. 2 Q. B. 194; 8 B, 194 Crooke v. McTavish, 1 Bing. 307 Crosley v. Arkwright, 2 T. E. at p. 609 Cross V. Watts, 13 C. B. N. S. 239 . Crouther's case, Cro. Eliz. at p. 655 . Crow V. Eamsey, Sir T. Jones, at p. 12 Cuckfield Burial Board, Ee, 19 Beav. 153 CuU V. Austin, L. E. 7 C. P. at p. 234 Cullen V. Trimble, L. E. 7 Q. B. 416 . Cunard v. Hyde, E. B. & E. 670 CundeU v. Dawson, 4 C. B. 376 Curlewis v. Lord Mornington, 7 E. & B. 283 Curson's case, 6 Eep. at p. 76 b . Daines v. Heath, 3 C. B. at p. 941 . Dakins v. Seaman, 9 M. & W. 789 . Daly V. Lord Bloomfield, 5 Ir. Law Eep. Q P-77 Daniel v. Bingham, 4 Ir. L. E. at p. 293 V. WUson, 5 T. R. 1 Dash V. Van Kleeck, 7 Johnson, 477, 502 Davies v. South Staffordshire Ey. Co., 21 M. C. 52 Davis V. Bryan, 6 B. & C. 651 . y. Curling, 8 Q. B. 286 . 124 PAGE 159 79 130 136 191 14 23 195 117 103, 105 278, 285 130 46 &S. 49 21 261 130 70 29, 31,117 38 117, 122 51 86 81, 85 242 187 B. at L. J. 244 327 148 275 90 157 299 212 91 Digitized by Microsoft® TABLE OF CASES. Dav — Doe. Davis V. Edmondson, 3 B. & P. 382 . V. Scrace, L. E. 4 C. P. 172 . Davison v. Gill, 1 East, 64 . . . Davys v. Douglas, 4 H. & N. 180 Daw V. Metropolitan Board of Works, 12 C. B, N". S. 161 Dawson, Ex parte, L. E. 19 Eq. 433 . V. Paver, 5 Hare, 433, 434 . Day V. Savadge, Hob. 87 ... . Dean v. Mallard, 15 C. B. N. S. 25 . Dearden v. Townsend, L. E. 1 Q. B. 10 De Begnis v. Armistead, 10 Bing. 107 De Beauvoir v. Welch, 7 B. & C. at p. 278 De Boinville v. Arnold, 1 C. B. N. S. 21 . Denn d. Manifold v. Diamond, 4 B. & C. 243 V. Eeid, 10 Peters, at p. 527 Deptford Churchwardens v. Sketchley, 8 Q. B, 408 De Tabley's, Lord, Settled Estates, Ee, 11 W. E. 936 Dewhirst v. Pearson, 1 Or. & M. at p. 376 . Dewhuist V. Fielden, 7 M. & G. 187 . De Winton v. Mayor of Brecon, 26 Beav. 533. 543 De Wolf V. LindseU, L. E. 5 Eq. 209 Dickenson v. Fletcher, L. E. 9 C. P. 1 Dickinson v. N. E. Ey. Co., 2 H. & C. 735 Dickson V. E, 11 H. L. C. 184 . Dimes v. Grand Junction Canal Co., 9 Q. B. 514 Ditcher v, Denison ..... Dixon V. Harrison, Vaughan, 37, 38 . Doe d. Angell v. Angell, 9 Q. B. 328 — Bristol Hospital, Governors, v. Norton, 11 M. & W. 928 . — Bywater v. Brandling, 7 B. & C. 643, 660 — Davenish v. Moflfatt, 15 Q. B. 257 . — EUis V. Owens, 10 M. & W. 521 . — Evans v. Page, 5 Q. B. 767 . — Hudson V. Eoe, 18 Q. B. 805 . PAGE 268 305 307 127 314 162 220 26, 27 345 61 83 199 175 244 104, 111 48, 125 210 255 138, 170 292 164 251 138 244 170 203 117, 151 136, 162 152 110 105 149 160 274 Digitized by Microsoft® TABLE OF CASES. Doe— Edd. Doe d. Johnson v. Liversedge, 11 M. . Moah, Dears. C. C. 639 — V. Monck, L. E. 2 Q. B. D. 552, 553, 555 — V. Moreley, 2 Burr. 1041 — V. Monis, L. E. 1 C. C. E. at p. 95 — V. Mosley, 2 B. & C. 226 — V. Neath, Overseers, L. E. 6 Q. B. 707 — V. Nene, 9 B. & C. 875 . — V. Nevill, 8 Q. B. 452—465 . PAGE 163 227 148 207 36 182 107 225 29,42 261 121 73 260, 345 237 105 37 348 73 245, 275 175 180 279,280 73^ 262 348 343 113 315 294 263 6, 153 43 107 180 181 180 180 Digitized by Microsoft® TABL]^ OF CASES. B, R. E. V. Newark, Inh., 3 B. & C. 63, 71, 81 — V. Norfolk, J., 4 B. & Ad. at p. 238 — V. Northleach & Witney Trustees, B B, 978 — V. Norwich v. "Watton Eoad Trustees, 5 A, 563 . . . : . — V. Norwich, Mayor, 1 B. & Ad. 310 — V. Oldliam, Mayor of, L. E. 3 Q. B. 475 — V. Owen, 15 Q. B. 476 . — V. Oxford, Bishop of, L. E. 4 Q. B. p. 261, 525 . — V. Oxford, Vice-Chancellor of, L, E. 7 Q. — «. Palmer, 1 Leach. C. C. 352, 355 — V. Patteson, 4 B. & Ad. 9 — V. Paty, 2 W. Bl. 721 . — V. Pawlyn, 1 Sid. 208, 209 . — V. Payne, L. E. 1 C. C. E. 27 — V. Paynter, 13 Q. B. 399 — V. Pearce, L. E. 5 Q. B. D. at p. 389 — V. Pease, 4 B. & Ad. 30, 41 . — V. Pembridge, Inh., 3 Q. B. 901 . — V. Percy, L. E. 9 Q. B. 64 . — V. Pierce, 3 M. & S. 61, 66 . — V. Pilkington, 2 E. & B. 546 . — V. Binder, 24 L. J. Q. B. 148 — V. Pinney, 2 B. & C. 322 — i;. Plowiight, 3 Mod. 95 — V. Poor Law Commissioners, 6 A. & E- 68—69 — u Price, 11 A. &E. 727 — V. Pugh, 6 Mod. 141 . — V. 1 Dougl. 188 . — V. Eamsgate, Inh., 6 B. & C. at p. 715 — V. Eobinson, 12 A. & E. 672 . _ V. 2 Burr, at p. 805 — V. Eochester, Mayor, 7 E. & B. 910 — V. Eogers, 10 East, 569 . — V. EusseU, 13 Q. B. 237 — V. Sadi, 1 Leach, C. C. 468 . Digitized by Microsoft® & Ad, &E. D. at 118, 471 1,7 PAGE 290, 303 195 311 252 207 19 140 196, 203 138 111 210 132 70, 220 185 188 298 112 133 174, 284 278, 280 237 307 327 43 113, 116 70 326 226 117 133 70, 75 207 270 306 50 (12 lii TABLE OF CASES. K. E. V. ■ — V. ■ — V. V. V. - V. - V. - V. - V. - V. - V. - V. - V. - V. - V. - V. ■ V. ■ V. ■ V. ■ V. ■ V. ■ V. - V. ■ V. - V. ■ V. ■ V ■ V. V. ■ V. ■ V. V. V. Sainsbury, 4 T. E. at p. 457 St. Edmunds, Salisbury, 2 Q. B. 72 St. George, Southwark, 10 Q. B. 852, 863 St. Gregory, Inh., 2 A. & E. 99 . St. James, Westminster, 2 A. & E. 241 St. Luke's, Chelsea, L. E. 6 Q. B. 572^ 7 Q. B. 148 . St. Mary, Whiteohapel, 12 Q. B. 120, 127 St. Mcholas, Ipswich, Burr. S. C. 91 Eoohester, Inh., 5 B. & Ad. at p. 226 Seale, 5 E. & B. 1 . Sedgley, 2 B. & Ad. 65 . Shavington, 17 Q. B. 48 . Shrewsbury, 3 B. & Ad. 216 Silvester, 33 L. J. M. C. 79 Skeen, Bell's C. C. at p. 115, 116 . 3, 117 Sleep, L. & C. 44 ; 30 L. J. M. C. 171 Smith (Jesse), L. E. 1 C. C. E. 266 L. & C. 131 . 2 Doug. 441 . L. E. 8 Q. B. 146 . Somersetshire, J.J., 4 B. & Ad. 549 South Weald, 5 B. & S. 405 . Sparrow, 2 Strange, 1123 . Spratley, 6 E. & B. 367 . Staffordshire, 12 East, at p. 577 . Stock, 8 A. & E. 405 Stoke Damerel, 7 B. & C. 563 . Sudbury Burial Board, E. B. & E. 264 Suffolk, J. J., 2 Q. B. 85 . Sugden, 1 Ir. Jur. 0. S. (Ex. Ch.) 58 Surrey, J.J., 2 T. E. 504 . Sutton, 4 M. & S. 532 Swiney, 1 Alcook & Napier, 131, 132 Taunton, St. James, 9 B. & G. 831, 836, 837 15a Thames and Isis Navigation Co., 5 A. & E. at p. 816 PAGE 69 330 292 212 51 52, 231 163 211 138 171 147 127 187 182 ,129,153 254 167, 253 343 70 343 159 205 207 185 24 43 59 298 330 121 4."> 15 269 263, 301 105 Digitized by Microsoft® TABLE OF CASES. liii R. E. y. Threlkeld, Inli., 4 B. & Ad. at pp. 235, 236 Titlie Commissioners, 14 Q. B. 459, 474 Toms, 1 Dougl. at p. 406 . Tuchin, 2 Ld. Eaym. 1066 Upper Pap worth, 2 East, 413 Vandeleer, 1 Str. 69 . Vine, L. E. 10 Q. B. 195 . Walcot, Overseers, 2 B. & S. 568 Walford, 9 Q. B. 626 Walker, L. R. 10 Q. B. 355 "Wallis, 5 T. R. 375 . Warwick, CouncH of, 8 Q. B. 929 Waslibrook, Inli., 4 B. & C. 732 West Eiding, J.J., 1 Q. B. 325 . 10 Q. B. 763 L. E. 1 Q. B. D. 220 "WTiissendine, Inh., 2 Q. B. 454, 455 Whittaker, 2 C. & K. 640 White, L. E. 2 Q. B. 557, 563 Whiteley, 3 H. & IST. 143 . Willcock, 7 Q. B. 317 Williams, 2 C. & K. 1001 1 W. Bl. 95 Winstanley, 1 Cr. & J. at p. 444 Wood, L. E. 4 Q. B. 559 . Woodrow, 15 M. & W. 404 Woolstanton, 1 Bott. & Const. 707 Worcestershire, J.J., 5 M. & S. 457 Worksop Local Board, 5 B. & S. 951 Wright, 1 A. &Z. 437— 441 . 1 Burr, at p. 544. . Wycombe Ey. Co., L. E. 2 Q. B. at pp. 321 322 York, Archbishop of, Willes, 533 York, J.J., 1 A. & E. at p. 834 . York and North Midland Ey. Co., 1 E. & B, 178, 858 Yorkshire, East Eiding, J. J., 1 Dougl, 192 PAGE 290, 303 198 222 38 133 53 164 7 13 70 182 237 58 118 168 344 116 106 186 313 121 195 238, 273 122 141 254 212 311 59, 211 41 74, 76 106 38 232 203 133 Digitized by Microsoft® liv TABLE OF CASES. H — Roo. E. V. Younger, 5 T. E. 449 Eadnorshire County Eoads Board v. Evans, 3 B. & S. 400 Ealston v. Hamilton, 4 Macq. at p. 408 Eamsden v. Gibbs, 1 B. & C. 319, 324 — V. Lupton, L. E. 9 Q. B. 17, 32, 33 Eandolpb v. Milman, L. E. 4 C. P. 107—116 Eanson v. Dundas, 3 Bing. K". C. 556, 568 569 Easlileigh, Ex parte, L. E. 2 CL D. 9 Eathbone v. Munn, 9 B. & S. 712, 713 Eawson v. Bargue, Styles, 81 Eedmond v. Smith, 7 M. & G. 457 Eedpath v. Allen, L. E. 4 P. C. at p. 517 Eeed v. Coker, 13 C. B. 850 . V. Cowmeadow, 6 A. & E. 661 V. Ingbam, 3 E. & B. 889 . Beeves v. Watts, L. E. 1 Q. B. 412 V. White, 17 Q. B. 995 . Eein v. Lane, 8 B. & S. 90 Eeniger v. Eogassa, Plowd. 13, 18 EestaU v. L. & S. W. Ey. Co., L. E. 3 Ex. 141 Ehodes v. Smethurst, 4 M. & W. at p. 63 Eichards v. Dyke, 3 Q. B. 256, 268, 269 V. Easto, 15 M. & W. 244 Eichardson's case, 2 Story, 571 . Eichter v. Hughes, 2 B. & C. 499 Eidge V. Garlick, 8 Taunt. 424 . Eiley v. Crossley, 2 C. B. 146 . Eitohie v. Smith, 6 C. B. 462 . Eix V. Borton, 12 A. & E. 470 . Eoberts v. Orchard, 2 H. & C. 769 ; 33 L. J. Ex. 65 Eobinson v. Emerson, 4 H. & C. 352 V. Vale, 2 B. & C. 762 Eoe d. Pellatt v. Eerrars, 2 B. & P. Eogers v. Kingston, 2 Bing. 441 Eoles t>. EoseweU, 5 T. E. 528 . EoQsevelt v. Maxwell, 3 Blatchf. C. at p. 547 E. 391 PAGE 149 180 45 254 68 48 56 155 166 128 86 52 98 95 184, 245 29 46 117, 137 128, 135 349 116 47, 75 219, 220 157 61 341 230 82, 85 312 94, 97, 98 320 125 232 66 199 17 Digitized by Microsoft® TABLE OF CASES. Iv Bos — Sha. PAGE Eosse, Eail, v. Wainman, 14 M. & W. 859; 2 Ex. 800 126 Rosseter v. CaUmann, 8 Ex. 361 ... 34 Routledge v. Low, L. E. 3 H. L. 100 . . 33 Eowning v. Goodchild, 2 W. Bl. at p. 910 . 75 Euckmabhoye v. Lulloobhoy Mottiohund, 8 Moore, P. C. 4 125 Eudd V. Scott, 2 Scott, N. E. 631 . . . 95 Ruddy, in the goods of, L. E. 2 P. & D. at p. 331 237 Eusby ?;. ATewsoii, L. E. 10 Ex. at p. 329 . . 152 Eussell V. Ledsam, 14 M. & W. 589 . . . 9 Euther v. Harris, L. E. 1 Ex. D. 97, 100 . . 131, 134 EyaU V. EoUe, 1 Atk. 174 .... 288 v. Eowles, 1 Ves. Sen. 348 .. . 288 St. Leonard's, Shoeeditch, v. Franklin, L. E. 3 C. P. D. 377 St. Pancras v. Battersbury, 2 C. B. N. S. 477 V. Clapham, 2 E. & E. 742 St. Paul's, Warden of, v. The Dean, 4 Price, 65, 79 St. Sepulchre, Ex parte, 4 De G. J. & S. at p. 242; 33 L.J. Oh. at p. 376 . Salkeld V. Johnston, 2 0. B. 756, 757; 2 Ex. 282, 283 ; 1 Hare, 169 ; 1 McIST. & G. 242 106, 272 Saltoun, Lord, v. Adv.-Gen., 3 Macq. 659 Samuel v. ISTettleship, 3 Q. B. at p. 192 Sandiman v. Breach, 7 B. &. C. 96 Sayer v. Dicey, 3 Wils. 60 Scales V. Pickering, 4 Bing. 448 Scott V. Berkeley, 3 G. B. 929—937 V. Legg, L. E. 2 Ex. D. at p. 42 Selmes v. Judge, L. E. 6 Q. B. 724 Sewell V. Taylor, 7 0. E. IS". S. 160 Shaftesbury, Earl, v. RusseU, 1 B. & C. 666 Sharp V. Dawes, L. R. 2 Q. B. D. 26 V. Warren, 6 Price, 131 . Shatwell v. Hall, 10 M. & W. 523 131 73 138 184 340 286, 287 123 103 •182 83 245, 252 14 6 90 130 45 127 76 93 Digitized by Microsoft® Ivi TABLE OF CASES. Sha— Sol. Shaw V. Euddin, 9 Ir. C. L. R 214 . . 48, Sheffield "Waterworks Co. v. Bennett, L. E. 7 Ex, 409, 8 Ex. 196 .. . Shepherd v. Hills, 11 Ex. 67 . V. Sharp, 1 H. & N. 115 Sheppard ». Gosnold, Vaughan, at pp, Shipman v. Henbest, 4 T. E. 109 Short V. Hubbard, 2 Bing. 349 . Shrewsbury, Earl of, v. Beazley, 19 ( 6»1 . V. Scott, 6 C. B 160 . Peerage, 7 H. C. 1 . Shuttleworth's case, 9 Q. B. 651 V. Le Fleming, 19 C. B. K Sickles V. Sharp, 13 Johnson, 498 Simpson v. Blues, L. E. 7 C. P. 290 V. Eeady, 12 M. & W. 740 V. Unwin, 3 B. & Ad. 134 Simson v. Moss, 2 B. & Ad. 543 Slade V. Drake, Hob. 298 . Sniale v. Burr, L. E. 8 C. P. 64 . Smart v. Nokes, 6 M. & G. 911 . Smeetonw. Collier, 1 Ex. 457 Smith V. Bell, 2 Eailw. Cas. 877, 10 M, V. Brown, L. E. 6 Q. B. 729 V. Coffin, 2 H. Bl. 463 . V. Goldsworthy, 4 Q. B. 466 V. Hopper, 9 Q. B. 1005 . V. Lindo, 4 C. B. N. S. 395 ; 5 587 . ■ V. Mawhood, 14 M. & W. 452 V. Shaw, 10 B. & C. 277, 284 V. Wiltshire, 2 Brod. & B. 619 322 Smithett v. Blythe, 1 B. & Ad. 509 Snelgrove v. Smart, 12 M. & W. 135 Snow V. Phillips, Sid. 220 . Soldier's, The, case, Cro. Car. 71 169, . B. ]sr. g 14, 170 K S S. 687, 703 C. B . 159, 15, 24, &W. 378 K S, 5 Moore, PAGE 245, 275 130 71 220 144, 147 42 291 283 224, 347 15 210 238, 291 233 179 305 253 177 228 68 212 50 115 178 234 29 95 82 84 92 89 303 312 178 258 Digitized by Microsoft® TABLE OF CASES. Ivii Sou — Str. PAGE Southampton Bridge Co. v. Local Board of South- ampton, 8 E. & B. at p. 804 . 44 Dock Co. V. Richards, 1 M. & G. 448 211 Spackman, Ex parte, 1 M. K & G. 170 . . 181 Springfield, Inh., v. Connecticut Eiver Road Co 4 Cush. 63 Squire, Ex parte, L. E. 4 Ch. 47 Stacey v. Lintell, L. R. 4 Q. B. D. 291 Staines v. Wainwright, 6 Bing. N. C. 174 . Standen v. University of Oxford, Sir W. Jones, 1 Staner, Ex parte, 2 De G. M. & G. 263 Stanilandw. Hopkins, 9 M. & W. 192 Stanley v. Wharton, 9 Price, 301 Stansfeld v. Cubitt, 2 De G. & J. 222 . Stead V. Carey, 1 C. B. 516, 522 Steamship Co. v. Joliffe, 2 Wallace, 450 Steavenson v. Oliver, 8 M. & W. 234—243 . Steele o. ISTorth Met. Ry. Co., L. R. 2 Ch. 237 Stephens v. McCargo, 9 Wheaton, 902 V. Robinson, 2 Cr. & J. 209 . V. Watson, 1 Salk. 45 Stephenson v. Higginson, 3 H. L. C. 686 Stevens v. Duckworth, Hardres, at p. 344 . V. Evans, 2 Burr, at p. 1157 . V. Gourley, 7 C. B. N. S. 99 . V. Jeacocke, 11 Q. B. 731 Steward v. Greaves, 10 M. & W. 719 . Stockdale v. Hansard, 9 A. & E. 1 Stockton, &c., Ry. Co. v. Barrett, 11 CI. & Fin. 590 V. Leeds Ry. Co., 2 Ph. 670 Stokes V. Salomons, 9 Hare, at p. 79 . Stoughton V. Baker, 4 Mass. 522, 528 Stourbridge Canal Co. v. Wheeley, 2 B. & Ad. 792 Stowel V. Zouch, Plowd. 365, 366, 369 100, 111, 48 212 237 66 292 162 189 234 328 25, 30, 224 349 270 31 269 82 73 248 115 73 82 73 ,199 11 245 31 30 37 223 177, 277 112 Stracey v. ISTelson, 12 M. & W. 535 ; 13 L. 97 Stradling v. Morgan, Plowd. 204, 205, 206 J. Ex. 191 101, 172, 228, 261 Digitized by Microsoft® Iviii TABLE OF CASES. Str— Tid. Strother v. Hutdiinson, 4 Bing. N. C. 83 Sturla V. Preccia, L. E. 12 Ch. D.at p. 432 Supervisors'!). U. S., 4 Wallace, 435 . Surtees v. Ellison, 9 B. & C. 752 Sussex Peerage, 11 CI. & Fin. 143 . Swan V. Blair, 3 CI. & Fin. 632, 633 . Swansea Canal Proprietors v. Great Western E. Co., L. K. 5 Bq. 444 ... . Swanton v. Gool.l, 9 Ir. C. L. K. Q. B. 234. Swinford v. Keble, 7 B. & S. 587 Sylph, The, L. E. 2 A. & E. 24 . PAGE 216 15 201 7, 344 100,111 84 64 107 21 178 Tawnet v. Lynn and Ely Ey. Co., 16 L. J. Ch. 282 Taylor, Re, 10 Sim. 291 . V. Chichester and Midhurst Ey. Co., L. E, 2 Ex. 356, 373 V. Crowland Gas Co., 10 Ex. 293 V. Goodwin, L. E. 4 Q. B. D. 228 V. Humphries, 17 0. B. N. S. 539 V. Parry, 1 M. & G. 619 V. Taylor, L. E. 1 Ch. D., at p. 431 V. U. S., 3 Howard, 197 Teale v. Younge, M'Clel. & Y. 497 . Tennant v. Bell, 9 Q. B. 684 V. Cranston, 8 Q. B. 707 Terrington v. Hargreaves, 5 Bing. 489 Thames Conservators v. Hall, L. E. 3 C. Haven Dock and Ey. Co. v. P. M. & G. 552 . . Theobald v. Crichmore, 1 B. & Aid. 227 Thibault v. Gibson, 12 M. & W. 88 Thompson v. Gibson, 8 M. & W. 281 . w. Harvey, 4 H. & IST. 254 . V- Ward, L. R. 6 C. P., at p. 353 Thomson v. Adv. -Gen., 12 01. & Fin. 1 Thorpe v. Adams, L. E. 6 C. P. 125 v. Coleman, 1 C. B. 990 Tidey v. Mollett, 16 C. B. N. S. 298 . 415 Eose. 222 51 60 82 169 305 15 56 235 122 132 325 165 334 211 89 304 132 226 231 33 330, 337 83 212 Digitized by Microsoft® TABLE OF CASES. lix Tim— TJni. Timms v. "VVilliams, 3 Q. B. 417, 422 Tiulder v. Wandsworth Board, 2 De G. & J. 261, 274 TisdeU ». Combe, 7 A. & E. 788 Toby, Re, 12 Q. B. 694 . Tolson y. Kaye, 3 B. & B. 217 . Tomkins v. Ashby, 6 B. & C. 542 Tomlinson v. Bidlock, L. E. 4 Q. B. D. 230 Towler i\ Ckatterton, 6 Bing. 258 Towns V. Mead, 16 C. B. 123 . Townsend v. Eead, 10 C. B N. S. 308, 30 L. J. M. C. 245 . Trueman v. Lambert, 4 M. & S. 238 Truscott V. Merchant Taylors' Co., 11 Ex. 855 Turner v. Sheffield and Eotherham Ey. Co., 10 M. & W. 434 Turtle V. HartweU, 6 T. E. 429 . Twenty-eight Cases containing Wine, 2 Benedict, 63. Two Hundred Chests of Tea, 9 Wheaton, at p. 439 Twycross «. Grant, L. E. 2 C. P. D. 469, 530, 531 Twyne's Case, 3 Eep., at p. 82a, 1 Sm. L. C, at p. 5 . Tyson i;. Thomas, M'Clel & Younge, 119 . PAGE 45,47 60 184 153 232 244 154 160 242 130 278 29 112 235, 236 235 124 172 230, 234 81 UuMPHELBT V. M'Lean, 1 B. & Aid. 42 . . 91 Underhill v. Ellicombe, M'Clel & Younge, 450 . 73 V. Longridge, 29 L. J. M. C. 65 . . 120 United Society v. Eagle Bank, 7 Conn., at p. 469. 260 United States v. Bassett, 2 Story, 389 . . 4, 113 V. CoIHer, 3 Blatchf. C. C. E. 325 261 V. Dickson, 15 Peters, 141, 163 . 246, 303 V. Eisher, 2 Cranch, 386, 399 . 114, 152, 275 V. Greene, 4 Mason, 427 . . 37 V. HartweU, 6 Wallace, 385 . . 258 V. Helen, The, 6 Cranch, 203 . 269 Digitized by Microsoft® Ix TABLE OF CASES. Tlni— Wan. ^^<^^ United States v. Hewes, Crabbe, 307 . . . 37, 261 u Hoare, 2 Mason, 311 . . 37 V. Kirby, 7 Wallace, 482 . . 128 V. Morris, 14 Peters, 464 . . 257, 259 V. Morse, 3 Story, 87 . . • 238 V. Eecorder, Ship, 1 Blatchf. C. C. E. 218 . . . 144, 146 V. Sharp, Peters, C. C. E. 118 . 247 V. Sheldon, 2 Wheat. 119 . . 182 - V. Starr, Hempstead, 469 . . 159 V. Stern, 5 Blatchf. C. C. E. 512 . 121 V. Ten Cases of Shawls, 2 Paine, 162 252 V. Wigglesworth, 2 Story, 369 . 245 V. WiUiams, 1 Paine, 261 . . 157 ». Wiltberger,5 Wheat., at pp. 95, 96 257 V. Winn, 3 Sumner, 209 . . 257, 259 TJrquhart v. Urquhart, 1 Macq., at p. 662 . . 157 Vallance v. Siddel, 6 A. & E. 932, 2 K & P. 78 . 174 Vansittart v. Taylor, 4 E. & B. 910 . . . 158 Vaux V. VoUans, 4 B. & Ad. 525 .. . 250 Veitch V. Trustees of Exeter Eoads, 8 E. & B. 986 68 Venour's Settled Estates, Ee, L. E. 2 Ch. D., at p. 525 294 Voorhees v. Bank of U. S., 10 Peters, at p. 471 301 Wainwright, Ee, 1 PhiUips, 258 Walker v. London and Blackwall Ey. Co. 3 Q. B, 744 V. Eichardson, 2 M. & W. 889 Wallace v. Att.-Gen., L. E. 1 Ch. 1 . V. Smith, 5 East, 115 . Walsingham's case, Plowd. at p. 565 . Wansey v. Perkins, 7 M. & G. at p. 142 119 222 289 33 92 302 113 Digitized by Microsoft® TABLE OF CASES. Ixi War — Wei. page Warburton v. Loveland, 1 Hud. & Brooke, 648 111, 113, 117 Ward V. Gray, 6 B. & S. 345 . . . . 126 V. Scott, 3 Camp. 284 ... . 54, 177 v. SneU, 1 H. Bl. atp. 13 . ... 231 Wards, case out of Court of, Cro. Car. at p. 34 . 246 Ware v. Grand Junction Waterworks Co., 2 E. & M. 470 31 V. Eegent's Canal Co., 28 L. J. Ch. 153 . 106 Warns ?;. Varley, 6 T. E. 443 . . . . 60 Warren v. Windle, 2 East, 205—212 ... 270 Manufacturing Co. v. Etna Insurance Co., 2 Paine, 502 156 Warrington, Ex parte, 3 De G. M. & G. 159, 171 328 V. Furbor, 8 East, 242 . . . 244 Warwick v. White, Bunbury, 106 . . . 244 Waterford, Earl of. Claim, 6 CI. & Fin. 172 . 150 Eailway Co. v. Logan, 14 Q. B. 672, 679, 680 25 Waterhouse v. Keen, 4 B. & C. 200 . . . 90, 130 Waterlow v. Dobson, 27 L. J. Q. B. 55 . . 260 Watervliet Turnpike Co. v. M'Kean, 6 Hill, 616 . 121 Watson V. Martin, 34 L. J. M. C. 50 . . . 250 Waugh V. Middleton, 8 Ex. 352 . . . 114, 159, 165 Wayman v. Southard, 10 Wheaton, at p. 30 . 301 Weale v. West Middlesex Waterworks Co., 1 Jac. & Walk. 371 24, 105 Wear Commissioners v. Adamson, L. E, 546, 554, 2 App. Cas. 764, 765 Webb V. Bird, 10 C. B. K S. 268, 13 841 — — V. Manchester and Leeds Ey. Co, Cr. 116 Wedge V. Berkeley, 6 A. & E. 663 Welden v. Vesey, Poph. at p. 175 Waller v. Toke, 9 East, 364 Welmont's case, 20 Vermont, 653 WeUs V. Iggulden, 3 B. & C. 186 4 Myl. & 1 Q. B. D. 20,109,114,137,224 C. B. K S. 180 222 88 70 88 157 290, 303 V. Porter, 2 Bing. K C. 722, 3 Scott, 141 . 34 Digitized by Microsoft® Ixii TABLE OF CASES. Wes— Wil. West V. Francis, 5 B. & Aid. 737 Weston V. Arnold, L. E. 8 Ch. at p. 1089 . Wetherell v. Jones, 3 B. & Ad. 221 . Weymouth, Mayor of, v. Nugent, 6 B. & S. 28—35 Wharton Peerage, 7 H. L. C. at p. 13. Whatman v. Pearson, L. E. 3 C. P. 422 Wheatley v. Lane, 1 Wms. Saund. at pp. 244, 245 • V. Thomas, 1 Lev. at p. 75 . White V. Boot, 2 T. E. 274. V. Feast, L. E. 7 Q. B. 353 Whitehead v. Smithers, L. E. 2 C. P. D. 553 Whiteley v. Chappell, L. E. 4 Q. B. 147 . Wigton, Overseers, v. Snaith, Overseers, 16 Q. B, 496 Wilcox V. Smith, 4 Drewry, at p. 49 . Wilkinson v. Colley, 5 Burr, at p. 2698 V. Gibson, L. E. 4 Eq. 162, 167 V. Leland, 2 Peters, 627 . Williams v. Beaumont, 10 Bing. at p. 272 . V. Drewe, Willes, 392 . V. Evans, L. E. 1 Ex. D. 277 V. Golding, L. E. 1 C. P. 69 V. G. W. E. Co., 10 Ex. 15 V. Lear, L. E. 7 Q. B. 285 . V. Newton, 14 M. & W., at p. 757 V. Pritchard, 4 T. E. 2 v. Eoberts, 1 C. M. & E. at p. 680 1). Eougheedge, 2 Burr. 747 . V. Sanger, 10 East, 66 V. Smith, 2 H. & N. 443, 4 H. & N". 559 V. Swansea Canal Navigation Co., L. E. 3 Ex. 158 Willion V. Berkley, Plowd. 223, 231 . . 37^ Willison V. Watkins, 3 Peters, 54 Wihnot V. Eose, 3 E. & B. 563 . Wilson V. :KnubIey, 7 East, at p. 134 . V. Mayor of Halifax, L. E. 3 Ex. 114 V. Eankin, L. E. 1 Q. B. 162 PAGE 22 32 85 37 15 94 241 29 341 171 23, 324 250 119 249 234 49 29 278, 281 167 120 183 62 125 148 334 118 268 244 159 64, 208 38, 41, 100 232 274 57, 214 91 86 Digitized by Microsoft® TABLE OF CASES. Ixiii Wil— You. PAGE Wilson V. "West Hartlepool Eail. Co., 2 De G. J. & S., at p. 496 .... 227 V. Wilson, L. E. 2 P. & D. at p. 347 . 115 Wiltes Peerage Claim, 4 H. L. C. 126 . . 11 Wilton V. Chambers, 7 A. & E. 532 . . . 147 Wimbish v. Tailbois, Plowd. at p. 59 . . . 240 Winchiester's Case, 3 Eep. at p. 4 a . . . 236 Windliam v. Cbetwynd, 1 Burr, at p. 419 . . 147 Winn V. Mossman, L. E. 4 Ex. 292—300 . . 174, 285 Wolton V. Gavin, 16 Q. B. 48, 64 . . . 210 Wolverhampton New Waterworks Co. v. Hawkes- ford, 6 C. B. N. S. 356 . . . . . . 72, 75 Wood, Ee, L. E. 7 Ch. at p. 306 .. . 21 V. Eiley, L. E. 3 C. P. 26 . . . 155 V. U. S. 16 Peters, 342 . . . . 326 Woodward v. Cotton, 1 C. M. & E. 44 . . 220 V. Sarsons, L. E. 10 C. P. at p. 746 . 205 . V. Watts, 2 E. & B. 452 . . . 109, 115 Worsley v. South Devon EaU. Co., 16 Q. B. 539 300 Worthv. Bndd, 2 B. & Ad. 172 ... 93 Wray v. EUis, 1 E. & E. 276 . . . . 335 Wright V. Greenioyd, 1 B. & S. 758, 762 . . 160 V. Hale, 6 H. & K 227 . . . . 166 V. Pearson, L. E. 4 Q. B. 582 . . 132 V. Wales, 5 Bing. 336 ... . 95 Wrightup V. Greenaore, 10 Q. B. 1 . . . 320 Wynn v. Shropshire Eail. Co., 5 Ex. 420 . . 29 Wynne v. Middleton, 1 Wils. at p. 126 . . 235 Tale v. The King, 6 Brown Pari. Cas. 27, 30 Yarmouth Corporation v. Simmons, L. E. 10 Ch, D. 518, 527 York, Dean and Chapter v. Middleborough, 2 Y, & J. 196 York, Matter of Dean of, 2 Q. B. 34 . Yorke v. Chapman, 10 A. & E. 207 . Young V. Cook, L. E. 3 Ex. D. 101 . 210 48 239, 281 106 76 124 Digitized by Microsoft® Ixiv TABLE OF CASES. You— Zol. PAGE Young V. Grattridge, L. E. 4 Q. B. 166 . . 185 V. Eishworth, 8 A. & E. 470 . . . 165 Ystalfera Iron Co. v. Neath & Brecon Eail. Co., L. E. 17 Eq. 142 140 ZoLLVERBiN, The, 1 Swab. 96 ... . 32 ERRATA. Page 70 (note/) /or Crowther's case read Crouther's case. „ 94 (note/) /or 13 C. B. read 13 0. B. N. S. „ 113 (note r) /or 3 H. & N. read 2 H. & N. „ 135 (note n) for 6 T. R. 154 read 6 T. E. 194. „ 187 (note d) for R. v. Cambrian Rail. Co.'s scheme read Be Cambrian Rail. Co.'s scheme. Digitized by Microsoft® CHAPTEE I. STATUTES AND STATUTE LAW. Statute Law has usually been defined as the statute written law, lex scripta, in contrast with Common usual iie- Law, which has received the name of the unwritten law, lex noil scripta (a). But this definition is manifestly incomplete and unsatisfactory. It is open to the grave objection that it substitutes a comparison of two things, not having necessarily such a relation to each other, for the exact description of the one thing Avhich it professes to supply. By thus putting Statute Law in antagonism with Common Law, it virtually as- sumes that the leading characteristic of the one is opposed to the leading characteristic of the other. Regarding Common Law as unwritten, and therefore residing solely in the breasts of the judges, it would teach us to consider Statute Law as written, and therefore placed above all the changes and chances of judicial interpretation. In the one case, we boast of implies elasticity ; in the other, we look for certainty, statute. Yet the most cursory examination of the Statute cerrain.. (a) Hale's Hist, Common Law, 21 ; 1 Blackstone, 63 ; 1 Kent's Commentaries, 446. B Digitized by Microsoft® 2 STATUTES AND STATUTE LAW. Book, and of the cases which have been decided upon the construction of statutes, will show that this result cannot be expected, and has never been attained. " Sure I am," said Lord Bacon in his Proposal for Amending the Laws of England {h), " there are more doubts that rise upon our statutes, which are a text law, than tipon the Common Law, which is no text law." The experience of nearly three centuries has fully justi- fied this saying, and shown the prophetic insight of its author. But if such doubts prevailed in comparatively early times, before the framers of statutes had passed from extreme conciseness to extreme diffuseness, from the enunciation of general principles to an enumeration of particular instances ; before successive Parliaments attempted by compromises to cure the evils of a past legisla- tion which they were neither bold enough nor strong enough to vindo ; before succeeding genera- tions of judges sought by refined and subtle distinc- tions to minimise the efiect of decisions which they woTild not overrule, but in which they could not acquiesce ; what words can express the feelings of perplexity with which a modern observer must approach the subject 1 Causes of The doubts and difficulties which chieflv tend its iinoer- . , J ~" "■ tainty. to Create u:ncertamty in the Statute Law are due to several causes. LtS'n of "^^^ ^^^^ °^ ^^^^®' *^0"g^ iiot the most fruitful, language, is the imperfectiou of all human language. The greatest care, the highest art, the fullest mastery (b) Bacon's Works, by Basil Montagu, vol. v., p. 34(^. Digitized by Microsoft® STA7UTES AND STATUTE LAW. 3 of diction, have not always availed to banish obscure passages from the works of our classical authors. Even if a writer has a clear conception of the thoughts which he wishes to express, and chooses with extreme accuracy the precise words which convey his meaning, he cannot be certain that his readers will understand those words in the same sense as that in which he has used them. " There is no word in the English language which does not admit of various interpretations. It is, no doubt, frequently found that the imperfection of language leads to litigation on the construction of statutes and the meaning of terms " (c). Words which when fii-st received into our language had a definite meaning, and which retained that meaning so long as their origin was regarded, have lost their primary sense by passing from the few to the many, from the works of scholars to the talk of the people. Sometimes the primary seiTse of the word survives the change, but is used by purists only. Some- times the popular use gives way to the necessities of some art or trade, and the word acquires a tech- nical meaning. While language itself brings in these elements of doubt and is subject to such constant change, it is difficult to accept a defini- tion which would give Statute Law the character of certainty. We come, however, to a much more fruitful 2. Lau- source of trouble when we consider the language style of and style which have been adopted by the framers them-^^ of our statutes. The draftsmen who have pre- ^®^^^°" (c) R. V. SImn, Bell's Crown Cases, at p. 134, fer Pollock, C.B. B 2 - -. Digitized by Microsoft® STATUTES AND STATUTE LAW. pared the bills submitted to Parliament, the mem- bers of Parliament who have altered every clause in Committee, may at one time have formed a clear conception of the thoughts which they wished to express, but have very seldom chosen apt words to convey their meaning. As a necessary result of this we hear complaints from every quarter. Lord Campbell speaks of " an ill-penned enactment, like too many others, putting judges in the embarrass- ing situation of being boiind to make sense out of nonsense, and to reconcile what is irreconcile- able" ((i). Mr. Justice Story, dealing with the suggestion that the Legislature had used super- fluous language, words which were either unneces- sary or tautological, observes, " I believe that there are very few acts of legislation in the Statute Book, either of the State, or of the National Government, or of the British Parliament, which do not fall within the same predicament, and are not open to the same objection ; or, if you please, to the same reproach. The trutli is, that it arises sometimes from loose and inaccurate habits of com- position of the draftsman ; sometimes from hasty and unrevised legislation \ but more frequently from abundant and, perhaps, over-anxious caution" (c). And in the First Keport of the Statute Law Com- missioners, pubhshed in 1835, we find a concise summary of the defects of our legislation. " The imperfections in the Statute Law arising from mere generality, laxity, or ambiguity of expression, are too numerous and too well known to require (rf) Fell V. Burchett, 7 E. & B. at p. 539. (e) United States v. Bassett, 2 Story, at p. 404. Digitized by Microsoft® STATUTES AND STATUTE LAW. 5 particular specification. They are the natural result of negligent, desultory, and inartificial legislation ; the statutes have been framed extem- poraneously, not as parts of a system, but to an- swer particular exigencies as they occurred" (/). It would be easy to collect similar or even stronger How far expressions of blame, and it might be interesting framers of to inquire in what proportions that blame shoiild ^ ^ '^ ^^• be distributed between the draftsman and the Legislature. To the first we probably owe the faults which lie on the surface, the redundant phrases, the verbiage, the involved and cumbrous sentences which disfigure the style of our statutes. We find a most significant commentary upon these defects in the Report of a Committee of the House of Commons, presented in May, 1796. Under the heading of " Prolixity and Tautology," we read that these two characteristics of our statutes began in the reign of Henry the Eighth. The report selects some glaring instances of prolixity, and then adds, with significant brevity, " Instances of tautology, passim" (g). We must not, however, forget that the path of a parliamentary draftsman is beset with difficulties. His duty is to draw a biU which may pass ; it is for others to consider whether or no the Act will work. A clear expression of the object and intention of the framer of a bill would often provoke an opposition which is lulled to sleep by studied ambiguity. Severely as the language of (/) Report, p. 16. (g) Report on Temporary Laws : Appendix to Mr. Bdlenden Ker'g First Report on Proceedings of Board for Revision of Statute Law, 1853, p. 202. .. Digitized by Microsoft® 6 SJATUIES AND STATUTE LAW. our Acts of Parliament has been criticised by the judges, more than one of them has gallantly taken up the defence of the draftsman. " 1 am sure," says Lord St. Leonards, "we ought to make great allowances for the framers of Acts of Parliament in these days : nothing is so easy as to pull them to pieces, nothing is so difficult as to construct them properly as the law now stands " (^). The words of Bramwell, L.J., are still more forcible: "People who draw Acts of Parliament are very commonly found fault with by those who never drew an Act themselves. I suppose it is impossible to foresee all the difficulties that will arise, and to use exactly precise words — to say nothing of the difficulties under which Acts are drawn up " (i). So, too, it is said by Cleasby, B. : "It seldom happens that the framer of an Act of Parliament or the Legislature has in contemplation all the cases which are likely to arise, and the language, therefore, seldom fits every possible case " (A;). Hoivfarto Although in the language just quoted the same lature. excuso is made for the Legislature as for the drafts- man, there is something savouring of disrespect in such a suggestion. The Legislature, which, in theory and within its own province, is omnipotent, ought not to find any difficulties insuperable. Yet to the Legislature itself are due those graver faults than mere faults of style, which often paralyze the work- ing of our statutes. Hasty and Ul-considered Acts aimed at a partial evil, and sweeping away or (7i) O'Flalierty v. M'Dowell, 6 H. L. C. at p. 179. (i) B. V. Monck, L. K. 2 Q. B. D. at pp. 552—3. (k) Scott V. Leffg, L. E. 2 Ex. P. at p. 42. Digitized by Microsoft® STATUTES AND STATUTE LAW. 7 tampering with some vital principle of law, amend- ing Acts which have proved unintelhgible made worse by reamendment, familiar words rendered strange by interpretation clauses, local Acts extended in part to the whole country, and again restricted in part by subsequent efforts of piecemeal legislation {I), are evils of constant occurrence, some of them to be found in each yearly volume of the statutes. Such evils called forth Lord Tenterden's happy adaptation from Horace, the saying that the Legislature, if not like a man on his death-bed, whose last wiU is to be favourably construed because he is inops consilii, may be called magnas inter opes inops (m). Such evils, perhaps, led an earlier judge to remark of a particular piece of legislation, " I am inclined to think the Parliament purposely penned the Act in this obscure manner not to disoblige their constituents, many of whom are tradesmen " {n). A third cause of uncertainty is to some extent 3. Judicial the consequence of the two with which we have tation. dealt, and this brings more clearly to our notice the incompleteness of the usual definition. That definition confounds two things which are in reality distinct from each other. It treats the statutes themselves and Statute Law as identical. The statutes themselves may be described as written (l) See the remarts of Blackburn, J. , in R. v. Overseers of Walcot, 2 B. & S. at p. 568. (m) Sm-tees v. Ellison, 9 B. & C. at pp. 752—3. In) Buxton v. Mingay, per Batliurst, J., 2 Wilson, at p. 73. " Every now and then Parliament arrives at a conclusion which is designedly- left in ohscuiity ."— Sir J. Stephen, Evidence before Select Committee on Acts of Parliament, 1875. Digitized by Microsoft® 8 STATUTES AND STATUTE LAW. laws, but an essential part of Statute Law is that which is not written, which is elastic, which resides in the breasts of the judges, the method by which statutes are to be interpreted. The rules for the construction of statutes which have been laid down at different times give scope for the widest variety. It is hardly necessary to refer to the liberal con- struction of some statutes and the strict construc- tion of others ; to the manner in which words of permission are rendered imperative, and words of command are treated as if they were directory ; to the cases in which words have been transposed, inserted, or omitted, read in a technical sense, or in a sense new to the English language; to the assumed necessity for express words in some instances, and the large effect given by implication in others ; to the many other modes by which the Courts have striven to do justice in particular cases while pro- fessing to ascertain the intention of the Legislature. If language were certain, if the intention of the Legislature were clearly expressed, there would be no necessity, as there would be no room, for these varieties of interpretation. But as things now stand the principles upon which statutes are to be construed form the most important part of our examination of Statute Law, and no definition would be complete which did not take this fact into consideration. statute Statute Law may, we think, be properly defined suggested as the will of the nation, expressed oy the Legisla- e nition. ^^^^^ expouudcd by Courts of Justice. The Legis- lature, as the representative of the nation, expresses the national will by means of statutes. Those Digitized by Microsoft® STATUTES AND STATUTE LAW. ' 9 statutes are expounded by the Courts so as to form the body of Statute Law. The laws of England draw a clear and broad Distmo- distinction between legislative and judicial func- between tions. As it is the work of the Legislature to l^i^^-^J express the will of the nation, and to enact or ^j^J^g"'"'" declare what for the future shall be the law of the country, so it rests solely with the judges to in- terpret what is so expressed, and to give that law its full operation. "To declare what the law is or has been is a judicial power; to declare what the law shall be is legislative " (o). It is not for the Legislature to construe the law, even if the Courts may have mistaken its intention. " The province of the Legislature is not to construe but to enact, and their opinion — not expressed in the form of law as a declaratory provision would be — is not binding on Courts, whose duty is to expound the statutes they have enacted" (p). On the other hand, it is not for the judges to alter the law, even if they see cause to doiibt the wisdom or justice of any particular provision. " The judges are not to make the law what they may think reasonable, but to expound it according to the common sense of its words" (g'). "I dread very much the consequences if once the Judicature begins to trespass on the province of the Legislature, and to pronounce not what the enactment is but what it ought to be. If we do, I do not know where we are to stop " (r). (o) Og3,(n v. Blackledge, 2 Qrancli, at p. 276. (^) liussdl V. Ledsccm, 14 M. & W. at p. 589, per Parke, B. (q) Biffin v. Yorke, 6 Scott, N. R. at p. 235, jwer Cresswell, J. (»•) Eastern Counties Bail. Co. v. Marriage, 9 H. L. C. at p. 40, ^jer Digitized by Microsoft® 10 STATUTES AND STATUTE LAW. What is a "We havG Said that the will of the nation is expressed by means of statutes (s); that is, by means of written laws enacted by and with the assent of the three branches of the Legislature. The necessity for the agreement of all three branches of the Legislature has been laid down in early writings of authority, and has received fresh illus- tration in modern times. "There is no Act of Parliament but must have the consent of the Lords, the Commons, and the royal assent of the King," says Lord Coke in one place (t) ; and in another he expresses the same principle more fully : " If an Act be made by the King and the Lords spiritual and temporal, or by the King and Commons, this bindeth not, for it is no Act of Parliament ; for the Parliament concerning making or enacting of laws consisteth of the King, the Lords spiritual and temporal, and the Commons ; and it is no Act of Parliament vmless it be made by the King, the Lords and Commons " (u). In the legislation of early times, indeed, the assent, either of the Lords Blackburn, J. A different theory prevails in tlie United States, where the Courts have to decide how far a new law is in harmony with the Constitution. " The fundamental laws of the United States cannot be altered without a reference to the people at large ; and the Acts of Congress, therefore, are subject to be disallowed by the Courts of Justice : " Church Courts and Church Discipline, by Robert Isaac "Wilberforce, Archdeacon of the East Eiding, p. 152. See 1 Kent's Commentaries, 448. (s) " The word ' statute ' has several meanings. It may mean what is popularly called an Act of Parliament, or a code such as the Statute of Westminster the First, or all the Acts passed in one session, which was the original meaning of the word," B. v. Bdke- loell, 7 E. & B. at p. 851, per Lord Campbell, C.J. (<) 4 Inst. 25. (m) 2 Inst. 157—8. Digitized by Microsoft® STATUTES AND STATUTE LAW. 11 apiritiial (cc), or of the Lords and Commons {y), has been presumed, either from the fact that statutes have been entered as such on the Parliament roll, or have been generally received as statutes (a). Thus, the name of a statute has been given to " a point resolved in Parliament by all the earls and barons with one voice that they vs^ould not change the lavs^s of the realm" [a), and the effect of a statute to a charter granted by King Edward the Third, with the assent of the prelates, earls, barons, and the whole commonalty of the realm in the present ParKament summoned at Westminster (&). On the other hand, it has been held that a prayer of the Commons acceded to by the King, with the assent of the Lords temporal, and entered on the placita coronce in Parliament, but not on the ParKament rolls, was not an Act of Parliament (c). The difference between an Act of Parliament and a resolution of one branch of the Legislature was shown in the case of Stockdale v. Hansard {d). The judges of the Queen's Bench refused to give effect to a resolution of the House of Commons which declared that the power of publishing such of its proceedings as it should deem necessary or conducive to the public interest was an essential incident to the constitutional functions of Parlia- (x) 2 Inst. 585—7. (y) 2 Inst. 334. {z) 2 Inst. 639 ; Co. Litt. 98 a, b; Thi Princes Oase, 8 Jlep. 20 b. (a) 2 Inst. 99. (b) Islington Market Bill, 3 CI. & Fin. 513. (c) Wiltes Peerage Claim, L. E. 4 H. L. 126. {d) 9 A. &E. 1; 11 A. &E. 297. Digitized by Microsoft® 12 STATUTES AND STATUTE LAW. ment. They yielded, instant and implicit obedience to a statute which contained a similar recital. What is Down to the year 1849 the only authentic record record of of the statutas of the realm was to be found in the statutes. Parliament roll, which was engrossed upon parch- ment and kept amongst the public records. If any doubt arose as to the correctness of a printed copy of an Act of Parliament, or if two printed copies differed, the Court would refer to the roll, or accept the printed copy which had been ex- amined with it (e). As, however, the Parliament roll was engrossed without punctuation, the help it gave was not always of much value (/'). In 1849 both Houses of Parliament resolved, that for the future each bill, instead of being engrossed, should be printed by the Queen's printer, and that a print on vellum, authenticated by the clerk of the Parliament or by some other proper officer of the House of Lords, should be deposited in the Eecord Tower {g). Legisia- As it is the function of the Leorislature to ture IS 1 • T presumed express the national will by means of statutes, it (e) U. V. Jeffries, 1 Strange, 446. In the United States more regard seems to be paid to the copies which have generally been received as correct than to the original statute. It is laid down in one case that, " Where a law as published has been acknowledged by the people, and receives a harmonious interpretation for a long series of years, and the published law is subsequently recognised by legis- lative authority and adopted as a rule for the future, it is not com- petent for any one to show by reference to an ancient manuscript that such published law was not a true transcript of the original." — Pease v. Peck, 18 Howard, 595. (/) Barrow v. Wadkin, 24 Beav. at p. 330. {g) These resolutions are printed in " The Standing Orders of the House of Commons," 1849, p. 74. Digitized by Microsoft® STATUTES AND STATUTE LAW. 13 is essential that the Legislature should know what to know is the existing state oi the law whenever any statute is passed, and it is always presumed that the Legislature possesses such knowledge (h). This priaciple is somewhat strained when it is stated that the Legislature must be presumed to know the difierence between Chancery and Bankruptcy practice (t) ; but if it is confined within narrower limits it affords a safe rule for our guidance. It is true that the presumption, like most others, is arbitrary, and rests not so much upon fact as vipon expediency. But although in certain instances Parliament has sho^\'n a want of familiarity with existing principles of law, these cases have been treated as exceptional, and have not affected the strength of the presumption. One of the most important consequences of such Effect of .... 1 . 1 1 J • c erroneous a presumption is that an erroneous declaration oi declaration existing law is wholly inoperative. Speaking of°^^^^' an Act which was apparently based upon an erro- neous view of the Law of Partnership, the Privy Council said: — "The enactment is no doubt entitled to great weight as evidence of the law, but it is by no means conclusive ; and when the existing law is shown to be different from that which the Legislature supposed it to be, the im- plication arising from the statute cannot operate as a negation of its existence " [k). Thus it was (Ji) R. V. Walforcl, 9 Q. B. at p. 635; Jones v. Broton, 2 Ex. at p. 332. (i) Kdlock's Case, L. E. 3 Oh. at p. 781, per Selwyn, L.J. Qc) Mollwo V. Court of Wards, L. R. 4 P. C. at p. 437. See, too, Ea/rl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 141, per Cockburn, Digitized by Microsoft® 14 STATUTES AND STATUTE LAW. held tliat an Act of the 3rd year of James the First, which erroneously recited that sewers, streams and watercourses, where no passage of boats was used, and where the water did not usually ebb and flow, were not under the survey of the Commission of Sewers, nor of the statute made for sewers in the 23rd year of Henry the Eighth, did not take away the jurisdiction which the Act of Henry the Eighth had in fact given to the Commissioners over a sewer above the ebb and flow of the tide (Z). Effect of Another consequence of this presumption appears in the effect given to recitals. It is said by Lord Campbell («^), in a passage cited with approval by Lord Chelmsford (^i), that " a mere recital in an Act of Parliament, either of fact or law, is not con- clusive ; and we are at liberty to consider the fact or the law to be different from the statement in the recital." If an Act of Parliament recites that a road is situated in a certain parish (o), that a certain town is a borough (p), that a person is a member of a company (g'), that a prior tenant for life of an estate is dead (r), or that a person has C.J. ; Ex parte Lloyd, 1 Sim. N. S. at p. 250, per Lord Cranworlh, V.-C. ; Mitcalfe v. Hanson, L. E. 1 H. L. at p. 250, per Lord Craii- worth, C. (0 Dore V. Ch-aj/, 2 T. E. 358. (m) B. V. HaugUon, 1 E. & B. at p. 516. (m) Jones V. Mersey Docks, 11 H. L. C. at p. 518; 20 C. B. N. S. at p. 143. (o) R. V. HaugUon, 1 E. & B. 501. {p) B. V. Greene, 6 A. & E. 548. Iq) Scott V. Berkeley, 3 C. B. 925. (»•) Oowell V. Chambers, 21 Beav. 619. Digitized by Microsoft® STATUTES AND STATUTE LAW. 15 been attainted of treason (s), the Court ■will not act upon such recitals without further evidence, or will allow them to be contradicted. The highest value which was ever put upon such recitals was their recognition as evidence of the facts contained in them {t) ; but this sanction was denied them when they formed part of private Acts of Parlia- ment, which were held to be binding upon none save parties and privies iii). The reason for attach- iog no greater weight than this to the recitals in Acta of Parliament is given in an early case : — " This recital cannot be taken to proceed but upon information, and the Court of Parliament may be misinformed as well as other Courts ; none can imagiue they would purposely recite a false thing to be true . . . From hence it follows that they do not intend any one to be concluded by such recital grounded upon falsehood, for he who says to the contrary affirms that their intention is to oppress men wrongfully " {x). With reffard to recitals which are inaccurate in May alter PI • -11 the law. point 01 law we must bear m mmd that the power of declaring what the law shall be for the future includes the power of altering the law, and there- fore an Act which is erroneous in its recital of existing principles may become accurate by (s) Ewrl of Leicester v. Heydon, Plowd. 384, 398. (0 E. V. Sutlon, 4 M. & S. 532 ; B. v. Berenger, 3 M. & S. 67. {u) Brett V. Beals, Moody & Malkin, 416 ; Taylor v. Parry, 1 M. 1 c is not to be be made the subject oi guess-work or oi specu- guessed at. lation, nor is it to be inferred from any other materials than those which are found within the statute. The Courts are not to " fish oiit what may possibly have been the intention of the Legislature " (n), or to speculate on the intention of the Legislature when the words it has used are plain (o), or to draw any general inference from the nature of the objects dealt with by a statute (j)), or from a consideration of what might have been wise and prudent {q), or of what would have been done if an existing state of things had been con- templated by the Legislature (r), or to extend the language of a statute beyond its natural meaning for the purpose of including cases, simply because {L) Pocock V. Pickering, 18 Q. B. at pp. 797, 798, per Coleridge, J. (m) Logan v. Earl Courtovm, 13 Beav. 22 ; 20 L. J. Oh. 347. (?i) Crawford v. Spooner, 6 Moore'a P. C. at p. 9, per Lord Brougham. (o) Samuel v. Nettleship, 3 Q. B. at p. 192, per Patteson, J. ; Holt V. Miers, 5 M. & W. at p. 173 ; iJ. v. Latimer, 15 Q. B. at p. 1080, per Coleridge, J. {p) Fordyce v. Bridges, 1 H. L. 0. 1. (q) Hwmfray v. Scroope, 13 Q. B. pp. 612, 513. (r) R. V. Glamorganshire Canal Co., 3 E. & E. at p. 200. Digitized by Microsoft® 104 THE CONSTRUCTION OF STATUTES. no good reason can be assigned for their exclu- sion (s). "I cannot concede," says Coleridge, J., " that we are at liberty upon any ground what- ever to add a new term to the statute. In saying this I am not unmiDdful of the dicta to be found in our books, nor of decisions upon old statutes which seem to warrant a more free dealing with the written law ; and whenever Acts of Parliament shall again be framed with the generality and con- ciseness with which the Legislature spoke some centuries since, it may be fit to consider the sound- ness of that principle of interpretation which they involve ; but it is enough to say that it is wholly inapplicable to a modern statute, in which the Legislature is careful to express all it intends in so many words that to go beyond their necessary implication is to make, not to interpret, law. The principle, then, on which I rely will not let in the consideration of particular cu'cumstances in each case, or a regard to a greater or less degree of con- venience, a more or less complete effect to be given to the presumed intent of the Legislature. No- thing, in short, which is founded on what the Legis- lature might better have done, or simply even what the Legislature intended ; the sole legitimate in- quiry is, I conceive, what intention is to be found in the words of the Act, expressed or implied ; unless by words written, or words necessarily im- plied, and therefore virtually written, the intention has been declared, we cannot give effect to it" (i). Acting upon the principle thus stated, the Courts (5) Benn v. Reid, 10 Peters, 524 ; Ogien v. Stronff, 2 Paine, 584. («) Gwynne v. Bwnell, 7 CI. & Fin. at p. 607. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 105 have felt constrained to give the words of statutes their natural meaning, even when there was the strongest ground for supposing that such a con- struction was not consonant with the intention of the Legislature {u). In one case it was indeed suggested that if the words of an Act were un- grammatical and insensible, the Court might put such a meaning upon them as it conjectured they were originally intended to bear (cc). But at other times a stricter rule has prevailed, and it has been held that where the words of an Act are useless and incapable of a meaning, and an alteration of those words would probably express what the Legislature intended, the Court cannot alter the words or supply the meaning (y). " We cannot aid the Legislature's defective phrasing of the Act," said Lord Brougham, in words similar to those which had been used by Lord Eldon (2) ; "we cannot add and mend and by construction make up deficiencies which are left there" («). For the same reason the intention of the Legis- Not to be lature is not to be inferred from any external evi- Jrom''^'* dence. If a statute is not clearly worded, its Par- g^jj™^^ liamentary history is "wisely inadmissible" to explain it (6). The Court cannot consider wliat (it) R. V. Commissioners of Thames and Isis Navigation, 5 A. & E. at p. 816, per Lord Denman, C.J. ; Nowell v. Mayor of Worcester, 9 Ex. at p. 465, per Pollock, C.B. {x) Doe d. Davenish v. Moffatt, 15 Q. B. at pp. 263, 264. (y) Green v. Wood, 7 Q. B. at p. 185, per Lord Denman, O.J. (a) Weale v. West Middlesex Waterworks Co., 1 Jac. & Walk, at p. 371. (a) Crawford v. Spooner, 6 Moore, P. C. at p. 8. See, too, R. v. Mabe, Inhabitants, 3 A. & E. at p. 534, per Lord Denman, C.J. (i) R. V. Hertford College, L. R. 3 Q. B. D. at p. 707. Digitized by Microsoft® 106 THE CONSTRUCTION OF STATUTES. was the intention of tlie member of Parliament by whom any measure was introduced (c). It cannot look at the reports of commissions which preceded the passing of statutes, and upon which those statutes were founded. Thus it was held that the reports and recommendations of the Real Property Commissioners (d), of the Ecclesiastical Commis- sioners (e), of the Common Law (/) and of the Chancery (g) Commissioners, were not legitimate guides to the construction of statutes. So, too, the plans and sections of intended lines of railway, or of other works which are exhibited during the passage of bills through Parliament, are not, unless they are incorporated by reference in the Acts when passed, to be regarded in their construc- tion (A). The Court cannot look at the history of a clause, or of the introduction of a proviso {%), nor at debates in Parliament (/;), nor at amendments' (c) See M'Master v. Lomax, 2 Myl. & Keen, 32 ; Cameron v. Cameron, ibid. 289. (d) Salkeld v. Johnson, 2 C. B. at p. T56, per Tindal, C.J. ; Farley V. JRo7iha7n, 2 J. & H. 177 ; 30 L. J. C. 239. («) Matter of Bean of York, 2 Q. B. at p. 34. (/) Martin v. Hemming, 24 L. J. Ex. at p. 5 ; 18 Jur. at p. 1004 ; Arding v. Bonner, 2 Jiir. N. S. at p. 764. (ff) Ewart Y. WiUiams, 3 Drew. 21, 24. (A) North British Rail. Co. v. Tod, 12 CI. & Fin. 722 ; B. v. Cale- donian Bail. Co., 16 Q. B. 19 ; Beardmer v. L. and N. IF. Rail. Co., 1 Macn. & G. 112, 1 Hall & Twells, 161 ; Att.-Gen. v. G. E. Rail. Co., L. E. 7 Oh. 475, 6 H. L. 367 ; Edinhnrgh Street Tramways Co. v. Black, L. R. 2 Scotch Ap. 336 ; Ware v. Regent's Canal Co., 3 De G. & J. 212, 28 L. J. C. 153 ; B. v. Wycombe Rail. Co., L. E. 2 Q. B. at pp. 321, 322. (i) Barbat v. Allen, 7 Ex. at p. 616 ; R. v. Capel, 12 A. & E. 382, 411. (k) R. V. Whittalxr, 2 C. & K. at p. 640 ; Gorham v. Bishop of Exeter, 5 Ex. at p. 667. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 107 and alterations made in Committee ij), nor at the principles which govern the Houses of Parliament in passing private bills {in), nor at the policy of the Government with reference to any particular legislation {ii). While, however, this rule is followed, a broad But the distinction must be made between the history of state of the any particular measure, or part of any measure, and remem- * the general history of law and legislation. As it ^^'^®''" is the duty of the judges to construe every statute " in conformity with the Common Law rather than against it, except so far as the statute is plainly intended to alter the course of the Common Law" (o), it is necessary for them to consider what was the course of the Common Law at the time when any statute was passed. " To know what the Common Law was before the making of any statute (whereby it may be known whether the Act be introductory of a new law or affirmatory of the old) is the very lock and key to set open the windows of the statute " {^i). " Although the Court is x\o% at liberty to construe an Act of Parliament by the motives which influenced the Legislature, yet when the history of law and legislation tells (I) Doiiegall v. Layard, 8 H. L. C. at pp. 465, 472, 473 ; Att.-Oen. r. Sillem, 2 H. & C. at pp. 521, 5^2. (m) Ji. V. London Bock Co., 5 A. & E. at p. 175. (n) Hadden v. The Collector, 5 Wallace, 107. (o) R. V. Morris, L. E. 1 C. C. R. at p. 95, per Byles, J. See also Arthur v. Bokenham, 11 Mod. at p. 150, per Trevor, C.J. (p) 2 Inst. 307 ; see also Giles v. Orover, I CI. & Fin. at p. 220, per Lord Tenterden, C.J. ; Fellowes v. Clay, 4 Q. B. at p. 326, per WiUiams, J. ; Att.-Oen. v. Earl Powis, Kay, at p. 207, per Wood, V.-C. ; Swanton v. Goold, 9 Ir. C. L. E. at p. 237, per Lefroy, C.J. Digitized by Microsoft® 108 THE CONSTRUCTION OF STATUTES. the Court, and prior judgments tell this present Court, what the object of the Legislature was, the Court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view of finduig out what it means, and not with a view of extend- ing it to something that was not intended " (g'). The rule on this subject was laid down long ago in words which have been often quoted, and have received the sanction of the greatest authorities. Rules in " It was resolved by the Barons of the Excl)equer," Case.™^ says Lord Coke, "that for the sure and true inter- pretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the Common Law) four things are to be discussed and considered : 1st. What was the Common Law before the making of the Act ; 2nd. What was the mischief and defect for which the Common Law did not provide ; 3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth; and 4th. The true reason of the remedy ; and then the office of all the judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inven- tions and evasions for continuance of the mischief and 'pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico" (r). The whole The uext brauch of the general rule for the con- considered struction of statutes is that the whole of each Act (q) Holme v. Guj/, L. R. 5 Ch. D. at p. 905, per Jessel, M.R. (r) Heydon's Case, 3 Rep. at p. 7 la. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 109 must be considered. This principle was most dis- tinctly stated in the early authorities, and in more modern times it has been as fully recognised, and has formed the basis of what is called " the golden rule for the construction of statutes " (s). We find Lord Coke using these words : — " Eveiy Act of Parliament vipon consideration had of all the parts thereof together is the best expositor of itself" (i). Again : — "It is the most natural and genuine exposition of a statute to construe one part of the statute by another part of the same statute, for that best expresses the meaning of the mak- ers " {u). " The office of a good expositor of an Act of Parliament is to make construction on all the parts together, and not of one part only by itself; nemo enim aliquam partem recte intellijcre IMSsit antequam totum iterinn atqite iterum per- legit " (x). " The best expositors of all Acts of Parliament are tht; Acts of Parliament themselves by construction and conferring all the parts of them together, optima statuti interpretatrix est [omnibus particidis ejusdem inspectis) ipsum sta- tu tum" (y). Very simdar expressions are to be found in later cases both in England and the United States. Thus it is said by Best, C.J. : (s) Woodward v. Watts, 2 B. & B. at p. 454, per Cronipton, J. ; in whose opinion, however, " the golJen rule is not of much practical use ;'' Mattison v. Hart, 14 C. B. at p. 385, per Jervis, C.J. ; Eastern Counties Rail. Co. v. Marriage, 9 H. L. C. at p. 40, jjo- Blackburn, J. ; Wear Commissioners v. Adamson, L. R. 2 App. Cas. at p. 764, per Lord Blackburn. (t) 4 Inst. 325. (it) Co. Litt. 381 a. (x) Lincoln College Case, 3 Rep. 59 b. (y) Bonham's Cixse, 8 Rep. 117 a, b. Digitized by Microsoft® 110 THE CONSTRUCTION OF STATUTES. " The intent of tlie Legislature is not to be col- lected from any particular expression, but from a general view of the ^^4lole of an Act of Parlia- ment" (2). Erie, J. : "According to the general rule the words of a statute should be construed in their ordinary sense, so as to give effect to all its parts " (a). Coleridge, J. : "We must look to the whole scope of the Act in order to understand it " (6). Lord Tenterden, C.J. : " In construing Acts of Parliament we are to look not only at the language of the preamble, or of any particular clause, but at the language of the whole Act. And if we find in the preamble, or in any particular clause, an expression not so large or extensive in its import as those used in other parts of the Act, and upon a view of the whole Act we can collect, from the more large and extensive expressions used in other parts, the real intention of the Legislature, it is our duty to give effect to the larger expres- sions, notwithstanding the phrases of less exten- sive import in the preamble, or in any particular clause " (c). In the United States it has been said : " In construing any part of a law the whole must be considered : the different parts reflect light on each other ; and, if possible, such a con- struction is to be made as will avoid any contra- diction or inconsistency " (d). " In putting a construction upon any statute every part shall be (z) East India Interest, 3 Bing. at p. 196. (a) R. V. Ahp. Canterbury, 11 Q. B. at p. 566. See also Newton v. Nancarrow, 15 Q. B. at p. 152. (6) E. v. Comhe, 13 Q. B. at p. 183. (c) Doe d. Bywaier v. Brandling, 7 B. & C. at p. 660. (d) Commonivealtli-w. Duane, 1 Binney, at pp. 607, 608. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. Ill regarded, and it shall be so expounded, if prac- ticable, as to give some effect to every part of it "(e). "Every part is to be viewed in connec- tion with tbe whole, so as to make all the parts harmonise, if practicable, and give a sensible and intelligible effect to each " (/) . This rule applies most forcibly when there is any ambiguity in the language employed by the Legislature. In that case we are more especially bound to consider what is the object of the whole Act, and what is the light thrown upon that object by every part of the statute. We may look chiefly at the preamble as stating "the ground and cause of making the statute," and as being " a key to open the minds of the makers of the Act, and the mischief which they intended to redress " {g). But we must also examine the context, and the other clauses of the Act, for words which are obscure and ambiguous in one sentence luay have a definite meaning in another (h). When we examine what is called the " golden The " goi- rule," we see that its main significance lies in the for the effect it gives to this principle. The rule itself t?"'';^- is stated by Parke, B. : "It is a very useful rule s'^*^'^^- in the construction of a statute to adhere to (e) Commonwealth v. Alqer, 7 Gushing, at p. 89. (/) Oyden v. Strong, 2 Paine, at p. 587. ig) Sussex Forage, 11 CI. & Fin. at p. 143, per Tinclal, C.J., who cites the words of Chief Justice Dyer, in Stowel v. Lord Zouch, Plowd. at p. 369 ; see also Warhurton v. Loveland, 2 Dow. & Clark, at p. 489 ; Demi V. Eeid, 10 Peters, at p. 527. (h) Stowel V. Lord Zouch, Plowd. at p. 365 ; Arthur v. Bohnham, 11 Mod. at p. 161, per Trevor, C.J. ; II. v. Pcdmer, 1 Leach, C. C. at p. 355 ; Paddon v. Bartlett, 3 A. & E. at p. 896, per Lord Abiuger, C.B. ; Lord Fermo-ifs claim to vote, 5 H. L. C, at p. 745, pe)- Crowder, J. Digitized by Microsoft® 112 THE CONSTRUCTION OF STATUTES. the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the Legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience, but no further " {i). The slight variations in the statement of this rule, to be found in the many other decisions of the same judge which deal with the same subject, leave its effect substantially unaltered. The result of these several statements is that in construing any statute the Court should adhere to the ordinary meaning of the words used, and to their grammatical con- struction, unless the words when so read produce some manifest absurdity or injustice, inconsistency, inconvenience or incongruity (/c) ; or unless the meaning so given be repugnant to the context {I), or at variance with the intention of the Legisla- ture as it is stated expressly or by implication, or as it may be collected from other parts of the same statute (»i). Followed Similar phrases have been used by many other the7ucigel judges, evou when they have not expressly sanc- tioned the rule to which Parke, B., gave such pro- (i) Be.clie v. Smith, 2 M. & W. at p. 195. i}i) Ferry v. Skinner, 2 M. & W. at p. 476 ; Lucey v. Ingrain, 6 M. 6 W. at p. 316 ; Edmonds v. Laidey, 6 M. & W. at p. 289 ; Brown v. AI'Millan, 1 M. & W. at p. 202. (l) R. V. Ditcheat, Inhabitants, 9 B. & C. at p. 186 ; li. v. Banbury, Inhabitants, 1 A. & E. at p. 142. (m) Turner v. Sheffield and Rotherham Rail. Co., 10 M. k W. at p. 434 ; Steward v. Greaves, 10 M. & AV. at p. 719 ; Jlillm- v. Salomons, 7 Ex. at p. 546 ; I!, v. Bease, 4 B. & Ad. at p. 41. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 113 minence. The necessity of modifying language so as to avoid injustice or absurdity is admitted by Cresswell, J. (m), by Jervis, C.J. (o), by Lord Campbell, C.J. (p), by Alderson, B. {q), by Martin, B. (r), and other judges. Both Maule, J. (s) and Byles, J. (t) state that the general rule " which requires that the words of an Act of Par- liament should be read in their natural and ordi- nary sense, giving them a meaning to their full extent and capacity," need not be strictly followed where it would lead to some inconvenience which could not have been absent from the mind of the framers of the Act. That inconsistency with other parts of the same Act, and repugnance to the intention of the Legislature are, if possible, to be avoided, appears from the words of Little- dale, J. (li), of Coleridge, J. {x), of Hill, J. (?/), of Willes, J. {%), and of Irish and American judges (a). " The rule as to grammatical construction," says Pollock, B., "is subject to this condition, that however plain the apparent grammatical construc- (?i) Wansey v. Perkins, 7 M. & G. at p. 142. (o) Mattison v. Hart, 14 C. B. at p. 385. (pj R. Y. Met. Commissioners of Sewers, 1 E. & B. at p. 701. (q) Att.-Gen. v. Lochwood, 9 M. & W. at p. 398. (r) Att.-Gen. v. EalUtt, 3 H. & N. at p. 374. (s) Arnold v. Ridge, 13 C. B. at p. 763. (0 Bi/rks V. Allison, 13 C. B. N. S. at p. 23. {u) Giles V. Grover, 1 CI. & Fin. at p. 184. (x) R.Y. Poor Law Commissioners, in the matter of tlie Parish of St. Pancras, 6 A. & B. at p. 7 ; Ba/rton v. Bricknell, 13 Q. B. at p. 396. {y) B. V. Leatham, 3 E. & E. at p. 669. {z) Motteram v. Eastern Counties Rail. Co., V 0. B. N. S. at p. 80. (a) Warburton v. Loveland, 1 Hudson & Brooke, at p. 648 ; Quin V. O'Keeffe, 10 Ir. C. L. B. 393 ; U. S. v. Bassett, 2 Story, 389. I Digitized by Microsoft® 114 THE CONSTRUCTION OF STATUTES. tion of a sentence may be, if it be perfectly clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which upon the whole is the true meaning shall prevail in spite of the gram- matical construction of a particular part of it" (6). And in addition to these instances of judicial agreement with the various parts of the rule laid down by Parke, B., we find the whole of that rule approved by Lord Blackburn : " I believe it is not disputed that what Lord Wensleydale used to call the golden rule is right ; viz., that we are to take the whole statute together, and constiiae it all together, giving the words their ordinary signifi- cation, unless when so applied they produce an inconsistency, or an absurdity, or inconvenience so great as to convince the Court that the intention could not have been to use them in their ordinary signification, and to justify the Court in putting on them some other signification which, though less proper, is one which the Court thinks the words will bear " (c). To what Although the language ased both by Parke, B., Gxtsnt it prevails, and by many of the other judges, is very wide, a careful consideration will show that it does not go beyond the fair limits of judicial construction. It is plain that the absurdity, injustice, incojisistency, inconvenience, and incongruity which are, if possi- (6) TFaugh v. Middleton, 8 Ex. at p. 357. See also U. S. v. Fisher, 2 Crancli Sup. Covirt, at p. 399, pei- Washington, J. (c) M^ear Commissioners v. Adamson, L. E. 2 Ap. Cas. at pp. 764, 765. See also Eastern Gountdes Bail. Co. v. Marriage, 9 H. L. C. at p. 40, per Blackburn, J. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 115 ble, to be avoided, must be sucb as an examination of the statute itself and a comparison of all its parts would disclose. In an early case it had been stated that "upon all Acts of Parliament there must be such a construction made as that one clause may not destroy and frustrate another " {d). And a similar principle is laid down by Willes, J., when he says that such words as repugnance or absurdity are used "in the sense of being contrary to the mind and intention of the framers of the Act " {e). There must be, says the same judge, a repug- nance between the words of the section to be construed and those of some other section in the same Act, or in some other Act which is in 'pari mnterid (_/). On the same ground Crompton, J., in comment- ing on what is called the golden rule, observes : " I do not understand it to go so far as to authorise us, where the Legislature have enacted something which leads to an absurdity, to repeal that enact- ment and make another for them if there are no words to express that intention" {g). Incon- sistency is, in another case (Ji), explained by Parke, B., as meaning an inconsistency apparent on the face of the statute, and not one that arises from 'local circumstances, which may never have been known to the Legislature. Thus restricted the rule is most valuable as a guide to the construction {d) Stevens v. Duchworth, Hardres, at p. 344, per Atfcyns, B. (e.) Motteram v. Eastern Counties Bail. Co., 7 C. B. N. S. at p. 80. (/) Abel V. Zee, L. K 6 C. P. p. 371. See also JVilson v. Wilson, L. R. 2 P. & D. at p. .347, per Bramwell, B. (jf) Woodward v. Watts, 2 E. & B. at p. 458. (h) Smith V. Bell, 10 M. & W. 378. i2 Digitized by Microsoft® IIG TFIE CONSTRUCTION OF STATUTES. of statutes. It gives no scope for general con- siderations of policy or convenience, vrhich would unsettle all the established principles of judicial interpretation. Conse- j£ -j-]^g Courts Were at liberty to travel out of the qiiences -^ .are not to words of anv particular Act of Parliament, and to be re- . . garded. Consider what would in any case be the consequence of giving those words their natural meaning, they would become legislators and not interpreters. It has therefore been distinctly stated from early times down to the present day that judges are not to mould the language of statutes in order, to meet an alleged convenience or an alleged equity (i); are not to be influenced by any notions of hard- ship (^), or of what in their view is right and reasonable {J) or is prejudicial to society (m); are not to alter clear words, though the Legislature may not have contemplated the consequences of using them (») ; are not to tamper with words for the purpose of giving them a construction which is "supposed to be more consonant with justice" tljan their ordinary meaning (o). "Where the language of an Act of Parhament is clear and explicit, effect must be given to it whatever may be the consequences, for in that case the words of the statute speak the intention of the Legisla- (t) H. V. Foot Law Commissioners, 6 A. & E. at p. 7, per Coleridge, J. (k) Rhodes v. Smethurst, 4 M. & W. at p. 63, per Lord Abinger, C.B. {l) Abel V. Lee, L. E. 6 C. P. at p. 371, per WUles, J. (m) Brook v. Badley, L. E. 4 Eq. at p. Ill, per Lord Eomilly, M.E. (ii) jR. V. Whissendine, Inhabitants, 2 Q. B. at p. 454. (o) Ornamental Woodwork Co. v. Brown, 2 H. & C. at p. 69, per Martin, B. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 117 ture" (p). "Where tte law is known and clear, though it be inequitable and inconvenient, the judges must determine as the law is without re- garding the inequitableness or inconveniency " (g). " The premises must be clear out of the established law, and the conclusion well deduced before great inconveniences be admitted for law. But if in- conveniences necessarily follow out of the law only the Parliament can c\ire them " (r). Our next proposition is that all the sentences of Sentences .-,,., , to be read an Act are to be read grammatically m the order gramma- which has been adopted by its framers, and that every word is to have its full and proper meaning. This branch of the general rule, which was stated at the beginning of this chapter, has been already illustrated by several of the passages cited in support of another principle (s). We need not do more than refer to one or two additional cases, dealing with the course which is to be adopted as to the collocation of words and the order of sen- tences (t). The necessity of giving effect to all the words of Effect to a statute (iC), " nothing adding thereto, nothing to -ax the worrls of (p) Warhfihrton v. Loveland, 2 Dow. & Clark, at p. 489, per Tindal, the statute. C.J. (q) Dixon v. Harrison, Vaughan, 37. See also B. v. Skeen, Bell's C. C. at p. 115, per Lord Campbell, C.J. ; Ahley v. Dale, 11 C. B. at p. 391, per Jervis, C.J. (r) Graw v. Ramsey, Vaughan, 285, reported as Grow v. Ramsei/, T. Jones, 10. (s) Ante, pp. 111—114. (t) R. V. Ramsgate, Inhabitants, 6 B. & C. at p. 715, per Bayley, J. ; Rein v. Lane, L. R. 2 Q. B. at p. 151, 8 B. & S. p. 90, per Blackburn, J. ; Newell v. People, 3 Selden, at p. 97, per Juhnson, J. ; Cull v. Austin, L. R. 7 0. P. at p. 234, per Brett, J. (u) Isherg v. Bowclen, 8 Ex. at p. 860. Digitized by Microsoft® 118 THE CONSTRUCTION OF STATUTES. diminishing" {x), whicli has been often recognised, gives rise to some further considerations. It is clearly and distinctly laid down as " a settled canon of construction that a statute ought to be so con- strued that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant " {y). But when this principle has to be acted upon it is sometimes necessary for the judges to choose between inserting and omitting words, between giving no effect to one part of an Act and giving another part an effect which its language does not warrant. In one instance it was held that words could not be omitted, although they had the extraordinary result of giving an appeal from one quarter sessions to another (z). More than one case has decided that words cannot be inserted, unless their introduction is absolutely necessary to make an Act consistent with itself, and to avoid something manifestly absurd or re- pugnant («). Instances ^g ^jg^„ assume that the Courts have acted m whicn ' . words upon this principle in the following instances in inserted, which words have been inserted. "Where an Act {x) Everett v. Wells, 2 Scott, N. R. at p. 531, per Tindal, C.J. (y) B. V. Bishop of Oxford, L. E. 4 Q. B. D. at p. 261. It is worthy of remark that these words, which now rest upon the authority of the Queen's Bench Division of the High Court of Justice, are cited by Bacon in his Abridgment, and by Sir F. Dwarris in his work on Statutes, not from any judgment, but from the "intended argu- ment" of Sir B. Shower, in a case where judgment was given against a demurrer because no one appeared to support it. See B. v. Berchet, 1 Show. 108 ; Bac. Abr. Statute, I. 2 ; Dwarris, p. 508. (2) B. V. JVest Ridiiig Justices, 1 Q. B. at p. 329. (a) King v. Burrell, 12 A. & £. 460, 468 ; Williams v. BoberU, 1 C. M. & E. at p. 680, per Parke, B. ; Mlu v. O'Neill, 4 Ir. C. L. R. at p. 478. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 119 mentioned the sum of money to be paid by way of compensation for the damage occasioned to any lands, the Court of Queen's Bench supphed the words "to the owner or party interested," as having been omitted by accident (6). So where the 12 & 13 Vict. c. 103, provided that "all the costs and expenses incurred ... in and about the obtaining any order of justices for the removal and maintenance of a lunatic pauper" should be borne by the common fand of the union, the Court repeated the words " in and about the " before the word " maintenance," so that the expense of main- taining the pauper lunatic might also be defrayed by the union (c). Again, the Fines and Recoveries Act (3 & 4 Wm. IV. c. 74, s. 33) enacted that if any protector of a settlement was convicted of treason or felony, or wa,s an infant, or if it was uncertain whether he were living or dead, the Court of Chancery should be protector of the settle- ment " in lieu of the person who shall be an in- fant, or whose existence cannot be ascertained." It was held that the Court of Chancery was also protector in the place of any one convicted of treason or felony, as any other construction would give no effect to those words {d). A similar construction was placed upon the Highway Act, 1835 (6 & 7 Wm. IV. c. 50). Section 78 of that Act provided, " if any person riding 8.ny horse or beast, or driving any sort of carriage, shall ride or drive the same furiously . . . every person so offending . . . shall (6) Juhh V. Hull Dock Co., 9 Q. B. at p. 455. (c) Wigton Overseers v. Snaith Overseers, 16 Q. B. 496. Id) Be Wainwright, 1 PhiUips, 258. Digitized by Microsoft® 120 THE CONSTRUCTION OF STATUTES. ... for every sucli offence forfeit any sum not exceeding £5 in case such driver shall not be the owner of such waggon, cart, or other carriage, and in case the offender be the owner of such waggon, cart, or other carriage, then any sum not exceed- ing £10." It was held that a person riding furiously was liable to the smaller penalty, as, if he were not, no effect would be given to the words " ride " and " riding " (e). But the Court refused to extend in the same manner the 18 & 19 Vict. c. 108, which enacted that if any loss of hfe occurred by reason of any accident in a coal mine, or if any serious personal injury arose from explo- sion therein, the owner or agent of such mine should " within twenty-four hours next after such loss of life," send notice of such accident to the inspector of the district. It was held that no such notice need be sent within twenty-four hours after an explosion which caused serious personal in- jury (/). It is clear that the effect of this last decision is to omit altogether fi-om the Act the words which deal with serious personal injury. But the effect of the two former decisions was to insert, or to repeat in the latter part of the two sections, the words referring to a conviction for treason or felony, and to furious riding. Perhaps in all these cases it may be said that " the Court will rather strain words in order to arrive at a construction which is evidently intended by the policy of the Legislature than omit them, or declare the state of facts which has occurred a (e) ^yilliams v. Evans, L. R. 1 Ex. D. 277. (/) Underhill v. Longridge, 29 L. J. M. C. 65. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 121 casus omissus " (g). Acting on this principle the instances Courts have sometimes corrected obvious mistakes mistakes 1 in 1 1 T • tave been m the words oi statutes rather than deprive corrected, those words of all meaning. Thus, where an Act stated correctly the title of another Act, but made a mistake in giving its date (h), where the recital of the title of another Act made some changes in it^ language (i), where chapter eight was referred to instead of chapter eighteen {h), it was held that these errors were immaterial (l). Again, where a statute provided that any person who " shall " do a certain act " and shall be thereof convicted " was to be liable to indictment, and upon conviction to a certain punishment, the words " and shall be thereof convicted" were rejected as surplusage, because they implied that an offender must be convicted before he could be indicted («^). We may apply to such cases the words used by Cole- ridge, J. : " It is utterly impossible to construe a statute worded as this is so as to give a meaning to every word. If we attempted to do so we should make the Act insensible. We must con- strue this section not literally, but so as to give it a reasonable meaning " (»). We have now to consider what is the full and Meaning of words. (g) B. V. Sugdm, 1 Jr. Jur. (O.S.) 58. {K) Re Boothroyd, 15 M. & W. 1 ; B. v. Willcoclt, 7 Q. B. 317 ; 14 L. J. M. C. 104. (i) R. V. Longmmd, 2 Leach, C. C. 694. (jfc) Watervliet Turnpike Co. v. M'Kean, 6 Hill, 616. (Q See, however, Keene v. U. S., 5 Cranch Sup. Court, 304, and Blanchard v. Sprague, 3 Sumner, 279. («i) U. 8. V. Stern, 5 Blatchford's Circuit Court Kep. 512. (ra) R. V. East Ardsley, Ink., 14 Q. B. at p. 801. Digitized by Microsoft® meaning. 122 THE CONSTRUCTION OF STATUTES. proper meaning which is to be given to the words Ordinary \^ ^ statute. The first rule on this subiect is that gramma- ^ ^ tioaimean- words are to have their ordinary grammatical meaning (o), that which naturally and obviously belongs to them (^), and has been given them by common usage, in the common language of man- kind (g). They are to be read in their largest ordinary sense unless there is anything to restrict them either in the occasion on which they are used or in the context (r). Popular Many instances may be given to show that the popular sense of words is the one generally adopted in the construction of statutes. A popular mean- ing has been assigned to the words " town " (s), " hospital" {£), " insolvent circumstances" (m), " ex- ported from a port" {x), "afternoon Divine ser- vice " [y). An Act requiring a person to sign his (o) Bodenham Overseers v. St. Andrew's Overseers, 1 E. & B. at p. 469, per Coleridge, J. ; Cull v. Austin, L, E. 7 C. P. at p. 234, per Brett, J. (p) Martin v. Hunter's Lessee, 1 Wlieaton, 326, per Story, J. (q) Per Lord Tenterden, C.J. R. v. Wiiistanley, 1 Cr. & J. at p. 444 ; Att.-Gen. v. Winstanley, 2 Dow. & CI. at p. 310. (r) Hughes v. Overseers of Chatlwm, 5 M. & G. at p. 80, perTindal, C.J. It is the duty of the Court to restrain the operation of a statute within narrower limits than the words import, if it is satisfied that the literal meaning of the words would extend to cases which the Legislature never intended to include. Brewer's Lessee v. Blougher, 14 Peters, 178, 198. (s) Elliott V. South Devon Rail. Go., 2 Ex. 725 ; E. v. Cottle, 16 Q. B. 412 ; L. d; S. W. Rail. Co. v. Blackmore, L. E. 4 H. L. 610, 615. (<) Lord Colchester v. Kewney, 4 H. & C. 445. (w) Teale v. Younge, M'Clel. & Y. 497 ; Bayly v. Schofield, 1 M. & S. at p. 350 ; see Be Birmingham Benefit Society, 3 Sim. 421, for different words which have received a technical meaning. (x) Muller v. Baldwin, L. E. 9 Q. B. 457. See Att.-Oen. v. Pougett, 2 Price, 381. (y) R. V. Knapp, 2 E. & B. 447. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 123 name is obeyed if lie employs his usual signature, denoting his Christian name by an initial (z), or if he uses a stamp (a). An Act which avoids any contract made by a bankrupt after filing his peti- tion, extends to a bond given by him after that time, and is not confined to simple contracts (6). The Succession Duty Act is to be construed not according to the technicaUties of the law of real property, but according to the popular use of the language employed (c), and, as it extends to the United Kingdom, the technicalities of both Scotch and English law are 'to be disregarded (d). The Representation of the People Act, 1867, giving the franchise to every " man " possessed of a certain qualification, does not enfranchise women, becatxse although (by 13 & 14 Vict. c. 21) "in all Acts words importing the masculine gender shall be deemed and taken to include females," the word "man" in the ordinary and popular sense of words is used in contradistinction to the word "woman" (e). For the same reason words which are chiefly used in certain branches of commerce, and have acquired a popular meaning by reason of such use, will in general be so construed when they occur in statutes. Thus where a duty was imposed on " spirits," it was held that " sweet spirits of nitre," (2) E. V. Awry, 18 Q. B. 576. (ffi) Benn(.tt v. Brumfitt, L. E. 3 C. P. 28. lb) Kidson v. Turner, 3 H. & N. 581. (c) Lord Brayhroohe v. Att.-Oen., 9 H. L. C. at p. 165. (i) Lord Saltoun v. Adv.-Om., 3 Macq. Sc. Ap. 659, 671. (e) Ghorlton v. Lings, L. R. 4 C. P. 374 It is true this was not the only ground of the decision. Digitized by Microsoft® 124 THE CONSTRUCTION OF STATUTES. a known article of commerce not usually passing under the name of spirits, althougli spirits entered largely into its composition, was not liable to the duty (/). Thus, too, "gold and silver" does not mean pure gold or silver {g), a " square " of plate glass means any rectangular figure (h), worsted, though made from wool by combing, is not liable to a duty as a manufacture of which wool is a component part, because it has become " a distinct article known in commerce under the denomination of worsted" (i) ; bohea tea is " that article which in the known usage of trade has acquired that dis- tinctive appellation " (k) ; and the word " pur- chaser" in the Bankruptcy Act, 1869, a special code of law, laying down general rules for com- mercial men, is to be taken in the ordinary com- mercial sense of buyer, and not in the technical meaning which the law has ascribed to it {I). Unless Although in the case last cited the popular technical -t i ^ i • i • • i meaning prevailed over the technical sense, it is a general acquired. Tule that " when the Legislature uses technical language in its statutes, it is supposed to attach to it its technical meaning, unless the contrary mani- festly appears " {m). Such language is no doubt employed for the purpose of escaping the diflScul- ties caused by the use of merely popular expressions (/) Att.-Gen. v. Bailey/, 1 Ex. 281. ((/) Young v. Guok, L. R. 3 Ex. D. 101. (h) Att.-Gen. v. Gast Plate Glass Go., 1 Anstr. 39. (i) Elliott V. Swartwout, 10 Peters, 137. (/c) Two Hundred Ghests of Tea, 9 Wheaton, at p. 439, per Story, J. {I) Ex parte Hillman, re Pumfrey, L. E. 10 Cli. D. 622. (m) Burton v. Beevell, 16 M. & W. at p. 309, per Parke, B. ; 1 Kent's Com. 462. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 125 in regard to matters precise and technical in their nature, such as the title to land or the vesting of estates (n) or other legal subjects. Thus, in apply- ing the Statutes of Limitations to India, the Court construed the words " beyond the seas " as equiva- lent to "out of the realm," instead of giving them their literal meaning (o). In construing the Public Health Act, 1848, which defines the "owner" of premises as the person who receives the rack-rent, or would receive it if the premises were let at a rack-rent, the Court held that the trustee of premises used as a school came within the defini- tion of owner as supplied by the Act [p). So, too, the phrase "taxed cart" in a Turnpike Act does not mean a cart upon which a tax has been paid, but a cart to which that technical name had been given (g). The word "sue" refers to a proceeding by action, and does not include a bankruptcy petition (r). In some cases it seems doubtful whether the Courts have treated technical language as if it were popular, or have sacrificed the popular meaning of words to an extreme technicality. In dealing with bankruptcy law one Court decided tha.t a judg- ment in an action of tort was a "debt bond fide contracted" (s), while another held that the words " a debt contracted " referred only to debts arising ex contractu (t). (n) Deptford Churchwardens v. Sketchky, 8 Q. B. at p. 408. (o) RucJcmaXhoye v. LuUoohhoy Mottichund, 8 Moore, P. C 4, 20. (p) Bowditch V. Wakefield Local Board, L. R. 6 Q. B. 567. Xq) Williams v. Lear, L. R. 7 Q. B. 285. ()■) Guthrie v. Fish, 3 B & C. 178. («) Robinson v. Vale, 2 B. & C. 762. {t) Ex iiarte Clayton, L. E. 5 Ch. 13. Digitized by Microsoft® 126 THE CONSTRUCTION OF STATUTES. TJniess Another exception to the rule wMcli requires the mTaning at words of statutes to be read according to their wnh"""^ popular meaning is to be found where the popular proper meaning is a corruption of the genuine sense of the word. In such a case it is often necessary to trace the history of some particular word, and to show what it meant from the earliest ages down to the time of the passing of a statute, for this, " both on legal principles of interpretation and according to the plain common sense of mankind, is a proper mode of arriving at its true meaning " (m). Where the true meaning of the word has survived any popular corruption, and can be ascertained in a legitimate manner, it must be ^opted in the construction of statutes. Thus where an inclosure Act reserved to the lord of the manor the right to "minerals," it was held that this word, "though more frequently applied to substances containing metals, in its proper sense includes all fossil bodies or matters dug out of mines,'i.and, therefore, ex- tended to beds of stone instead of being restricted to metallic minerals {x). In like manner when the Mutiny Act, 1864, exempted soldiers on their march from tolls pa,yable upon the passage over any bridge, it was held that soldiers on their march were liable to tolls for the use of a structure which was called a floating bridge, but was really in the nature of a steam ferry (y). Again, it was provided by 4 & 5 Wm. IV. c. 76, that any relief given to or on account of any child or children, under the («) JJ. V. Archbishop of Canterhiry, 11 Q. B. at p. 580, ^cr Cole- ridge, J. (x) Earl ofRosse v. Wainman, 14 M. & W. 859 ; 2 Ex. 800. ly) Ward v. Gray, 6 B. & S. 345. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 127 age of sixteen, of any widow sliovild be considered as given to the widow. It was held that such rehef was given to the children also (z). The same desire to give words their proper meaning was shown ia certain decisions upon the Acts which dealt with the regulation of theatres. It was held that a portable booth which was used as a theatre was not " a house or other place of public resort for the public performance of stage plays " (a), nor " a house or tenement used as an unlicensed theatre" (6), but that it was "a place not duly Hcensed as a theatre " (c). A decision upon the Stannaries Act, 1869, maybe referred to the same principle. That Act provided that a call might be made at a meet- ing of a company, and it was held that one share- holder could not constitute a meeting {d). In all cases, however, it is essential to bear in Words mind that the words used in statutes must have a re^ewe a" reasonable meaning (e). It is said in one of the ^ea^g^^ early decisions that "when laws or statutes are made, yet there are certain things which are exempted and excepted out of the provisions of the same by the law of reason, although they are not ^pressly excepted. As the breaking of prison is felony in the prisoner himself by the statute de {z) R.Y. Shavincfton-cum-Gresty, Inhabitants, 17Q. B. 48; 20 L. J. M. C. 194. (a) Davys v. Douglas, 4 H. & N. 180 ; 28 L. J. M. C. 193. (i) Fredericks v. Howie, 1 H. & C. 381 ; 31 L. J. M. C. 249. (c) Fredericks v. Payne, 1 H. & C. 584; 32 L. J. M. C. 14. {d) Sharp v. Dawes, L. R. 2 Q. B. D. 26. (e) Churchwardens of Birmingham v. Shaw, 10 Q. B. at p. 878. " If words are susceptible of a reasonable and also of an unreasonable meaning, the former must prevail." Boon v. Howard, L. E. 9 C. P. at p. 308, per Keating, J. Digitized by Microsoft® 128 THE CONSTRUCTION OF STATUTES. frangentihus prisonam (1 Ed. II., stat. 2), yet if the prison be on fire, and they who are in it break the prison to save their lives, this shall be excused by the law of reason, and yet the words of the statute are against it " (/). Another case in the same volume lays down " that which law and reason allows shall be taken to be in force against the words of statutes " (g). Elsewhere we meet with similar expressions. " The words of a statute ought not to be expounded to destroy natural justice" (h). "Acts of Parliament are to be so construed as no man that is innocent or free from injury or wrong be by a literal construc- tion punished or endamaged " (^). " The words of an Act of Parliament must be taken in a lawful and rightful sense " {k). The rule thus laid down has been in more recent times followed in the United States, where it was held that a sheriff, who arrested the carrier of a mail under a bench warrant on a charge of murder, was not liable to be indicted for knowingly and wilfully obstructing and retarding the passage of the mail or its carrier (/). In deciding this case, the American judges referred to the case of the prisoner breaking prison, and to a passage in PufFendorff upon the law of Bologna, which enacted that whoever drew blood in the streets should be punished with the utmost severity, but which was held not to extend (/) Beniger v. Fogassa, Plowd. 13. (g) Partridge v. Strange, Plowd. 77, 88. (h) Rawson v. Bargue, Styles, 81. (i) Co. Litt. 360 a. {k) Co. Litt. 381b. (I) U. S. V. Kirhy, 7 Wallace, 482. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 129 to the case of a surgeon bleeding a man who fell down in a fit. These, indeed, are extreme instances, but there are many cases of a less startling character, in which the Court has acted on the same principle. Sometimes the most reasonable sense which can be given to words does little or no violence to their ordinary meaning. Thus it was held that an Act requiring a notice to be affixed to " the doors of all the churches " was reasonably complied with if a notice was affixed, not to every door, but to the principal door of every church (in). Where the Metropolitan Paving Act made " dust, cinders and ashes" the property of the scavengers, it was held that they were not entitled to metallic ashes, whicli were not mere rubbish, but were available for com- mercial purposes (??). So it was held that timber which had drifted from the place where it was moored in a river was not "wreck" within the Merchant Shipping Act, 1854 (o). Where a statute gave protection to agents who, before being indicted for an offence, had "disclosed" the same in an examination in bankruptcy, nine judges out of foiTrteen held that the word " disclosure " meant a statement for the first time of facts which had not before then been made known, and not merely a confession of an offence which might have been proved already {p). At other times, however, words have received a Even (m) Ormerod v. C'hadwicke, 16 M. & W. 367. (n) Law V. Dodd, 1 Ex. 845. (o) Palmer v. Rouse, 3 H. & N. 505 ; 27 L. J. Ex. 437. (p) B. V. SJceen, Bell C. C. 97; 28 L. J. M. C. 91. K Digitized by Microsoft® 130 THE CONSTRUCTION OF STATUTES. though tneaning which the necessity of giving an effect to that mean- ,^ iii i-i ing is not the Statute has rendered reasonable, but which can- accnrate. not be Called usual or strictly accurate. Thus, in earlier times, secundum quantitatem terrw in the Act Quia e^ni^tores, 18 Ed. I., was rendered "according to the value " {q) ; son fait demesne was turned into son tort demesne (r), -And perdra la chose was treated as equivalent to amittet locum (s). In more modern cases a wall has been held to be a "sewer" (t) ; a ditch a "fence" (u) ; the word '■' land " has been construed to include a fishery (x) ; a bench outside a house has been regarded as " on the premises " (y) ; Southampton Water has been described as a public thoroughfare (z) ; "rent" has been taken to mean annual value (a) ; races held in a field, which was private property, have been considered public races (6), and private premises, on which there was a sale by auction, a place of public resort (c). Again, the conjunction "and" has been considered equivalent to " or " (d), while " or " has been read as if it were " and " (e). Where, indeed, it was suggested that an effectual meaning (q) 2 Inst. 503, 504. (r) 2 Inst. 289. (s) 2 Inst. 303. («) Poplar Board of Wo7-ks v. Knight, E. B. & E. 408. (ii) Ellis V. Arnison, 1 B. & 0. TO. {x) Oldalcer v. Hunt, 19 Beav. 485 ; 6 De Gf. M. & G. 376. (y) Cross v. TFatts, 13 C. B. N. S. 239 ; 32 L. J. M. C. 73. (a) Coulbert v. Troke, L. K. 1 Q. B. T>. 1. (a) Sheffield Waterworhs Co. v. Bennett, L. E. 7 Ex. 409 ; 8 Ex, 196. (6) Bmighey v. Euiobotham, 4 H. cfc C. 711. (c) Seioell V. Tai/lor, 1 C. B. N. S. IGO ; 29 L. J. M. C. 50. (d) Toiimsend v. Read, 10 C. B. N. S. 308; JFaterhouse v. Keen, 4 B. & C. 200. See also Cresu-kk v. Eookshy, 2 Bulstr. at p. 51. («) Folder v. Padgett, 7 T. E. 509. Digitized by Microsoft® THE CONSTRUCTION OF STATUTES. 131 could be given to words wticli were useless as tliey stood, by substituting "and" for " or " and " levied " for " issued," tbe Court declined to make any such alteration (/"). But there is a manifest distinction between the act of giving a somewhat strained and artificial sense to a word, and that of absolutely replacing one word by another. It has often been laid down, that while words Words are to be understood m their plain and ordinary read too sense, they must not be read so literally as to ^ '^^^ ^' defeat the object of an enactment {g). Acting on this principle, the Courts have, both in ancient and modern times, given some words a wider meaning words 1 1 nn 11 • -I t:^^^ in a than they usually bear, and have restricted or wider sense modified the meaning of others. This is especially usuaUy'^''^ to be noticed where an Act deals with words of^®'*''' classification. In many cases it has been held that the phrase, " person or persons," included corpora- tions (h) ; but that principle has not been extended so far as to render a corporation liable to proceedings under the Pharmacy Act, 1868, which imposed a penalty on any person not being a duly registered pharmaceutical chemist, who kept open a shop for the sale of poisons (^), or to enable a corporation to sue as a common informer (^). So, where an Act (/) Green v. Wood, 7 Q. B. at p. 185. {g) See Lyde v. Barnard, 1 M. & W. at pp. 113, 114, per Parke, B. ; Buther v. Harris, L. E. 1 Ex. D. at p. 100, per Grove, J. (h) 2 Inst. 722 ; Bishop of Meath v. Marquis of Winchester, 3 Biug. N. C. at p. 207; Corporation of Newcastle v. Att.-Gen., 12 CI. &Fin. 402 ; Boyd v. Croydon Rail. Co., 4 Bing. N. C. 669; Cortis v. Kent IVaterworh Co., 7 B. & 0. at p. 330. (i) Pharmaceutical Society v. London Supply Association, L. E. 4 Q. B. D. 313, 5 Q. B. D. 310, 5 App. Cas. 857. (h) St. Leonard's, Shoreditch, v. Franklin, L. E. 3 G. P. D. 377. K 2 Digitized by Microsoft® 132 THE CONSTRUCTION OF STATUTES. imposed a liability for the repair of certain roads vipon " all and every body politic or corporate, and person or persons," it was held that parishes were liable (/). So, too, the " progenitors " of a king were held to be his predecessors (m). Some con- flicting decisions are to be found as to the meaning of the Avord " cattle " in different Acts of Parlia- ment. At one time it was held that an Act, speak- ing of " sheep or other cattle," coiild not be extended to any but sheep (n), but at another time " cattle " were held to include horses (o). Words denoting time are not always literally construed. Thus the words " forthwith " and " immediately," though in strictness they imply " prompt vigorous action without any delay " [p], have generally been considered to mean within a reasonable time (g). It has been held sufficient if a judge's cei^tilicate for a special jury, or that an action had been brought to try a right, or that a trespass was wilful and malicious, was granted within a reasonable time (r), such as a quarter of an hour after the verdict was given (s),-ox, in the course of the day on which the trial took place it), {I) R. V. Barton, Inhabitants, 11 A. & E. 343. (to) Bishop of MeatA v. Marquis of Winchester, 3 Biiig. N. C. at p. 205 ; 4 CI. & Fin. at p. 545. (ii) Fletcher v. Lord Sondes, 3 Bing. at pp. 580, 581, jje?- Best, C.J. (o) R. V. Paftj, 2 W. Bl. 721 ; Wright v. Pearson, L. E. 4 Q. B. 582. (p) B. V. Berkshire Justices, L. R. 4 Q. B. D. 469. (q) Butler and Baker's Case, 3 Eep. 28b. ; Tennant v. Bell, 9 Q. B. 684. (r) Christie v. Richardson, 10 M. n • i i i i to matters matters of subsequent creation, although at the sequent time whou such statutes were passed these matters could not have been contemplated by the Legisla- ture. The principle upon which the Courts have acted in these cases, and which justifies such an extension, may be stated in the words of Willes, J. : " The earlier statute deals with a genus within which a new species is brought by a subsequent (3) RathboneY. Munn, 9 B. & S. at pp. 712, 713, ixr Blackburn, J. (h) Republic of Costa Rica v. Erlanger, L. R. 3 Ch. D. at p. 69. (i) People V. Tibbets, 4 Cowen Sup. Ct. 384, 392. (k) Kimbray v. Draper, L. E. 3 Q. B. 160. {I) Wright v. Hale, 6 H. & N. 227. (m) Republic of Costa Rica v. Erlanger, T;. R. 3 Ch. D. 62. Digitized by Microsoft® creation. THE OPERATION OF STATUTES. 167 Act '' (?i) ; or in those of Lord Holt ; " when an Act of Parhament creates a new interest, it shall be governed by the same law that like interests have been governed before" (o). Thus, the Act of Elizabeth against fraudulent conveyances, and the Bankruptcy Act of the 6th Geo. IV., applied only to property which could be taken in execution The 1 & 2 Vict. c. 110, rendered bonds, bills and notes liable to be taken in execution, and it was held that the effect of the later Act was to extend the opera- tion of the Acts of Elizabeth and George the Fourth to this " new species of the genus property subject to execution" (j)). The Act 1 8 Elix c. 5, which gave costs to defendants, was extended to forms of action subsequently created (g). The Act 31 Ehz. c. 5, which rendered it unlawful to bring an action on a penal statute, except in the county where the offence was committed, applied to an action for penalties imposed by 52 Geo. III. c. 39, upon any one who acted as a pilot without being hcensed (r). The protection given by the Bankruptcy Act, 1849, to creditors holding security was extended to secu- rities created by the Common Law Procedure Act, 1854 (s), and the power which 1 Wm. IV. c. 47, gave to a devisee for life to sell lands for payment (ji) R. V. Jesse Smith, L. R. 1 C. C. B. at p. 270. The judgment in this case, though prepared by Willes, J.,was delivered by Bovill, C.J. (o) Lane v. Cotton, 12 Mod. at p. 486. Ip) B. V. Jesse Smith, L. R. 1 C. C. R. at p. 270 (citing Norcutt v. Bodd, Cr. & PhUl. 100 ; Barrack v. M'Culloch, 3 K. & J. 110; 26 L..T. Ch. 105) ; Edwards v. Cooper, 11 Q. B, 33. (q) Williams v. Drewe, Willes, 392. (»■) Barler v. Tilson, 3 M. & S. 429. (s) Holmes v. Tutton, 5 E. & B. 65, 79 ; 24 L. J. Q. B. 346, 351. Digitized by Microsoft® 168 THE OPERATION OF STATUTES. of the debts of a testator whose estate "by law shall be liable to the payment of any of his debts," extended to copyholds, although they were not rendered liable to the payment of debts until the passing of 3 & 4 Wm. lY. c. 104 {t). Where, however, the 9 Geo. IV. c. 40, gave an appeal against orders adjudicating the settlement of luna- tics, " in like manner and under like restrictions a,nd regulations as against any order of removal," it was held that the provisions of 4 & 5 Wm. IV. c. 76, which gave the persons served with orders of removal a certain time for considering whether or no they would appeal, did not apply to appeals against orders adjudicating the settlement of lunatics (m). It was suggested in one case that a penal Act could not be extended to anytbmg which was not known at the time of its passing, and that, as tumbling was not an entertainment of the stage when the 10 Geo. II. c. 28, was passed, it was not subject to the penalty imposed by that statute (x). But where the 17 Geo. II. c. 3, imposed a penalty on persons who were authorised to take care of the poor, and who refused to permit an inspection of the rates, it was held that this Act extended to assistant overseers whose appointment was autho- rised by 59 Geo, III. c. 12 {y). Where the 8 Anne, c. 7, imposed a penalty on the importation of foreign goods prohibited to be imported into this it) Branch v. Broione, 2 De G. & Smale, 299. (i6) R. V. West Biding Justices, 10 Q. B. 763. (s) R. V. Hand,!/, 6 T. R. 286. (y) Bennett v. Edwards, 7 B. c& C. 586 ; 6 Bing. 230. Digitized by Microsoft® THE OPERATION OF STATUTES. 169 country, it was held that this penalty attached to goods the importation of which was prohibited by subsequent statutes [z). Again, it was decided that bicycles, which were not known when the Highway Act, 5 & 6 Wm. IV. c. 50, was passed, came within the description of carriages included in that Act, and within the mischief of furious driving (a). The opej-ation of statutes is a:enerally confined Operation ^ o •' of statutes to things which occur most frequently, and is not coDfined to extended to everything that may possibly happen, most fre- Ad ea quoe frequent im accidunt adaptantur juixt (6). currenoe. " In construing a statute we must not look to cases of very rare and singular occurrence, but to those of every day's experience" (c). But this rule must not be carried so far as to defeat the real object of any statute, either by the omission of cases which come within its language, or the extension of such language to cases which it cannot fairly include. The rule and its hmits are thus stated in an early case : " When the words of a law extend not to an inconvenience rarely happening, and do to those which often happen, it is good reason not to strain the words further than they reach by saying it is casus omissus, and that the law intended quce fre- quentius accidunt. But it is no reason when the words of a law do enough extend to an incon- venience seldom happening that they should not extend to it as well as if it happened more fre- (z) Att.-Gen. V. Saggers, 1 Price, 182. (a) Taylor v. Goodwin, L. E. 4 Q. B. D. 228. (6) 2 Inst. 137. (c) Hyde v. Johnson, 2 Bing. N. C. at p. 780, per Tindal, C.J. Digitized by Microsoft® 170 THE OPERATION OF STATUTES. quently because it happens but seldom" [d). Where the question for decision was whether the word "forfeiture" in the 11 Geo. IV. and 1 Wm. IV. c. 65, included a seizure quousque by the lord of a manor, the Court of Queen's Bench held that a seizure quousque was included," because otherwise the operation of the statute would be limited to cases where there was a special custom for infants and persons under disability to forfeit, and it could not be. conceived that cases of such rare occurrence would be the subject of legislative enactment." But the Exchequer Chamber took the opposite view, remarking " we cannot agree that the small- ness of the evil to be remedied, if the words are understood in their strict and proper sense, is a good reason for reading them in another" (e). Operation The Operation of statutes is also confined to confined , . i • i i • i to things things which are expressly mentioned or enume- mentioned. rated. In such cases the Courts act in accordance with the two maxims, expressio unius est exdusio alterius and expressum facit cessare taciturn (/). The distinct and pointed enumeration of particular cases to which a statute is intended to apply, raises a natural inference that its application is not meant to be general. Where the Reform Act (2 Wm. IV. c. 45) allowed a house and land to be joined together for the purpose of conferring a qualification, it was held that two different build- ings could not be joined for the same purpose {g). (d) Bole V. Horton, Vaughan, at p. 373. (e) Bimes v. Ch-and Junction Canal Co., 9 Q. B. at p. 514. (/) Co. Litt. 183 b, 210a. ((/) De'whurst v. Fielde7i, 7 M. & G. 182 ; 8 Scott, N. R. 1013. Digitized by Microsoft® THE OPERATION OF STATUTES. 171 The express provision with, regard to mandamus in the Common Law Procedure Act, 1852, showed that the Act did not apply to quo warranto (h). The Act 43 Eliz. c. 2, which provided for levying the poor rate, specified coal mines only, and it was therefore held that no other mines were rateable (i). So where an express saving of bridge toll occurred in a statute, it was held that transit toll was ex- tinguished (k). A provision in an Act that a fair and reasonable supposition of right should oust the jurisdiction of justices of the peace, overrides the Common Law provision that a bond fide claim of right is sufficient for that purpose {T). Where, however, the words used in a statute are Operation not specific, bvit are general, they do not always words receive the widest construction of which they are restiained. susceptible, and their operation is often restrained either by reference to other parts of the Act, to its subject matter, or its general scope and inten- tion. " General words in a statute," says Turner, L. J., " are not always to be construed as including every case which falls within them" (m). In another case the same judge quotes with approval what Plowden says of the practice of the sages of the law : " those statutes which comprehend all things in the letter they have expounded to ex- tend but to some things ; and those which gene- rally prohibit all people from doing such an act (A) R. V. Seak, 5 E. & B. 1. (i) Morgan v. Grawshay, L. R. 5 H. L. 304. (k) Edinburgh and Glasgow Bail. Go. v. Magistrates of Linlithgow, 3 Macq. Sc. Ap. 717, 730. {l) White V. Feast, L. E. 7 Q. B. 353. (to) Gope V. Doherty, 2 De G. & J. at pp. 623, 624. Digitized by Microsoft® 172 THE OPERATION OF STATUTES. they have interpreted to permit some people to do it ; and those which include every person in the letter they have adjudged to reach to some persons only" (n). The wide expressions used in this passage almost warrant an inference that general words ought always to receive a limited construction, and that the mere use of words which may include every case would justify the Court in restricting their Not with- operation. But it is clear that a limited meaninff out some . ° reason. can Only be given to general words where the Act itself, or the legitimate methods of interpreting it, show that such was the intention of the Legisla- ture. " General words in a statute," says Sir William Grant, " must receive a general construc- tion, unless you can find in the statute itself some ground for limiting and restraining their meaning by reasonable construction, and not by arbitrary addition or retrenchment " (o). " I take it," says Cockburn, C.J., "to be a' sound canon of construc- tion in the application of a statutory enactment that full effect should be given to general terms, unless from the context, or other provisions of the statute, a limitation on the general language must necessarily be implied, more especially wlien had such a limitation been intended it might reason- ably have been expected to be expressed " {-p). " When the words of the Act are general and com- prehensive and the object clear," says Williams, J., {n) SawUns v. Gathercok, 6 De G. M. & G. at p. 21, citing Htradling v. Morgan, Plowd. at p. 205. (o) Beck/or d v. VFade, 17 Vts. at p. 91. (p) Tvjycross v. Grant, L. R. 2 C. P. D. at pp. 530, 531. Digitized by Microsoft® THE OPERATION OF STATUTES. 173 " nothing short of gross and manifest inconsistency with that object, or plain and palpable injustice which must inevitably ensue from such a construc- tion, can authorise Courts of Law in giviag a more confined and limited meaning to such general ex- pressions than they ordinarily and naturally import and bear. What else is restraining by inference or varying by interpretation but to a certain extent recasting and remodelling the statute, or, in other words, invading the province of the Legislature itself?" (g). If the context, or the declared intention of the By the Act, or provisions contained in other parts of it, show that general words are not to be read in their widest sense, they must receive a more limited meaning. Thus, where the Statute of Gloucester (6 Edw. I. c. 9) provided that no appeal should be abated as easily as hitherto, it was held that this clause did not extend to all appeals, but only to those which concerned the death of man, as such appeals were the subject of all the antecedent clauses (r). Where an Act empowered the Police Commissioners in Oldham to raise, lower, or alter the soil of the streets, and all the other provisions of the same section referred to paving and repair- ing, it was held that the soil of the streets could not be raised, lowered, or altered for any other purpose (s). The Act 3 & 4 Wm. IV. c. 98, enacted that no bill of exchange made payable at or within tliree months of the date'thereof should be void by (g) Garland v. Carlisle, 4 CI. & Fin. at p. 726. (r) 2 Inst. 317. (s) Brown v. Glegg, 16 Q. B. 681. Digitized by Microsoft® 17-t THE OPERATION OF STATUTES. reason of any interest taken thereon or secured thereby, and that the liabiJity of any party to " any bill of exchange " should not be affected bf any statute or law for the prevention of usury. Although the point was not actually decided, the Court of Queen's Bench thought that the general words " any bill of exchange " must be construed as " any such bill of exchange," and must be con- fined to bills of exchange not having more than three months to run (i). recitals Where the preamble of an Act, or the recital to a single section, or group of sections, shows that the Act or section is aimed at some particular mis- chief, general words may be restrained so as not to go beyond the declared object of the enactment. The cases in which general words have been thus restrained will ^be found in a subsequent chapter (i^). By sub- General words may also be qualified by subse- sequent _ . clauses, quent clauses or sentences m the same statute (a). The Lands Clauses Act (8 & 9 Vict. c. 18, s. 68) provided that any person entitled to compensation in respect of lands taken or injuriously afiected, and claiming more than £50, might have the amount settled either by arbitration or the verdict of a jury. But these general words do not include a yearly tenant, for they are restrained by the express provision of sect. 121 of the same Act, that the amovint of compensation payable to a (i) Vallance v. Siddel, 6 A. & E. 932 ; 2 N. & P. 78. (u) See B. v. Pemj, L. R. 9 Q. B. 64 ; Johnstone v. Huddleston, 4 B. & C. 922, 936 ; IVinn v. Mossman, L. R. 4 Ex. 292 ; in chapter 6. (x) B. V. Ahp. of Armagh, 8 Mod. at p. 8. Digitized by Microsoft® THE OPERATION OF STATUTES. 175 yearly tenant shall be ascertained by two jus- tices {y). So where one section of an Act empow- ered a railway company to make a line upon lands delineated on a plan, and described in a book of reference, while a later section provided that nothing in the Act should authorise the Company to enter upon any lands without the consent of the owner, it was held that the general words used in the fii'st part of the Act were restrained by the subsequent section, and that the Company could not enter upon the lands contained in the plan and book of reference without the consent of their owners (z). Again, the ninth chapter of Magna Charta provided that the Barons of the Cinque Ports and all other ports should have all their Hberties and free customs. These general words refer to such liberties and customs only as are not taken away by express words in subsequent parts of the same statute, and do not include the right of holding pleas of the Crown, which is taken away by the seventeenth chapter {a). The operation of general words may also be By the restrauied by reference to the subject-matter of matter. the Act in which they are inserted (b). " All words," says Lord Bacon, " if they be general and not express and precise, shall be restrained unto the fitness of the matter and the person. So the Statute of Wrecks that willeth that goods wrecked (2/) R. V. M. S. and L. Rail. Co., 4 E. & B. 88, 103. {z) Clarence Rail. Co. v. dreat North of England, Sc, Rail. Co., 4 Q. B. 46. {a) 2 Inst. 31. (6) De BoinvUh v. Arnold, 1 C. B. N. S. at p. 21, per Willes, J. ; East India Interest, 3 Bing. at p. 1915, per Best, C.J. Digitized by Microsoft® 176 THE OPERATION OF STATUTES. where any live domestical creature remaineth in the vessel, shall be preserved and kept to the use of the owner tha,t shall make his claim by the space of one year, doth not extend to fresh victuals, or the like, which is impossible to keep without perishing or destroying it ; for in these and the like cases general words may be taken, as was said, to a rare or foreign intent, but never to an unreasonable intent " (c). Where the Act, 1 & 2 Vict. c. 110, made judgments a charge upon lands, tithes, &c., it was held that the phrase included lay tithes only, and did not extend to ecclesiastical benefices {d)._ Thus, the words " any creditor" in the Bankruptcy Act, 184.9 (12 & 13 Vict., c. 106, s. 1 1 2), was restricted to persons who were creditors at the time of adjudication, and were entitled to prove in the bankruptcy (e). Again, the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71, s. 88), enabled the trustee in the bankruptcy of a beneficed clergyman to apply for a seqiiestration of his living, and gave such sequestration priority over any other seques- tration issued after the commencement of the bankruptcy. It was held that the sequestration issued at the instance of a trustee had priority over any sequestration issued by an individual creditor, but not over a sequestration issued by the trustee under another adjudication against the same bankrupt, as both these sequestrations were for the benefit of all the creditors (/). (c) Bacon's Maxims of the Lav, Regula 10, Si)edding's edition, vol. 7, pp. 356, 357. {d) I-Iawldns v. Gathercole, 6 De G. M. & G. 1, 21. (e) Re Poland, L. R. 1 Cli. 356. (/) Ex parte Ghiok, re Meredith, L. R. U. Ch. D. 731. Digitized by Microsoft® THE OPERATION OF STATUTES. 177 General words are further restrained to things To things which are lawful (f/), and to proceedings which are lawMand in harmony with the previous policy of the law. mony^with They are not usually to be construed so as to alter ^oij^J" rf the existing law, unless no sense or meaning can be '^""■ put upon them which is consistent with any other intention iji). Thus, general words enabling all persons to devise their land by will wovdd not confer that power upon infants, persons of unsound mind, or married women (i). The general words of Westminster the Second (13 Edw. I.), giving creditors a remedy by elegit, and empowering auditors to commit to the next gaol all bailiffs or receivers who are in arrears, do not render infants hable either to an elegit (k), or to imprisonment (/). Nor are necessary incidents (m), or customs («), taken away by the general words of a statute. An Act which provides that conveyances in a cei'tain form " shall bo valid and effectual in law to all intents and purposes " does not cure a defective title (o). The Act 12 Car. II. c. 17, providing that ministers put in possession of benefices during the Commonwealth should be allowed to continue in possession, " notwithstanding any other matter iff) L. B. S S. G. Rail. Go. v. L. <& S. W. Rail. Go., 4 De Gex & Jones, at p. 396, per Turner, L.J. (A) MiTiet V. Leraan, 20 Beav. 269. (i) Beckford v. Wade, 17 Ves. at p. 91 ; Osgood v. Breed, 12 Mass, 525. {V) 2 Inst. 395. {]) Stowel V. Lord Zouch, Plowd. at p. 363a. (m) 2 Inst. 501. (n) Hutchins v. Player, Bridg. at p. 319 ; Simson v. Moss, 2 B. & Ad. 543. (o) Ward v. Scott, 3 Camp. 284, per Lord Ellenluorougli, C.J. N Digitized by Microsoft® 178 THE OPERATION OF STATUTES. or thing by them done, or omitted to be done," did not confirm a simoniacal appointment (p). The Act 27 Geo. III. c. 44, which enacted that no suit for ircontinence should be commenced in an Eccle- 5ia>:Tiral Court after eight months, was held to apply only to suits for reformation of manners and Lot r.-j suits i'jT deprivation (g'). Oj^-^^z 'Yhfi use of o-erieral words in the Acts which as -. tfc-i c: riferr-rd jurisdiction on the Admiralty Court and -z'-ji.'.inL tti.>i C:'i:.tv Co'irts has given rise to many differ- **"~ eni-es '-f •:>piiiion. It was enacted by the 24 Vict. «:-. 10. s. 7, that the High Court of Admiralty si ya!d have jurisdiction over any claim for damage .i:':::e bv anv slip. The Court of Admiralty itself ar. i the Priw Council held that these words es- ts^dr'i to anv claim for personal injuries (?') ; and the Ccirt of Admiralty further decided that a f-.},^. --der L:rd Campbell's Act was also in- y_--ieii L • general been restricted occur at the begmnmg oi sections, words and it has usually been stated that words at the theTnd of end override the whole sentence (o). But where a ^'''''"''"*- Turnpike Act provided that ditches should be made, scoured, cleansed and kept open, and that sufficient trunks and tunnels siiould be made and laid where carriage-ways or footways led out of the turnpike-road into the adjoining lands or grounds, by the occupiers of such lands or grounds, it was held that the duty of cleansing the ditches was not (k) Stracey v. Nelson, 12 M. & W. 535 ; 13 L. J. Ex. 97. This case is cited by WiLles, J., in Hinde v. Chorlton, L. K. 2 C. P. at p. 116, aa deciding that where lands vested in the Commissioners of Sewers, only the control over the land and not the freehold passed to them. It has been shown by Cotton, L.J., in Coverdale v. Charlton, L. E. 4 Q. B. D. at p. 124, that the case establishes no such principle. (o) R. V. Carnlrulfjeshire, Justices, 4 A. & E. HI, 119. Digitized by Microsoft® 192 THE OPERATION OF STATUTES. imposed on the occupiers of adjoining lands, and that they were not required to do more than to make and lay the trunks and tunnels (_p). The "Act to regulate Parochial Assessments " (6 & 7 Wm. ly. c. 96) provided that every poor-rate should contain an account of all the particulars set forth in a form given in the schedule, and that the churchwardens and overseers or some other ofiicers should sign a declaration given at the end of that form, and added the words " otherwise the said rate shall be of no force or validity." It was held that the provision invalidating the rate applied solely to the words which immediately preceded, and that the rate was not invalid if the parti- culars prescribed in the earlier part of the section were not properly given (5). The Act 3 Geo. IV. 0. 39, enacted that the defeasance to a warrant of attorney must be written on the same paper or parchment with the instrument itself, otherwise it should be void to all intents and purposes. It was held that these words applied only to such warrants as the earlier sections of the Act rendered invalid against assignees in bankruptcy in the event of their not being filed within twenty-one days, and did not affect the validity of warrants of attorney as between the parties (r). The Bank- ruptcy Act, 1849 (12 & 13 Vict. c. 106), provided that if any bankrupt should be arrested for debt while he was protected by the order of the Court (p) Merivale v. Exeter Road Trustees, L. E. 3 Q. B. 149. (j) B. V. Fordham, Inhabitants, 11 A. & E. 73. (r) Morris v. Mellin, 6 B. & C. 446 ; Bennett v. Daniel, 10 B. & C. 500. Digitized by Microsoft® THE OPERATION OF STATUTES. 193 he should be discharged on the production of his protection order to the oflScer who made the arrest, and that any officer detaining a bankrupt after such protection had been shown to him should be liable to a penalty. It was held that the officer who arrested a bankrupt was the only one liable to such a penalty, and that the Act did not extend to a gaoler who detained a bankrupt when dehvered into his custody, although the bankrupt was protected by the order of the Court, and that protection was shown to the gaoler (s). The operation of statutes may be either extended Operatioa . . .of statutes or restricted accordmg to the manner m which affected their provisions are treated as imperative or direc- words are tory. In the first case, words which in their ^^^^'^ftiVe primary sense are words of permission, and which, j^^.'^''"*''^' if taken Hterally, confer power or authority, have been held to impose a duty. In the second case, words which in their primary sense are words of command have been relaxed or modified, and an entire departure from their literal meaning has been considered a substantial compliance with their spirit. ' No general rule can be established for the pur- No general pose of determining wliether the words oi any subject. statute are to be considered imperative or direc- tory. " In each case," it is said, " we must look to the provisions of the Act and its subject- matter" (i), or " to the whole scope of the statute to be construed" {u). Any attempt to attain (s) Ml/ere V. Vdtch, L. R. 4 Q. B. 649. (f) Nicholl V. Allen, 1 B. & S, at p. 928, per Crompton, J. (u) Liverpool Borough Bank v. Tamer, 2 De G., F. & J. at pp. 507, 508, 30 L. J. Ch. at p. 380, per Lord Campbell, C. Digitized by Microsoft® 194 THE OPERATION OF STATUTES. greater certainty than this principle would allow, any attempt to lay down a positive rule, must lead inevitably to a conflict between numerous decisions, as there is probably no question connected with the construction of statutes which has given rise Conflict of -tQ greater difference of opinion. Thus it has been decisions. ° _ '■ stated in one case, that " the words ' shall and may ' in general Acts of Parliament are to be con- strued imperatively " (a?), while in another case, we read, " I' do not agree that ' shall and may,' in a statute, are always imperative ; they must be deemed imperative or not according to the subject- matter" (^). Tt has been said that in all cases where an Act of Parliament empowers a Court of Justice to do any act, using the words, "it shall be lawful," those words are imperative, and leave the Court no discretion. " That is the usual courtesy of the Legislature in dealing with the Judicature. ' It shall be lawful,' means in substance that it shall not be lawful to do otherwise " (z). But elsewhere we read that " in all cases where the words, ' it shall be lawful,' are used in an Act of Parliament with reference to a Court of Justice, and are not otherwise controlled, they give the Court a jurisdic- tion, leaving it to the Court to exercise its discre- tion according to the requirements of justice in each particular case " (a). So it was held that the Act (x) Att-Gmi. V. Lock., 3 Atk. at p. 166, per Lord Hardwicke, L.C. (i/) Hvdd V. Ravenor, 2 Brod. & Bing. at p. 665, per Park, J. {z) Re Neath and Brecon Rail. Co., L. R. 9 Oh. at pp. 264, 265, per James & Mellish, L.J J. (a) Re Bridgman, 1 Drew. & Sm. at p. 169, per Kiiidersley, V.-C. Digitized by Microsoft® THE OPERATION OF STATUTES. 195 53 Geo. III. c. 141, enacting that it should be lawful for the Court to set aside assurances given to secure an annuity, was not imperative, but gave the Court a discretion (6). The County Courts Act 13 & 14 Vict. c. 61, provided that if the plaintiff in an action should make it appear to the satisfac- tion of a Court or judge that an action brought in a superior Court could not have been brought in a County Court, the Court or judge " may " give him his costs. The Court of Exchequer held at first that this word was permissive (c), but after the Court of Common I *leas {(£) and the Court of Queen's Bench (e) had both decided that it was imperative, the Court of Exchequer yielded to the majority (/). The Act 17 Geo. II. c. 38, enacts that in case churchwardens and overseers refuse or neglect to account to their successors, "it shall and may be lawful" for justices of the peace to commit them. It was held that this Act gave the justices a discretion {g). But the Act 27 Geo. II. c. 20, which provides that where justices are empowered to issue a distress warrant, " it shall and may be lavsrful" for them to order the goods to be sold, was held to be imperative {K). Again, it has been laid down that " words of permission in an Act of ParHament, if tending to (6) Cook V. TmefT, 1 Taiint. 372 ; Barber v. Gartxaon, 4 B. & Aid. 281 ; Girdkstone v. Allan, 1 B. & C. 61. (c) Jones Y. Harrison, 6 Ex. 328 ; Palmer v. Richards, 6 Ex. 335. (d) Macdougall v. Paterson, 11 0. B. 755. (e) Crake v. Powdl, 2 E. & B. 210. (/) Axplin V. Blackman, 7 Ex. 386. (3) R. V. Jvstices of Norfolk, 4 B. & Ad. 238. (h) R. V. Williams, 2 C. & K. 1001. O 2 Digitized by Microsoft® 19G THE OPERATION OF STATUTES. promote the public benefit, are always held to be compulsory " (i). This proposition apparently rests upon the authority of a case which is supposed to have decided that permissive language in an Act empowering a sheriff to take bail, and in another empowering churchwardens and overseers to make a rate to reimburse constables, M^as to be construed as imperative (/;). As that case is still cited as establishing the principle that "where a statute directs the doing of a thing for the sake of justice or the public good, the word ' may' is the same as the word ' shall'" (Z), it is worthy of remark that the word " may " does not occur in either of the statutes mentioned in that case. The Act 23 Hen. VI. c. 9, does not provide that the sheriff may take bail, but that he shall take bail (m). The words of the Act, 14 Car. 11. c. 12, are that the church- wardens and overseers "shall have power and authority to make an indifferent rate" (n). Thus the judgment on which so much reliance has been placed, and from which a general rule has been so often deduced, has either been misreported, or rests upon an unsound basis. (i) R. V. Mayor of Hastings, 1 Dow. & Ry. at p. 149. (Jc) R. V. Barlow, 2 Salk. 609, Carth. 293, reported as B. v. Dirhy, Inhabitants, Skin. 370. {I) See a. V. Bishop of Oxford, L. R. 4 Q. B. D. at p. 258, per Cookburn, C.J. (jn) This has been observed by Chancellor Kent in Mwhurgh Tm-npike Go. v. Miller, 5 Johnson, Chancery Reports, at p. 101, and by Pollock, C.B., in Jotirs v. Harrison, 6 Ex. at p. 331, where it is stated that the roll of Parliament has been inspected for the purpose of rectifying this error. The original words of the Act are, "lesse- rount hors du prison sur resonable suerte ;" see note to Lancaster Canal Co. v. Parnaby, 11 A. & E. at p. 231. (n) Lancaster Canal Co. v. Parnaby, 11 A. & E. at p. 231. Digitized by Microsoft® THE OPERATION OF STATUTES. 107 As the establishment of any guiding principle is Cases in attended by so many difficulties, it will be safer to words of consider what are the cases in which words of per- have beer mission have been treated as imperative. Such i'mpera-'^* effect has been given to them in several cases where *'™- power or authority has been conferred on Courts, public officers, or public bodies, to be exercised for the benefit of any class, or any members of the community. " When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised to exercise the authority when the case arises. The word ' may ' is not used to give a discretion but to confer a power " (o). It was enacted by 1 3 Eliz. c. 7, that the Lord Chan- cellor, upon complaint being made to him against any bankrupt, should have full power and authority to grant a commission which was to take order for the bodies, lands, and goods of bankrupts. Upon the construction of this Act it was held that the Lord Chancellor was bound to issue such a com- mission (p). In like manner, the Acts which empower the Court to wind up insolvent com- panies (cj), to stay actions against such companies after a winding up has commenced (r), to grant execution against a shareholder if execution against a company prove ineffectual (s), have been regarded as imperative. The same view was taken of the words in the 7 Will. IV. and 1 Vict. c. 78, which (o) Macdougall v. Paterson, 11 C. B. at p. 773, per Jervis, C.J. (p) Alderman BackweWs Case, 1 Vem. 152. See, however, Re Bridgman, 1 Drew. & Sm. 164. (g) Bowes v. Hope Society, 11 H. L. C. 389, 402. ((■) Marson v. Lwid, 13 Q. B. 664. (s) Morisse v. Royal British Bank, 1 C. B. N. S. 67. Digitized by Microsoft® 198 THE OPERATION OF STATUTES. ■ empowered the Court to inquire into the title of an applicant to be inserted on the burgess roU of any borough it). Where the 5 & 6 Vict. c. 54, provided that if agreements were made for giving land or money instead of tithes, and the land or money seemed to the Tithe Commissioners a fair equivalent, they should be empowered to confirm such agree- ments, the Court said, " We are of opinion that in the cases to which the section applies, the Tithe Commissioners are bound to act under it, and must ' confirm according to its provisions. The words undoubtedly are only empowering ; but it has been so often decided as to have become an axiom that in public statutes words only directory, permissory, or enabling, may have a compulsory force where the thing to be done is for the public benefit, or ia advancement of public justice " (u). In the United States an Act provided that it should be lawful for the mayor, aldermen, and commonalty of New York to make sewers and cleanse them. It was held that as the public interest called for the execution of the power thus conferred upon the corporation, the statute was imperative, and the exercise of the power became a duty(x). This principle has sometimes been extended to companies incorporated by private Acts, and even to individuals. Where an Act pro- vided that it should be lawful for a railway com- pany to construct bridges of a certain height and span over the roads which were crossed by the it) B. V. Mai/or of Sarwich, 8 A. & E. 919. (m) R. v. Tithe Commissioners, 14 Q. B. 459, 474. (x) Mayor of New York v. Fiirze, 3 Hill, 612. Digitized by Microsoft® THE OPERATION OF STATUTES. 199 railway, it was held that the words were inserted for the benefit of the pubhc, and that the height and span prescribed were compulsory (i/). So the provisions that actions by and against banking com- panies " shall and lawfully may" be brought in the names of or against their public officers (z), or their official manager (a), are imperative, although an Act which makes it " sufficient " to state the name of the secretary, or of a director, in aU actions brought against a company, is not compulsory (&). The 8 & 9 WiU. III. c. 1 1, which provides that in actions on any penal sum for non-performance of covenants, the plaintiff "may" assign breaches, or suggest them on the roU, is imperative, as the statute is meant for the benefit of defendants (c). In certain cases language which, taken literally, ^^y^ . o o ' ^ •' ' which give would seem to give an absolute discretion to those » discre- 1 1 • • ^ 1 T T tionheld upon whom an authority is conierred, has been re- to be im- garded as imperative. It was, indeed, declared in ^^'^^ '^^' one case that the words " may be deemed proper" cannot be considered compulsory, since the effect of reading " may " in such a sentence as " must " would be that the whole passage would be rendered insensible (cZ). Where, however, the ii & 3 Vict. c. 84, enacted, that if any contribution by over- seers of a parish was in arrear, it should be lawful (2/) R. V. Caledmiian Bail. Co., 16 Q. B. 19, 28. (z) Steward y. Greaves, 10 M. & W. 711 ; Chapnum v. Milvain, 5 Ex. 61. (a) Be London and Eastern Bamking Corporation, 2 De G. & J. 484, 498. (6) Beech v. Eyre, 5 M. & G. 415. (c) Roles V. Bosewell, 5 T. R. 538 ; Hardy v. Bern, 5 T. E. 636 ; Drage v. Brand, 2 Wils. 377. (cQ De BeoMvoir v. ^Felch, 7 B. & 0. at p. 278. Digitized by Microsoft® 200 THE OPERATION OF STATUTES. for two justices to summon the overseer before a special sessions, and, " if the justices at such ses- sions shall think fit," to issue a warrant for recover- ing the amount of the contribution, it was held that these words did not give the justices an abso- lute discretion, and that, if the facts of the case were within the statute, they were bound to issue their warrant (e). So, where the 11 & 12 Vict. c. 42, provided that, upon an information being laid before justices, " they may, if they shall think fit," issue a summons, it w^as held that they were bound to act according to law, and could not refiise to i^vsue their summons merely because they thought the information ought not to have been laid (/). Where an Act provided that a City Council might, '■ if it beheved that the pubhc good and the best interests of the city required it," levy a tax to pay its funded debt, it was held that a mandamus lay at the instance of a judgment creditor to compel such a tax to be levied. "The discretion thus given cannot, consistently with the rules of law, be resolved in the negative. The rights of the credi- t'jr and the ends of justice demand that it should be exercised in favour of afiSrmative action" (cj). The same decision was pronounced in the case of a statute under which the Board of Supervisors miiibt. "if deemed advisable," levy a special tax, and the Court in giving judgment used the follow- ing expressions : — " The conclusion to be derived from the authorities is, that where power is given (t) R. V. BoUUr, 4 B. & S. 959. (/) if. Y. Aihtmson, L. R. 1 Q. B. D. 201. (g) City of Galena v. Amy, 5 Wallace, 705, 709. Digitized by Microsoft® THE OPERATION OF STATUTES. 201 to public officers in the language of the Act before us, or in equivalent language, wherever the public interest or individual rights call for its exercise, the language used, though permissive in foi^m, is in effect peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless. In all such cases it is held that the intent of the Legislature, which is the test, was not to devolve a mere discretion, but to impose a positive and absolute duty" (^). How far the very vdde expressions vised in this Cases in and some of the former cases are consistent with words of the views which have at other times been enter- havTbeen tained may, perhaps, be determined by a reference ^^^. '^°' *° ■' ' -T JT ' J be impera- to the cases where similar words have retained *i'>'«- their primary meaning. Even where Courts, pubHc officers or public bodies, have been empowered to do things which were for the public benefit, or for the benefit of specified persons, it has been held that the words conferring the power did not create a duty. The provisions of the 43 Geo. III. c. 59, that where county bridges are narrow and incon- venient, " it shall and may be lawful " for the justices of -the county to order such bridges to be widened, improved and made commodious, were declared not to be imperative, though they were (/i.) Supervisors v. U. S., 4 Wallace, Sup. Ct. at pp. 446, 447. Digitized by Microsoft® 202 THE OPERATION OF STATUTES, obviously intended to benefit tbe public (i). " The words, ' it shall and may be lawful,' " says Black- burn, J., in that case (h), "are to be taken in their primary sense as permissive, unless there be anything in the subject-matter of the enactment requiring that they should receive a different con- struction." The 1 Will. IV. c. 22, gives power to the Courts of Law, by the words " it shall be law- ful," to issue commissions for the examination of witnesses out of the jurisdiction. It is clear that this provision is intended for the benefit of suitors, yet it was held that the words were not compul- sory, and that the Court in its discretion might refuse to issue such a commission {I). The 32 & 33 Vict. c. 40, enacts that the rating authority " may" exempt Sunday and ragged schools from liabihty to be rated. It was held that the rating autho- rity was not bound to grant this exemption (m). A serious conflict arose upon the construction of the Church Discipline Act, 3 & 4 Vict. c. 86. That Act provides, that " in every case of any clerk in holy orders who may be charged with any offence, it shall be lawful for the bishop of the diocese, on the application of any party complaining thereof, or, if he shall think fit, of his own mere motion, to issue a commission " of inquiry. It was laid down by Wightman, J. {n), by Sir Kobert .fhiUimore (o), (i) Re Newport Bridge, 2 E. & E. 377 ; 29 L. J. M. C. 52. (jfc) 2 E. & E. at p. 382. (Q Gastelli v. Qroom, 18 Q. B. 490. (m) Bell V. Crane, L. R. 8 Q. B. 481. (w) B. V. Bp. of Chichester, 2 E. & E. 209 ; 29 L. J. Q. B. 23. (o) Martin v. Mackonoohie, L. R. 2 A. & E. at p. 123 ; see also Elphinstone v. Purchas, L. R. 3 P. C. 245. Digitized by Microsoft® THE OPERATION OF STATUTES. 203 and by Lord Selborne {p), that these words were not imperative, and that the bishop had a discre- tionary power to issue the commission. On the other hand, Dr. Liishington, when he was acting as assessor to the Archbishop of Canterbury [q), stated that the bishop was bound to issue the commission ; and the same view was taken by the Queen's Bench Division (7'). But this judgment was reversed by the Court of Appeal, which held that the words "it shall be lawful" in the Church Discipline Act were not imperative (s), and the judgment of the Court of Appeal was affirmed by the House of Lords {£). Where an Act recited that the formation of a railway between certain places would be beneficial to the public, and enacted that it should be lawful for a company to make such a railway, it was held that, notwithstanding the recital of the public benefit, the words were permissive and not com- pulsory {u). So, where it was provided in the United States that the dii-ectors of a turnpike company might remove a certain toll-gate (x), that the capital stock of a bank might consist of a cer- tain sum (y), it was held that these Acts were not {p) Ex parte Edwwrds, L. R. 9 Ch. 138. (j) In Ditcher v. Denison, of wMch I can find no report at this stage. (r) R. Y. Bishop of Oxford, L. R. 4 Q. B. D. 245. (s) B. V. Bishop of Oxford, L. E. 4 Q. B. D. 525. (t) Julius V. Bishop of Oxford, L. R. 5 App. Ca. 214. (it) B. V. York and North Midland Bail. Co., 1 E. & B. 178, 858 ; R. V. Lancashire amd Yorkshire Bail. Go., 1 E. & B. 228, 873 ; R. v. Great Western Bail. Go., 1 E. & B. 253, 874. (x) Newburgh Turnpike Co. v. Miller, 5 Jolinson's Chancery Reports, 101. {y) Minors v. Mechanic^ Bank of Alexandria, 1 Peters, 46. Digitized by Microsoft® 204 THE OPERATION OF STATUTES. imperative. In the judgment of the Supreme Court in the last of these cases, which is delivered by Story, J. (2.), it is said, " the argument of the defendants is, that 'may,' in this section, means ' must,' and reliance is placed upon a well-known rule in the construction of public statutes where the word ' may ' is often construed as imperative. Without question such a construction is proper in all cases where the Legislature means to impose a positive and absolute duty, and not merely to give a discretionary power. But no general rule can be laid down upon this subject, further than that the exposition ought to be adopted in this as in other cases which carries into effect the true intent and object of the Legislature in the enact- ment. The ordinary meaning of the language must be presumed to be intended, unless it would manifestly defeat the object of the provisions." The use of words that are plainly compulsory in the same sentence with words the primary mean- ing of which is permissive, necessarily leads to an inference that the primary meaning is to be re- tained. Thus it is provided by the 18 & 19 Vict. c. 128, that "every vacancy in any Burial Board shall be filled up by the vestry within one month, and in case any such vestry shall neglect to fill up any such vacancy, the vacancy may be filled up by the Burial Board at any meeting thereof." It was held that the word "may" in this section was not imperative; "it would be a strong thing to read it as ' shall ' when both the words occur in the («) 1 Peters, at p. 64. Digitized by Microsoft® THE OPERATION OF STATUTES. 205 same section " (a) . So the Attorneys and Solicitors' Act (6 & 7 Vict. c. 73) enacts that upon the appli- cation of a party chargeable the Court or judge is required to refer any bill to taxation, and adds that "it shall be lawful" for Courts and judges to order the dehvery up of documents in the solicitor's possession, It was held that, although as a general rule the words " it shall be lawful " were impera- tive, yet as they occurred in the same section with the words "the jtidges are hereby required," they gave the Court or judge a discretion (6). Where the languagfe of statvites is considered im- Effect of . . • n r> n 1 regarding perative, their provisions must be literally followed language and obeyed implicitly. But where their language tory. is regarded as directory a substantial compliance is sufficient (c), and even if acts are done which are not in accordance with the terms of the statute they are not rendered invalid. " The distinction between directory and imperative statutes," says Taunton, J., "has been long known. An early instance in which it was taken is the case in Strange as to the time of choosing overseers. I understand the distinction to be that a clause is directory where the provisions contain mere matter of direction, and nothing more ; but not so when they are followed by such words as are used here, viz., that anything done contrary to such provisions shall be null and void to all intents. These words give a direct, positive, and absolute prohibition, (a) R. V. Overseers of South Weald, 5 B. & S. 391 ; and per Cock- burn, C. J., at p. 405. (6) Ex parte Jarman, L. R. 4 Ch. D. at p. 838, per Jessel, M.R. (c) Woodward v. Sarsotis, L. R. 10 C. P. at p. 746. Digitized by Microsoft® 200 THE OPERATION OF STATUTES. whicli cannot be dispensed witli " (c?). In another case tlie Court gives the following definition of directory language, and states what is the result of its employment : " Where in such a matter as a rate the Legislature requires a thing to be done not in itself essential to the validity of it, and does not in terms specify what shall be the consequence of non-compliance, the Court will not make that consequence to be an avoidance of the whole " (e). It is contended by Mr. Sedgwick that " where the mandate of a statute is called and regarded as directory, the legislative enactment is neither strictly nor liberally construed, but simply dis- regarded altogether" (/"). This, however, is an exaggerated statement of the course pursued by the judges in their treatment of statutes which use words of command, but do not state the conse- quences of disobedience. They have held that where a statute provides for an act to be done within a certain time or in a certain manner, with- out forbidding it to be done within another time or in another manner, the conditions prescribed are not generally essential to the validity of the act. They have said that language seemingly positive may be read as directory, though such a construction ought not to be lightly adopted {g). Thus they have endeavoured to give effect to the true spirit and meaning of every statute without making its incidental provisions unduly oppressive. (S) Pearse v. Morrice, 2 A. & E. at p. 96. (e) Le Feuvre v. Miller, 8 E. & B. at p. 332. (/) Interpretation and Application of Statutory and Constitutional Law, p. 368. {g) Bawinan v. Bli/th, 7 E. & B. at p. 48, per Martin, B. Digitized by Microsoft® THE OPERATION OF STATUTES. 207 The chief instances of statutes beinff considered "s^ere Y , statutes fix directory are those in which a certain time has » time been allowed for the performance of some act. It which acts was held that the time fixed for the appointment done° ^ of overseers {h), for the election of guardians (i), for the appointment of surveyors of highways (k), for holding quarter sessions (i), for revising the burgess lists of municipal boroughs (m), for deposit- ing the valuation list made in London and trans- mitting it to the Assessment Committee [n), for delivering to the Commissioner of Stamps a return of the names and places of abode of the partners in a banking company (o), for entering with the registrar of a County Court a magistrate's order for the protection of the property of a married woman who was deserted by her husband [p), for selling by auction the real estate of a bankrupt [q), was not essential to the validity of any of those acts. Where it was provided by the 7 & 8 Geo. IV. c. 30, that every justice of the peace before whom any person was convicted of an ofience under that Act should transmit the conviction to the next Court of Quarter Sessions, this provision was held directory, and it was decided that a conviction might be returned to a subsequent sessions (r). Qi) R. V. Sparrow, 2 Strange, 1123. (i) R. V. Mayor of Norwich, 1 B. & Ad. 310. {k) R. V. Denbighshire, 4 East, 142. il) R. V. Justices of Leicester, 7 B. & 0. 6. (to) R. v. Mayor of Rochester, 7 E. & B. 910. {n) R. V. l7igall, L. R. 2 Q. B. D. 199. (o) Bosanquet v. Woodford, 5 Q. B. 310. {p) In the goods of Farraday, 31 L. J. P. & M. 7. (2) Doe d. Phillips v. Evans, 1 Cr. & M. 450. (r) Charter v. Greame, 13 Q. B. 216. Digitized by Microsoft® 208 THE OPERATION OF STATUTES. In the United States it was held that an Act directing a tax to be assessed within thirty days of the date of the meeting at which it was voted (s), and another ordering the commanding officer of each brigade of infantry to appoint a brigade court martial on or before the 1st of June in each year (t), were directory, and that the tax could be assessed and the court martial appointed after the time specified. In the last of these cases Marcy, J., says : " The general rule is that where a statute specifies the time within which a public officer is to perform an official act regarding the rights and duties of others, it will be considered as directory merely, unless the nature of the act to be per- formed or the language used by the Legislature show that the designation of the time was intended as a limitation of the power of the officer." Such an inference as is suggested in the last lines of the passage just quoted was drawn by the Court where a time was appointed for the taxation of costs upon petitions against private bills (^t), and for the approval by the quarter sessions of the table of fees to be taken by clerks to justices (a;). In both these cases the provision as to time was held to be imperative, and non-compliance with it rendered the taxation of costs and the table of fees in- valid. The contrast between such provisions with re- gard to the time of doing acts as are directory (s) Oale, V. Meoid, 2 Denio, 160 ; FonA v. Nwjm, 3 Mass. 230. (<) Peo'ple. V. Alle,n, 6 Wendell, 486. (m) Williams v. Swansea Canal Navigation Co., L. R. 3 Ex. 158. {J) Bowman v. Bl^th, 7 E. & B. 26. Digitized by Microsoft® THE OPERATION OF STATUTES. 209 and such as are imperative, is clearly defined in two cases decided upon the Ecclesiastical Dilapi- dations Act, 1871 (34 & 35 Vict. c. 43), and the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85). The first of these Acts, provided that within three calendar months after the avoidance of a benefice the bishop should direct a surveyor to inspect and report on the amount of dilapida- tions. It was held that the words limiting the time were directory, as great inconvenience might ensue and great injustice be done if the outgoing incumbent escaped liability, and his successor was deprived of any remedy, because the bishop allowed one day more than three months to elapse before he gave directions to the surveyor [y). But when the second Act required the bishop, within twenty- one days after a complaint was made to him of any illegal acts, to transmit a copy of such complaint to the accused person, it was held that these words were imperative, as it was unjust to the person accused that a suit should be kept hanging over him for an indefinite time (z). A similar construction is placed upon statutes Where which provide that things shall be done in a certain prescribe manner. Such a provision is usually considered -m^^^^^ directory unless the Legislature has used negative bfdone *° words, or other words showing an intention to treat the manner of performance as essential to the validity of the act, or unless the statute confers a special authority which must be strictly followed. Where it was enacted by the 5 Geo. IV. c. 84, {y) Caldow v. Pixell, L. R. 2 C. P. D. 562. (z) Howard v. Bodinciton, L. E. 2 P. D. 203. Digitized by Microsoft® ^ 210 THE OPERATION OF STATUTES. that it should be lawful for the Crown to appoint places of confinement in England for convicts under sentence of transportation, it was held that these words were directory, and that the return to a habeas corpus need not state that Millbank had been duly appointed one of such places of confine- ment {a). The Act 19 & 20 Yict. c. 120, which provides that a married woman applying to the Court shall be examined apart from her husband, was held to be directory, and in two cases judges dispensed with that examination (6). In like man- ner the Acts which require certain questions to be put to a recruit on his enlisting (c), bonds to be made to the King, his heirs or executors [d), hsts of voters to be signed by the overseers who pre- pared them (e), the address of appellant and re- spondent to be indorsed on the case stated by an assistant barrister (/), have been considered di- rectory. The same construction has been placed on the Acts which provide that an order for the detention of a lunatic should be in a certain form and should state certain particulars {g), that the justices at quarter sessions might appoint a county treasurer upon his giving sufficient security (/i), that contracts might be made by Local Boards (a) Brmcm?s Case, 10 Q. B. 492. (6) Re Lord da TaUey's Settled Estates, 11 W.E. 936 ; Be Halliday's Settled Estates, L. E. 12 Eq. 199. (c) Wolton V. Gavin, 16 Q. B. 48. (d) Yale v. The King, 6 Brown P. 0. 27, 30. (e) Morgan v. Parry, 17 C. B. 334. (/) M'Kemvne v. Bradford, 7 Ir. Jur. N. S. 169. ((/) Shuttlewoi-th's Case, 9 Q. B. 651. (h) R. V. Patteson, 4 B. & Ad. 9. Digitized by Microsoft® THE OPERATION OF STATUTES. 211 upon their obtaining an estimate in writing of the expense and a report as to the most advantageous mode of contracting (/), that contracts made by the commissioners appointed under a local Act should be signed by three commissioners and copied in a book kept for that purpose {h), that the busi- ness of a company should be carried on by twelve directors (/), and that the names and addresses of shareholders in a company should be entered in a book which was to be prima facie evidence of proprietorship (»?). Another instance in which the operation ofOpe'"ation . . - 1 °^ statutes statutes has been restrained is analogous to the restrained cases where their language has been regarded as words of directory. In some statutes words of prohibition tion'are are modified, and things declared void by the modified. Legislature are held by the Courts to be valid for certain purposes. The Act 5 Eliz. c. 4, provided that apprentices should be bound for seven years at the least, and that all indentures made other- wise than the Act provided, should be void to all intents and purposes. Yet it was held that such indentures were merely voidable as between the parties, and that a valid settlement might be gained under a binding for four years {n). The same con- (i) JVowell V. Mayor of Worcester, 9 Ex. 457. See as to provisions witli regard to Local Boards which have been considered imperative, Frend v. Dennett, 4 0. B. N. S. 576 ; R. v. Worksop Local Board, 5 B. & S. 95. (k) Cole V. Green, 6 M. & G. 872. (Z) Thames Haven Dock Go. v. Rose, 4 M. & G. 552. (m) Southampton Dock Go. v. Richards, 1 M. & G. 448 ; London Grand Junction Rail. Co. v. Freeman, 2 M. & G. 606. (n) R. V. St. Nicholas, Ipswich, Buir. Settlement Cases, 91. P 2 Digitized by Microsoft® 212 THE OPERATION OF STATUTES. struction was pi.it upon the 43 Eliz. c. 2, which enacted that male apprentices should he bound till the age of twenty-four (o), and on a local Act giving guardians power to bind children as appren- tices, but containing a proviso that the children should not be bound for a longer term than one specified [j)). Again, where the 53 Geo. III. c. 41, enacted that a deed, of which no memorial had been enrolled, should be void, it was held that such a deed was merely voidable (q). On similar grounds it was decided that where the 8 & 9 Vict. c. 106, declared that a lease which was required to be in writing should be void at law unless it was made by deed, the lease was merely void as a lease and might be valid as an agreement (r). Thus, too, a deed which is not to be received in evidence unless it is stamped, may be given in evidence to prove an act of bankruptcy, though it is not receivable as a valid deed (s) ; an unstamped cheque may be given in evidence for the purpose of proving that a transaction was fraudulent {t), and an unstamped bill of exchange upon a charge of forgery (u), or to negative a plea of payment (x). (o) R. V. WooUtanton, 1 Bott. & Const. 707. (y) R. V. St. Gregory, 2 A. & E. 99. (?) Davis V. Bryan, 6 B. & C. 651. (r) Bond v. Eosling, 1 B. & S. 371 ; Tidey v. Mollett, 16 C. B. N. S. 298 ; Parker v. Taswell, 2 De G. & J. 559, 570. (s) Ponsford v. Walton, L. E. 3 C. P. 167; & parte Squire, L. R. 4 Ch. 47. (i) Keable v. Payne, 8 A. & E. 555. (m) R. v. Hawhemood, 1 Leach, 257 ; 2 East P. C. 955. (x) Smart v. Nokes, 6 M. & G. 911. Digitized by Microsoft® CHAPTER V. THE VARIOUS KINDS OF STATUTES. Although the general principles of consti'uction what are whicli have been already discussed, apply to all kinds of statutes, yet there are some particular principles ^'*'"*''^- of construction affecting the various kinds or classes into which statutes may be divided. Among these kinds or classes those which present a marked con- trast to each other are ancient and modern, general and special, affirmative and negative, declaratory and enacting, remedial and penal statutes. In addition to these there are temporary Acts, and Acts in pari materia, and each of these divisions presents some characteristic features. ANCIENT AND MODERN STATUTES. " The first division of statutes," says Sir F. Dwarris, "is obviously into Ancient and Modern " («). Ancient statutes, according to the same writer, are such as extend from Magna Charta to the end of the reign of Edward the Second, while all statutes passed in subsequent (a) Dwarris on Statutes, 2nd edit. p. 460. Digitized by Microsoft® 214 THE VARIOUS KINDS OF STATUTES. reigns are modern. Such a division of statutes, however, is purely arbitrary, and for practical pur- poses is of little or no value. There can be no real distinction at the present day between a statute passed in the last year of Edward the Second and another passed in the first year of Edward the Third, while there are many and striking distinctions between statutes passed in both those reigns and statutes passed within living memory. With each century, with each reign, almost with each year, some statutes, which before then had been intelligible and full of meaning, drop out of the practical life of the nation and become obsolete both in sense and language. Without any actual repeal they are virtually superseded ; if put in force at all, they are put in force with reluctance ; and the modern statutes of one age become the ancient statutes of the next. Greater While, therefore, it is unsafe to fix upon any aUowed in definite period as the dividing line between ancient ancient"'^ and modom statutes, we may notice that much statutes. gj,gjj^^gj, latitude is allowed in the construction oi the former. As many of the ancient statutes were passed at a time when no great precision of language prevailed (&), and as it was " the wisdom of ancient Parliaments to comprehend much matter in few words" (c), the meaning of words used in those statutes has been often extended. " The extreme conciseness of the ancient statutes," says Lord Brougham, " was the only ground for the sort of (6) Wilson V. Knubley, 7 East, at p. 134, per Lord EUentorough, C.J. (c) 2 Inst. 401. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 215 legislative interpretation frequently put upon their words by the judges. The prolixity of modern statutes, so very remarkable of late, affords no ground to justify such a sort of interpretation " ((?). Similar language is used by Coleridge, J. : " There is a well known distinction between old and modern Acts. The older statutes are short, and it is some- times necessary to give their words an extended signification ; but this is not so with recent Acts in which many words are used and in the sense whicli is common at this day " (e). Lord Abinger has also remarked more than once that the old Acts were short and were intended to be applied to a, variety of cases, while the statutes of his day were framed with all the beauties of style and rhetorical expressions which could be picked up in the cham- bers of special pleaders and conveyancers, and pro- vided in terms for every case that could suggest itself to the imagination of the draftsman (y). The usual method in which the language of an- Words . f ° used for cient statutes is extended consists m the treatment examples. of particular words as if they were put for examples. Thus the statute Circumspecte agatit; (13 Edw. I.) directs the j udges to use themselves circumspectly in all matters concerning the Bishop of Norwich and his clergy, " not punishing them if they hold plea in Court Christian of such things as be meer spiritual." It was held that the Bishop of Norwich was put for an example, and that the Act extended (d) Gwynne v. Buniell, 7 CI. & Fin. at p. 696. (e) B. V. Gardner, 6 A. & E. at p. 118. (/) Patrick V. Stubbs, 9 M. & W. at p. 836 ; B. v. Frost, 9 U. & P. at p 186. Digitized by Microsoft® 216 THE VARIOUS KINDS OF STATUTES to all bishops {g). The same view was taken of the provisions of Westminster the Second (13 Edw. I. stat. 1, c. 46), which enumerated windmills, sheep cotes, cow-houses, and curtilages {K). In the 31st chapter of the same statute the judges of the Common Pleas were named, and it was held that all other judges, inferior as well as superior, were included {%). So, too, in Westminster the First (3 Edw. I. c. 46), the judges of the King's Bench at Westminster were put by way of example for the purpose of describing all Courts of justice (^). In the 4th chapter of the same statute the words " man, dog, or cat " include all animals escaping alive from a vsrreck (/). Again, the 1 Eich, II. c. 12, which gives an action for an escape, mentions the warden of the Fleet, but extends to all gaolers («(-). In the statute of Gloucester (6 Edw. I. c. 8) the County Court is named for example, but hundred Courts and Courts Baron are also within the law (n), and in chap. 11 London is named for excel- {(j) 2 Inst. 487. Mr. Lowe, in his evidence before the Select Com- mittee on Acts of Parliament, 1875, said : " If the case of the Bishop of Norwich were to occur again, it never would be decided by the present Courts that because a single bishop was allowed to make a lease, therefore all bishops are allowed to do so." It will be seen that the statute does not refer to leases ; and it is difficult to understand why one bishop only should be allowed to decide spiritual questions in his Court. (fc) 3 Inst. 476. (i) 2 Inst. 427 ; Strother v. Hutchinson, 4 Bing. N. C. 83. (k) 2 Inst. 256. (Q 2 Inst. 167. (m) Piatt V. Sheriffs of London, Plow. 35 j Plwnmer v. WUchcoi, T. Jones, 62. (m) 2 Inst. 311. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 217 lencv, but the Act extends to all cities and boroughs which have the same privileges (o). All these instances are drawn from very old statutes, and an attempt to apply the same prin- ciple to the 24th Geo IT. c. 44, was unsuccessful. Lord Camden, C.J., in giving the judgment of the Court, uses these words : " Though the general rule be true enough that, where it is clear the person or thing expressed is put by way of example, the judges must fill up the catalogue ; yet we ought to be sure from the words and mean- ing of the Act itself that the thing or person is really inserted as an example. This is a very inaccurate way of penning a law ; and the instances of this sort are scarce ever to be found except in some of the old Acts of Parliament. And where- ever this rule is to take place the Act must be general, and the thing expressed must be par- ticular ; such as those cases of the warden of the Fleet and the Bishop of Norwich ; whereas the Act before us is equally general in all its parts, and requires no addition or supply to give it the full effect" (j9). Perhaps the only instance of a word in a modern Act of Parliament being used for an example is to be found in the case where the words "King George," in the form of oath taken by members of the House of Commons, were declared to be applicable to the existing sovereign (g). (o) 2 Inst. 322. (■p) Entich V. Garrincfton, 19 State Trials, at p. 1060. (g) Miller v. Salomons, 7 Ex. 475 ; 8 Ex. 778. In that case, 7 Ex. at p. 559, Pollock, C.B., referring to the Bishop of Norwich's case, says that such a construction would not be tolerated in modem times. Digitized by Microsoft® 218 THE VARIOUS KINDS OF STATUTES. GENERAL AND SPECIAL STATUTES. Statutes may next be divided into such as are general and such as are special. General Acts affect either the whole community, or large and important sections, the interests of which may be considered identical with those of the whole body. Special Acts include those which are called private, local or personal, as they relate to private interests, and deal with the affairs of persons, places, classes, or other bodies which are not of a pubhc character. The terms general and special, of which Lord Coke says, "' generale dicitur a genere, et speciale a specie — spirituality is genus, bishopric, deanery, &c. , are species" (r), appear to be more appropriate and more comprehensive than the terms public and private which are sometimes used to convey the Public and same meaning. There is, moreover, a certain amount private ,..., .,. -\ • i_ statutes, of ambiguity m the terms public and private as applied t^) statutes. These words have sometimes been used as if they were equivalent to the terms general and special ; but at other times they have been employed in a narrower sense with reference to the manner in which statutes were classified for the purpose of enrolment or printing. It is said by the Record Commissioners that "in the 31st year of Hen. VIII. the distinction between Pubhc Acts and Privaie Acts is for the first time specifi- cally stated on the Inrollment in Chancery " {s). According to Sir Erskine May, statutes began to (r) Holland's Case, 4 Rep. 76. (s) lutroduction to the Statntea of the Reahu, 1810, p. xxxiii. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 219 be divided into Public and General and Local and Personal iu 1798 (t). " On tlie 1st of xMay, 1797," says Parke, B., delivering the judgment of the Court of Exchequer, " the House of Lords resolved that the King's printer should class the general statutes and special, the public local, and private, in separate volumes ; and on the 8th of May, 1801, there was a resolution of the House of Commons, agreed to by the House of Lords, that the general statutes, and the ' pubhc local and personal ' in each session, should be classed in separate volumes" (»). This classification of statutes was important, as it aflPected the mode in which they were treated by the Courts. Public Acts were judicially noticed, and copies printed by the authorised printer were received as conclusive evidence (x). Private Acts, however, had to be proved by examined copies, and with a view of remedying the inconvenience thus caused, a clause was often inserted in private Acts declaring them to be public. Subsequently the 13 & 14 Vict. c. 21, s. 7, enacted that "every Act made after the commencement of this Act shall be deemed and taken to be a public Act, and shall be judicially taken notice of as such, unless the con- trary be expressly provided and declared by such Act." But the effect of this provision, as of the similar clauses in private Acts of earlier date, was simply to indicate the way in which such Acts were to be noticed by the Court, and their operation is (i) Evidence before Select Committee of 1875 on Acts of Par- liament. (m) Richards v JEastu, 15 M. & W. at p. 251. {x) 41 Geo. III. c. 90, s. 9. Digitized by Microsoft® 220 THE VARIOUS KINDS OF STATUTES. in no way affected by it {y). Acts which are local and pers(inal in their nature are not removed from that category by a clause declaring them to be public (z). " Whether an Act is public or private does not depend upon any technical considerations, (such as having a clause or declaration that the Act shall be deemed a public Act), but upon the nature and substance of the case " (a). Thus, though the formal distinction between public and private Acts has been taken away, the substantial distinction between general and special Acts still remains. Real dis- The broad distinction between general and tinction . . . , , between Special statutes IS that everybody is considered as ancUpeciai asseuting to the former (6), and they consequently statutes. \^\^^ \^Q whole Community, while the latter, as a rule, bind only those who are parties to them, or are interested in their subject-matter, unless it appears by express words or necessary implication that it was the intention of the Legislature to affect the rights of strangers (c). What are j^ ^jj^ bc Well in the first instance to consider general statutes, what Acts have been included in these two classes. Statutes relating to the sovereign id), or heir (y) iJ. V. fficfe, 4 E. & B. at p. 643 ; Beaumont v. Mountain, 10 Bing. 404 ; Woodward v. Cotton, 1 C. M. & R. 44 ; Brett v. £eales, M. & M. 421. (z) Richards v. Easto, 15 M. & W. 244 ; Mowe v. Shepherd, 10 Ex. 424 ; Shepherd v. Sharp, 1 H. & N. ] 15. See, however, Barnctt v. Cox, 9 Q. B. 617. {a) Dawson v. Paver, 5 Hare, at p. 434, per Wigram, V.-C. (6) Hornby v. Jloulditch, 1 T. R. at p. 93, per Lord Hardwicke, C.J. (c) Dawson v. Paver, 5 Hare, at p. 434, per Wigram, V.-C. (d) B. V. Buggs, Skinner, at p. 429. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 221 apparent {e), the whole spirituaHty, or all those who have any spiritual or ecclesiastical benefice (/), all sheriffs and other officers {g), the election of members of Parliament, though for one borough only (/i), the rehef of the poor, though only in one county {[), the relief of insolvent debtors (/c), have been considered general. In one case it was held that an Act relating to all trades was general, while, if it related to one trade only, it was special (?) ; but it has also been laid down that an Act concerning tanners and shoemakers was general (??!-). The Watching and Lighting Act, 3 & 4 Wdl lY. c. 90 (»), and the Acts relating to the Metropolitan Police (o), were regarded as general, and in the United States, the same effect was given to statutes affecting banks, as their bills were made a legal tender, and their charters con- cerned the currency of the country {jS). On the other hand, it has been held that statutes what are . -. I'T special referring to leases made by bishops, to the nobility statutes. or the Lords of Parhament, or the corporations created by one King (g), or extending only to («) The. Prince: s Case, 8 Rep. 28 a. (/) Holland's Case, 4 fiep. 76 ; Jenniiujs v. Haithwait, 1 Brownlow, 208. {g) Holland's Case, 4 Rep. 76 ; 2 Inst. 31. (/;,) Morris v. Hunt, 1 Chit. 453. (i) E. V. Pawlyn, 1 Sid. 208. (Ic) Jones V. Axen, 1 Ld. Raym. 119. (0 Eirh V. Noivell, 1 T. R. 125. (to) Jaciues v. Chandler, Liitw. 1410. (ii) Pilhington v. Riley, 3 Ex. 739. (o) Barnett v. Cox, 9 Q. B. 617. (jj) Banh of Utica v. Smedus, 3 Cowen, 662. (q) Holland's Case, 4 Rep. 76. Digitized by Microsoft® m THE VARIOUS KINDS OF STATUTES. Cambridge, Oxford, Winchester and Eton (/•), were special. If, however, the words of an Act are special while its object is general, a general effect must be given to it, as was the case when the 5 Hen. IV. c. 10, providing that none be imprisoned by any justice of the peace but in the common gaol for trial at the next gaol delivery or sessions of the peace, was extended to aU other judges (s). ■^-"'^ Acts which have been passed at the instance of giving _ . p 1 powers to companies, or their promoters, -for the purpose of ' enabling them to execute works, levy tolls, or interfere with private property, are special Acts, and have always been looked upon as contracts between the persons obtaining such Acts and the public [(). In such Acts, it has been said, the Legislature merely lends its aid to the agreement of the parties in order to render it effectual when any public reason stands in the way (n). Such Acts are to be construed strictly against the per- sons obtaining them, but liberally in favour of the public (x), and as the language used in the Acts is considered the language of the promoters, any ambiguity which occurs in it must operate against (r) Cartrr and Glaycole's Case, 1 Leonard, 306. (s) 2 Inst. 43, citing the maxim, ubi lex est specialis et ratio ejus generalis, generaliter accipienda est. (t) Blalcemore v. Glamorganshire Canal Co., 1 Myl. & K. 162, per Lord Eldon, C. ; 2 C. M. & R. at p. 141, per Parke, B. (u) R. V. Toms, 1 DongL at p. 406, per Lord Mansfield, C.J. (a;) Priestley v. Foiilds, 2 M. & G. at p. 194 ; Barrett y. Stockton and Darlington Rail. Co., 2 M. & G. 134 ; 3 M. & G. 956; 11 CI. & Fin. 590 ; Parker v. G. TV. Rail. Co., 7 M. & G. at p. 288 : TFalker v. London and Blaekwall Rail. Go. ,3 Q. B. 744 ; JFebb v. Manchester and Leeds Rail. Co., 4 Myl & Or. 116 ; Tatniei/ v. Ltjnn and Ely Rail. Co., 16 L. J. Cli. 282. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 223 them (y). The powers given by such Acts to levy rates or tolls (z), or to interfere with private pro- perty, must be conferred by clear words, and " extend no farther than is expressly stated in the Act, or is necessarily and properly required for carrying into effect the undertaking and works which the Act has expressly sanctioned " (a). An instance of the strict construction given to special Acts passed for the benefit of con.panies rriiiy be found in a case decided upon a statute which empowered the Norwich Union Society to sue and be sued, and to commence all actions and suits in the name of its secretary. It was held that this provision did not authorise the secretary to pre- sent a bankruptcy petition against a person who was indebted to the society (6). In some of the early cases it was declared that How far a special Act did not take away the rights or inte- Acts affect rests of strangers. Thus, an Act which was in ^ ''^'^^'^^^ effect a bargain between foresters and proprietors of the soil did not affect the rights of com- moners (c). On similar grounds it has been lately held that an Act passed for the purpose of collect- ing together the clauses usually inserted in private bills which authorised the construction of piers and docks, could not be understood as creating a new (?/) SfoHrbridrje Canal Co. v. JVheehy, 2 B. & Ad. 792. {z) Hull Boa?. Co. V. Browne, 2 B. & Ail . at pp. 58, 59, per Lord Ttnterden, C.J. (a) Golman v. E. C. Rail. Co., 10 Beav. at p. 14, per Lord Laiigdale, M.R. (b) Guthrie v. Fish, 3 B. & C. 178. (c) Barrinffton's Case, 8 Rep. at p. 1.38 a ; Lucijv. Leviwjton, 1 Ventr. at p. 176, per Lord Hale. Digitized by Microsoft® 224 THE VARIOUS KINDS OF STATUTES. and extensive liability beypnd the liability imposed by the Common Law {d). But where the language used in a special Act is not capable of a narrower construction than one which would take away the rights of strangers, or would create a new liability, that effect must be given to it. Thus, where a local and personal Act recited that letters patent had been granted to the plaintiif upon certain conditions, and confirmed the grant, although some of the conditions had not been duly peiformed, it was held that this confirmation was effectual against all the world, and that it rendered invalid a patent for a similar invention, which had been granted to the defendant between the time of the plaintjfi''s grant and its confirmation (e). " The Legislature," says Byles, J., "in passing a private Act, is as omnipotent as in passing a public Act ; and if the words of the Act do clearly and inevitably compre- hend the estates or rights of strangers, a Court of law must hold those estates or rights of strangers bound" (/). Again, a special Act affects the rights of those interested in its subject-matter, although it may have passed without their receiving due notice of its introduction [g), and persons deahng with a company incorporated by a special Act of Parliament are presumed to be acquainted with the provisions of that statute (/i). (d) Wear Gommissioners v. Adamson, L. E. 2 App. Gas. 743. (e) Stead v. Carey, 1 C. B. 49b\ (/) Earl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 219. See also the expressions of Cockburn, C.J., at pp. 157, 158, and of Pollock, C.B., at p. 222. (jf) Edinburgh Rail. Go. v. TFauchope, 8 01. & Fin. 710. [h) Gahill v. Z. and N. W. Rail. Go., 10 C. B. N. S. 154 ; 30 L. J. C. P. 289. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 225 AFFIRMATIVE AND NEGATIVE STATUTES. Another classification which has been commonly adopted, but the accuracy of which has been ques- tioned (/), consists in the division of Acts of Par- liament into affirmative and negative statutes. Originally, no doubt, these terms were employed with reference to the language of the statutes them- selves, and affirmative words were regarded as per- missive, negative words as prohibitory. Acting on this principle, the older authorities laid it down that an affirmative Act did not take away a cus- Aflarma- tom(yt). The 11 Geo. IV. and 1 Will.' IV. c. G4, do n^t'*' which made it lawful for any person licensed as the accustom''' Act provided, to sell beer by retail in any part of England, did not supersede the custom of a borough that no one but a burgess should keep an ale- house (Z). Nor was a custom of the city of London for the mayor and aldermen, after any person whom they considered unfit to be an alderman had been chosen at three successive elections, to fill up the vacancy themselves, taken away by an Act which provided that the right of election should belong to the freemen of the city (m). It has also been or alter laid down that an affirmative statute does not take mon l^v. away the Common Law {n), affect or abridge Com- mon Law rights and privileges, such as the manner in which the panel of assize was arrayed (o), or the (O R. V. Mayor of London, 13 Q. B. at p. 33, }■"■ Alderfon, B. (k) Co. Litt. 115 a. (l) Mayor of Leicester v. Burcjeis, 5 B. & Ad. 246. (to) U- v. Johnson, 6 CI. & Fin. 41. (n) 2 Inst. 200 ; Escott v. Ma>bell, C.J. {m) Scales v. Pickering, 4 Bing. at p. 452, per Best, C.J. (») Hubbard v. Johnstone, 3 Taunt. 177. Digitized by Microsoft® £40 TFIE VARIOUS KINDS OF STATUTES. certain cases a tendency to invalidate bond Jide contracts" (o). An interpretation clause, declaring that one thing shall mean another, ought to be strictly construed {p), and so should a proviso when it follows an enacting clause which is general in its language and objects [q). It has been said that statutes which explain others ought to be strictly construed, and not by any equity or intend- ment {r), or "by any strained sense against the letter of the Act ; for if any exposition should be made against the direct letter of the exposition made by Parliament there would be no end of expounding" [s). But Lord Hobart denies that "statutes of explanation shall always be taken literally," adding, as the ground of his contention, " for it is impossible that an Act of Parliament should provide for every inconvenience which happens" (t). What is The strict construction that is to be put upon strict con- n » i • , n struction. the Acts which we have considered is not the exact converse of liberal construction, and does not consist in giving words the narrowest meaning of which they are susceptible. What is meant by it is, that Acts of this kind are not to be regarded as including anything which is not within their letter as well as their spirit, which is not clearly and intelligibly described in the very words of the statute, as well as manifestly intended by the (o) Goiigh V. Everarcl, 2 H. & C. at p. 8. Ip) AlUop V. Day, 7 H. & N. at p. 463, per Pollock, C.B. {q) U. S. V. Dickson, 15 Peters, at p. 165, per Story, J. (r) Case out of Court of Wards, Cro. Car. at p. 34. («) Butler ct Bakers Case, 3 Rep. at p. 31 a. (t) Hitckam v. Brooks, Winch, at p. 123. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 247 Legislature. "Our law," says Best, C.J., "will not allow of constructive offences ; no man incurs a penalty unless the Act whicli subjects Mm to it is clearly within the spirit and letter of the statute imposing such penalty" {u). If this rule is vio- lated, " the fate of accused persons is decided by the arbitrary discretion of judges, and not by the express authority of the laws " (x). So, too, it is said by Bayley. J., " in construing remedial statutes we are not tied down to the letter of the enact- ment, but effect must not be given to a penal statute unless the offence charged comes within the very words of it " {y). " It would be extremely wrong," says Abbott, J., "that a man should, by a long train of conclusions, be reasoned into a penalty, when the express words of the Act of Parhament do not authorise it" (z). And the same doctrine is maintained by Willes, J. : "I quite agree that criminal enactments are not to be extended by construction. When an offence against the law is alleged, and when the Court has to consider whether the alleged offence falls within the language of a ciiminal statvite, the Court must be satisfied, not only that the spirit of the legislative enactment has been violated, but also that the language used by the Legislature includes the offence in question and makes it criminal " {tx). So, too, it is said by Lord Truro, L.C., that the ordinary meaning of the (m) Hast India Interest, 3 Bing. at p. 196. (cc) Fldcha- V. Lord Sondes, 3 Bing. at p. 580, per Be.st, C.J. See also U. a. V. Sharp, Peters' Circuit Court Rep. 118. {y) Liird Huntingtoiver v. Oardincr, 1 B. & C. at p. 299. {z) B. V. Bond, 1 B. & Aid. at p. 392. (a) Britt v. Bohinson., L. R. 5 C. P. at pp. 513, 514. Digitized by Microsoft® 248 THE VARIOUS KINDS OF STATUTES words used in a penal statute is to be adopted, unless it plainly appears that the Legislature in- tended them to be read in some larger or different sense (6). Most of the passages which have just been quoted occur in cases decided on the words of statutes which are properly called penal, but they apply with equal force to all Acts of Parliament that receive a strict construction. Similar rules have been laid down with regard to statutes imposing taxes or duties on the public. Of one of these statutes Lord Cairns says : " As I understand the principle of all fiscal legislation it is this. If the person sought to be taxed comes within the letter of the law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax cannot bring the subject within the letter of the law the subject is free, however apparently within the spirit of the law the case might otlier- wise be. In other words, if there be admissible in any statute what is called an equitable construc- tion, certainly such a construction is not admissible in a taxing statute where you can simply adhere to the words of the statute " (c). So, too, Kin- dersley, Y.-C, says of Acts imposing duties, as had been said before of purely Penal Statutes by Bay ley, J. {d), that where the words of such Acts were ambiguous, they were to be construed in (J) Stephenson v. Higginson, 3 H. L. C. at p. 686. (c) Partington v. Att.-Oen., L. R. 4 H. L. at p. 122. (d) R. V. Bellamy, 1 B. & 0. at p. 506. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 249 lavour of the. person wlio was to be afFected by tliem (('). When we examine the principal cases in which close ad- statutes have received a strict construction, we^hTiXr" find that at one time the Courts have adhered "^ '*''*"*^'- closely to the letter of the statute, while at another they have held that the facts before them were not brought within its meaning. An early instance of the first method of construction is given by Lord Coke, who says that the Act on Parks, West- minster Primer, c. 20, is not taken by Equity as it is so penal, and does not therefore extend to forests (/). Another case was decided upon the words of an Act which required that an Order in Council shoidd be proclaimed in two market towns near the place where any person had been guilty of smuggling. An Order in Council was proclaimed in three market towns, one of which was six miles, a second thirty miles, and the third forty-two miles distant, from the place where this ofience had been committed, and it was held that as there were five other market towns within either six, eight, or fourteen miles distance, the proclamation was insufficient {g). The Act 21 Hen. VIII. c. 13, imposed a penalty for non-residence upon every spiritual person beneficed with any parsonage or vicarage. It was decided that the penalty was not incurred by the holder of a curacy augmented by Queen Anne's bounty, as the statute was penal (e) Wilcox V. Smith, 4 Drewry, at p. 49. (/) 2 Inst. 199. ((/) B. V. Hivrvey, 1 Wils. 164 ; 1 W. Bl. 20. Digitized by Microsoft® 250 THE VARIOUS KINDS OF STATUTES. and must be strictly construed (/i). Another statute referring to non-residence was the 57 Geo. III. c. 99, which required that notice of action against a clergyman for a penalty should be served on the bishop " by leaving the same at the registry of his diocese." This condition was not fulfilled by personal service on the deputy registrar out of the registry {%). The Act 8 Anne, c. 9, which required indentures of apprenticeship to be stamped within two months of their execution, was held not to apply to an assignment of an apprentice (^). In the construction of Acts imposing penalties upon gambling, it was held that half-pennies tossed up at a game called toss did not come within the words " instrument of gaming " (?), and that a deposit of half a sovereign as a bet on a dog race was not "betting with a coin as an instrument of gaming at a game of chance " (m) . Where the Act 14 & ] 5 Vict. c. 105, made it an offence punishable by imprisonment to personate " any one entitled to vote at an election " of guar- dians of the poor, it was held that the personation of a dead man was not within the statute {ii). So where the 2 Geo. II. c. 24, unposed a penalty on any voter receiving a reward " to give his vote " at an election, it was held that this penalty was only incurred by a voter who received a reward before voting and as an inducement for voting, and not (/i) JenMnson Y. Thomas, 4 T. E. 665. (i) Vaux V. Vollans, 4 B. & Ad. 525. (/c) R. V. He, Inhabitants, 2 B. & Ad. 866. (J.) Watson V. Martin, 34 L. J. M. C. 50. (m) Hirst v. Molesbury, L. E. 6 Q. B. 130. (m) Whiteley v. Clmppdl, L. E. 4 Q. B. 147 ; 38 L. J. M. C. 51. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 251 by one wlio received a reward after he liad voted (o). The iNIines Regulation Act (23 & 24 Vict. c. 151) requited safety lamps to be examined and locked by duly authorised persons, and imposed a penalty on the owner or agent of a mine if, through his default, this rule was violated. It was held that a mine owner, who had appointed a competent person to examine and lock the safety lamps, was not liable to a penalt\- if that person neglected his duty {p). The Municipal Corporation Act (5 & 6 Will. IV. c. 76) forbade aldermen to be clerks to the justices in any borough, and forbade the clerk to the justices in any borough to be du^ectly or indirectly interested in any prosecution. The same section proceeded to impose a penalty on any per- son being an alderman who should act as clerk to the justices of a borough, or should otherwise offend in the premises. It was held that this penal clause must be construed strictly, and could not be extended beyond the actual meaning of the words, so as to meet the case of a clerk to the justices who had been interested in a prosecu- tion {(j). "There are two distinct prohibitory provisoes," said Coleridge, J. (r), "and it is quite obvious that the intention was to annex the penalty to the violation of each. But this cannot be done if a grammatical construction is given to the words used." Another instance of a strict construction being given to a statute is to be found in a case (o) Lord Hnntingtower v. Gardiner, 1 B. & C. 297. {■p) Dickenson v. FMcJur, L. B. 9 C. P. 1. (g) Coe V. Lawrance, 1 E, & B. 516. ()■) At p. 520. Digitized by Microsoft® 252 THE VARIOUS KINDS 01 STATUTES. where a water company was empowered to break up the soil and pavement of roads, highways and footways, but was not to enter private lands with- out the consent of their owner. It was held that the company could not enter a field over which there was a public footpath without the consent of the owner of the field (s). In a Penal Act the word " and " cannot be read as if it was " or " (t), nor can the words " this Act " be taken to include an Act in pari materia. Section 145 of 3 Geo. IV. c. 126, took away the writ of certiorari in respect of " anything done in pursuance of this Act." That section was repealed by 4 Geo. IV. c. 95, and it was then provided by sect. 87 of this later Act that " no proceeding taken in pursuance of this Act " should be removed by certiorari. It was held that inasmuch as a statute taking away certiorari must be strictly construed, proceedings taken in pursuance of the first Act might be removed by certiorari, notwithstanding the prohibition in the second [u). So, too, it was enacted by the 2 & 3 Vict. c. 1 2, that no one should commence any action or prosecute any information for the recovery of any penalties " incurred under this Act," except in the name of the Attorney or Solicitor-General. The Act in question was passed for the purpose of amending 39 Geo. III. c. 79, and by one section it was provided that the two Acts should be construed as one. It was held, however, that a prosecution for an offence created is) Scales v. Pickering, 4 Bing. 448. (t) U. S. V. Ten cases of shawls, 2 Paine, 162. (m) R. v. Trustees of Norwich and Walton Eoad, 5 A. & E. 563. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 25:3 by 39 Geo. III. c. 79, need not be brought in the name of the Attorney or Solicitor-General (x). Again, it Avas provided by the Larceny Act (24 & 25 A ict. c. 96, s. 91), that any person receiving with a guilty knowledge any chattel, the steahng or taking of which amounted to a felony, " either at Common Law or by virtue of this Act," should be guilty of felony. It was held that this statute did not apply to the receipt of goods stolen by a partner, as larceny by a partner was not made a felony until the passing of a later Act, the 31 & 32 Vict. c. 116 (?/). In the following cases it was held that things to Cases not which the language used by the Legislature might meaning. fairly have extended were not within the meaning or the spirit of a penal statute. The 2 Geo. III. c. 19, as amended by the 39 Geo. III. c. 34, im- posed a penalty on any person who should take, kill, or have in his possession any partridges be- tween the 1st of February and the 1st of September. It was held that a person having partridges in his possession between those two dates was not liable to the penalty if the partridges had been killed before the eai-liest of the two dates, as otherwise a man might be liable to a penalty if he lawfully killed a partridge on the last moment of February 1st, but had it in his possession on the first moment of February 2nd (z). The 25 Hen. VIII. c. 20, im- posed a penalty on an archbishop who refused to confirm the election of a bishop by the dean and ix) R. V. Johnson, 8 Q. B. 102. {y) B. V. Jesse Smith, L. E. 1 C. C. K. 266. (a) Siminon v. Unvnn, 3 B. & Ad. 134. Digitized by Microsoft® 254 THE VARIOUS KINDS 01 STATUTES. chapter. It was held that the penalty did not attach unless the archbishop's refusal was without lawful cause (a). Where an Act made it an offence for any one to " fabricate " a voting paper, it was decided that the word " fabricate " imported a criminal intention, and that in the absence of such intention there could be no offence against the statute (6). So where penalties were imposed upon bakers who used certain ingredients in bread (c), upon persons sending dangerous goods by rail- way (c^), or being in possession of stores which had the admiralty mark (e), it was held that know- ledge was essential to constitute any of these offences. The 7 & 8 Vict. c. 112, enacted that if any seaman deserted his ship his wages should be forfeited to the owner. It was held that a seaman who was treated with such cruelty as justified him in refusing to remain on board his ship was not guilty of desertion within the meaning of the Act, and might bring an action to recover his wages (/"). An Act imposing a duty on horses which were hired to be used in travelling, was declared not to extend to the case of a horse which was ridden some miles into the country for pleasure {g). Where a canal company was empowered to appro- priate the water raised from certain mines, proAT.ded (toiy, J. {(T) U. a. V. Morris, 14 Peters, 464. S 2 Digitized by Microsoft® 260 THE VARIOUS KINDS OF STATUTES. order to sustain an indictment on the statute, it must be averred and proved that the Board of Health or selectmen of no town in the Common- wealth had given licence to the act complained of. The rule (which requires a strict construction of penal statutes) does not exclude the appHcation of common sense to the terms made use of in the Act, in order to avoid an absurdity which the Legislature ought not to be presumed to have intended " (e). STATUTES IN PARI MATERIA. Another kind or class of statutes has now to be considered. It consists of such statutes as relate to the same subject (/), to the same persons or things {cj), and are generally described as Acts m -pari materid. Such statutes are to be construed so that each of them may explain, interpret, and enforce the others, and although they may have been passed at different times, although some of them may have expired, or have been repealed (/i), although there may be no actual reference in one of them to the others, or any clause directing the several Acts to be read as one {i), they must be regarded as forming one harmonious system, or as so many parts of the same statute (Jc). This rule (e) Gommonwealth v. Loring, 8 Pickering, at p. 373. (/) M' William v. Adams, 1 Maoq. So. Ap. at p. 141, per Lord Truro. (gr) United Society v. Eagle Baiik, 7 Connecticut, at p. 469. (h) Ex parte Copeland, 2 De G., M. & G. 914, 919, citing K v. Loxdale, 1 Burr, at p. 447, per Lord Mansfield, C.J. (i) Waterlow v. Dobson, 27 L. J. Q. B. at p. 55, pier Lord Campbell, C.J. (7c) B. V. Loxdale, 1 Burr, at p. 447 ; Palmei-'s Case, 1 Leach, C. C. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 261 has been applied to the Stamp Acts (Z), to the Revenue Ln.ws {m), to the Statute of Limita- tions (n), and. is most appropriate in the case of ancient statutes (o). If an Act is passed which prohibits the doing of a certain thing, and after- wards another Act imposes a penalty on any one who does it, the two Acts are to be taken as one {p). The Act 3 & 4 Will. TV. c. 42, giving costs upon judgment in a demurrer, is to be read as one Act mth the 4 & 5 Will. IV. c. 39, which, while giving costs to the siiccessful party in quare impedit, enables the Court or judge to relieve from pay- ment of costs a bishop who has had good cause for defending an action [q). As the Lands Clauses Act was passed " to make a general code regulating the manner in which lands might be taken under the authority of Parliament, and compensation made for injury occasioned by what was thus legalised," it may be presumed that in passing subsequent Acts the Legislature intended to follow that general code, unless a contrary intention has been clearly manifested (r). One of the chief results of the practice of read- Legislative -*- or judicial iug Acts in pari materia as if they formed parts interpreta- 355 ; M'WiUiam v. Adams, 1 Macq. Sc. Ap. at p. 141 ; Patterson v. TVinit, 11 Wlieaton, 385, 386 ; The Harriet, I Story, 251 ; U. S. v. Bcfrrs, Crablie, 307 ; Dubois v. APLean, 4 M'Lean, at p. 489. {l) Crosley v. Arhwright, 2 T. E. at p. WQ, per Buller, J. (nt) U. S. V. Collur, 3 Blatchford's Circ. Court Rep. 325. (n) Murray v. East India Go., 5 B. & Aid. at p. 215. (o) E.,: parte Bishop of Exeter, 10 C. B. at p. 140. (jj) Stradling v. Morgan, Plo-vvd. at p. 200. (q) Edwards v. Bishop of Exeter, 6 Bing. N. C. 146. (t) E. v. Lord Mayor of London, L. E. 2 Q. B. at pp. 295, 296, per Blackburn, J. Digitized by Microsoft® 262 THE VARIOUS KINDS OF STATUTES. tion of one of the Same statute, is that the legislative or Act to be . . . 1 • n 1 i • j. followed in judicial interpretation which has been given to words in one of such Acts will generally be adopted in another. " Whatever has been deter- mined upon the construction of one statute," says Buller, J., "is a sound rule of construction for another which is in pari materid" {s). This prin- ciple was followed with regard to the 11 & 12 Vict, c. 43, which enacted that when justices should adjudge a defendant to be imprisoned, and he should " then be in prison undergoing imprison- ment upon a conviction for any other offence," they might order the imprisonment for the sub- sequent offence to commence at the expiration of that to which he had been previously sentenced. Similar words to these were used in the 7 & 8 Geo. IV. c. 28, and under those words the judges had been in the habit of passing consecutive sen- tences upon persons convicted at the same time of two separate offences, so that the sentence for one offence might commence at the expiration of the sentence for the other. It was held that the same construction was to be given to the words of the later statute {t). In another case, Martin, B., questions the propriety of the rule which is now under consideration. " I protest," says he, " against the idea that when an Act of Parha- ment is made as clear as words can make it, you are to cite as authorities as to its construc- tion and as a guide to us in its interpretation, {s) R. V. Mason, 2 T. R. at p. 586. (t) R. V. Cutbiish, L. E. 2 Q. B. 379, reporttd as Re Paine, 8 B. & S. 319. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 263 cases decided )'ears and years before upon another statute " (it). Of legislative interpretation it is said that where the same words occur in two Acts in pari materid, and in the first Act the Legislature has over and over again explained the meaning of those words, they ought to have the same sense in the second Act(j;). So, too, "where in two statutes in pari rnatend the same words occur, and in one of them the meaning is clear and in the other doubtful, I think," says Littledale, J., "we ought to call in aid the meaning put upon those words by the Legis- lature in. the statute where they are not ambiguous, and give them the same meaning in the other statute " {y). Therefore, it was held that 48 Geo. III. c. 1 1 1, which provided that no ballot, em'olment, and service under that Act should make void any indenture of apprenticeship or contract of service, applied only to indentures or contracts existing at the time of such ballot, as similar words were so restricted in the 52 Geo. III. c. 68, which was in pari materid (z). Again, the Bankruptcy Act, ^ Geo. II. c. 30, provided that a bankrupt's certificate might be refused if within a year before his bank- ruptcy he had lost the sum of £100 by contracts for the purchase of " any stock of any company whatsoever, or any parts or shares of any Govern- ment or public funds or securities." The Bankruptcy Act, 1849, 12 k. 13 Vict. c. 106, which contained (m) R. y. Moah, Dearsle/s C. G. at p. 639. (s) Glemion's Case, Alcock's Registry Cases, at p. 85. {y) R. V. Taunton St. James, 9 B. & C. at p. 838. {z) R. V. Taunton St. James, 9 B. & G. 831. Digitized by Microsoft® 264 THE VARIOUS KINDS OF STATUTES. similar provisions, used merely the words, "Govern- ment or other stock." These words, however, were taken to be as extensive as those in the earlier statute, and were read by reference to them so as to include railway shares (a). Although an identity of language in Acts in jpari materid gives rise to the inference that the meaning of the Acts ought also to be identical, a change of language does not necessarily lead to an opposite conclusion (6). Thus in the case from which these words are taken, it was held that " parochial rates" in 6 Geo. IV. c. 57, had the same meaning as " taxes of the parish" in 3 Will, and Mary, c. 11, and 35 Geo. III. c. 101. In another case, the com- parison of two Acts in pari materid led the Supreme Court of the United States to the conclusion that in the later Act a word had been accidentally omitted. An Act of Congress provided that suits " against " certain associations might be brought in the district Courts. An earlier Act had made the same provision for suits " by and against " such associations, and it was held that a reference to the earher Act enabled the word " by " to be supplied in the later (c). Provisions We havo Seen that in construing penal statutes one Act the Court has always restricted the term "thisAct," another.™ according to its literal meaning, to the Act itself in which that term was employed. But in statutes which are in pari materid, and to which the rule (a) Ex parte Copeland, 2 De G., M. & G. 914. (b) B. V. Bast Teignmouth, Inhabitants, 1 B. & Ad. at p. 249, per Bayley, J. (c) Kennedy v. Gibson, 8 Wallace, 498. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES 265 of strict construction does not apply, that term has a much more elastic meaning, and the words " this Act " include not only the Act itself, but earlier or later Acts, which are treated as forming parts of the same statute. Thus it was provided by 4 & 5 Will. IV. c. 1%, that "in the construction of this Act" the word parish should include city. The Act 9 & 10 Vict. c. 66, which incorporated the provisions of the Act of William the Fourth, and provided that the two Acts should be construed as one, enacted that no person should be removed from any " parish" in which he had resided for five years. It was held that by the combined operation of the two Acts, no person could be removed from a city in which he had resided for five years {d). By the Sanitary Act, 1866 (29 & 30 Vict. c. 90), the second part of that Act was to be construed as one with the Act 18 & 19 Vict. c. 121. One of the sections in the second part of the Act of 1866 enacted that " the provisions of this Act " should not extend to certain manufactures. It was held that by the efiect of this section the manufactures in question were exempted from the operation of the 18 & 19 Vict. c. 121 (e). Again, it was provided that the County Courts Act, 1867 (30 & 31 Vict. c. 142), and the several Acts in a schedule which comprised the County Courts Act, 1 856 ( 1 9 & 20 Vict. c. 108), should be construed together as one Act. Section 35 of the Act of 1867 enacted, "the words County Court when used in this Act, or any future Act, shall include the City of London Court." It was ((^) iJ. V. Forncett St. Mary, 12 Q. B. 160. (e) Norris v. Barnes^ L. R. 7 Q. B. 537. Digitized by Microsoft® 260 THE VARIOUS KINDS 01 STATUTES. held that by virtue of these words the provisions of the Act of 1856 apphed to the City of London Court (/). These cases were not cited to the Common Pleas Division when a similar question arose under the Municipal Elections Act, 1875 (38 & ;69 Vict. c. 40). Although by section 13 that Act was to be construed as one with the Municipal Corporations Act (5 & 6 Will. IV. c. 76), it was held that the effect of this section was not to incorporate in the later Act the provisions of the earlier. Therefore, where the initial of a Christian name was inserted in a nomination paper at a municipal election, this was considered a fatal objection to the validity of the nomination paper, and it was decided that the provisions of 5 & 6 Will. IV. c. 76, which remedied every "misnomer or inaccurate description in any voting paper required by this Act," did not extend to a misnomer or inaccuracy in a paper required by the Act of 1875 (sr). Does Another point in connection with these statutes, reference upou which there have been conflicting decisions, extend to' occurs in cases where one Act has been expressly another mentioned, and this reference has either been con- in pan nmta-id? fined to the Act itself, or extended to amending Acts or Acts in pari materia. The Statute of Limitations (3 & 4 Will. IV. c. 42) provided that Ireland should not be deemed to be beyond the seas within the meaning of that Act, or of the Act of the twenty-first year of James the First, for the (/) LkuJes V. Lawraice, L. R. 9 Q. B. 374. (fj) Mather v. Brown, L. R. 1 C. T. D. 596. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 2u7 limitation of actions. It was held that Ireland was still a place beyond the seas within 4 & 5 Anne, c. 16, although that Act was In pan materid as one of the Statutes of Limitations (A). Again, the Act 1 Jac. I. c. 9, rendered an innkeeper, who per- mitted an inhabitant to tipple, liable to a penalty, if he was convicted upon the oath of two witnesses. This Act having expired was revived and made perpetual by 21 Jac. I. c. 7, but one witness was substituted for two. Then the Act 1 Car. I. c. 4, provided that an alehouse-keeper who permitted a sti'anger to tipple should incur " the same penalty, and in such manner to be proved as in the former statute of the first year of his late Majesty's reign." It was held that the reference was to the first Act as originally enacted, and not as altered by the inter- mediate Act, and that, consequently, two witnesses were required under 1 Car. I. c. 4 (^'). On the other hand, when it was enacted that the forfeitures and penalties inflicted by 10 Geo. III. c. 44, should be recovered and levied by any justice of the peace, " by such ways and means as the penalties and for- feitures in the said Act of the 9th of Anne are directed to be levied and recovered," it was held that this did not mean that the method of recovery prescribed by the Act of Anne was to be followed, but the method prescribed by subsequent Acts, and especially that which was prescribed by the 10 Geo. III. c. 44 (k). So, too, it is said that when an expirmg Act is revived all other Acts which (h) Lane v. Bennett, 1 M. & W. 70. (t) B. V. Dove, 3 B. & AH. 596. (k) Duch V. Addington, 4 T. E. 447. Digitized by Microsoft® 268 THE VARIOUS KINDS OF STATUTES. have been passed for the purpose of explaining or amending it are revived also as attendant upon it(^). Extension The following instances will show how the words language of One statute have sometimes been extended by byrefer-^^^ reference to another statute which is in pari otherfin '"'^i^^^iu. By the 25 Geo. III. c. 80, a penalty of panma- £59 was imposed on any attorney who took pro- ceedings without having obtained a certificate, and it was provided that this penalty might be sued for by a common informer. The 37 Geo. III. c. 90, inflicted a penalty of the same amount on any attorney who took proceedings without entering his certificate in one of the Courts wherein he was admitted, but made no provision for the recovery of this penalty. It was held that as the Acts were in pari materid, the penalty imposed by the second Act might be sued for by a common informer in the manner which the first Act provided (m). The County Courts Act, 1846 (9 & 10 Vict. c. 95), imposed a penalty on " every clerk, treasurer, high baUiff", or other officer of any such Court" who should act as attorney or agent for any party. The County Courts Act, 1850 (13 & 14 Vict. c. 61), empowered the Lord Chancellor to remove the " clerk, high baUifi", or any assistant clerk " from his ofiice. Reading the two Acts together as in pari materid, the Court of Queen's Bench held that the assistant clerk who was described in the later Act was an ofiicer of the County Court vathin Q) Williams v. Roughcdffv, 2 Burr. 747. (m) Davis v. Edmondson, 3 B. & P. 382. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 269 the provisions of the earher Act, and was hable to the penalty which it inflicted (m). TEMPORARY STATUTES. Temporary Acts are those the duration of which is Hmited by the Legislature itself, and which expire, without the necessity of actual repeal at the end of the time fixed for their continuance. If, however, a temporary Act is made perpetual by another Act, it is in effect perpetual ab initio (o), and though there may be an interval between the expiration of a law and its revival, rights acquired under the original Act are preserved, unless those of others have intervened' during the interval (p). Offences against a temporary Act cannot be punished after its expiration without special pro- vision for that purpose (q). But rights conferred by a temporary Act do not necessarily come to an end with its expiration. In this respect, accord- ing to Parke, B., "there is a difference between temporary statutes and statutes which are re- pealed ; the latter (except so far as they relate to transactions already completed under them) be- come as if they had never existed; but with respect to the former, the extent of the restrictions im- posed and the duration of the provisions are matters (n) Achroycl v. Gill, 5 E. & B. 808. (o) R. V. Swiney, 1 Alcock & Napier, 131. (p) Stepliens v. M'Gargo, 9 Wheaton, 502. {q) TJ. S. V. Tlie Helen, 6 Craneli. 203 ; The Irresistible, 7 Wheaton, 551. Digitized by Microsoft® 270 THE VARIOUS KINDS OF STATUTES. of construction" (r). Thus the 6 Geo. lY. c. 133, which was to remain in force until August, 1826, provided that persons holding commissions as surgeons or assistant surgeons in the army might practise as apothecaries without passing an exami- nation, upon their receiving the certificate required by another statute. It was decided that persons who held commissions before August, 1826, might practise as apothecaries after that date (s). In like manner, where any statute is repealed by a temporary Act, the Court has to Consider whether such repeal is intended to be temporary or per- petual. In one case it was held that such a repeal was intended to be absolute, and that the repealed Act did not revive when the repealing Act ex- pired (;). Where, however, the 46 Geo. III. c. 139, which repealed in part 42 Geo. III. c. 38, was to continue in force until a certain day, it was decided that the provisions of the earher Act were merely suspended until that day, and came into force again when the later Act expired (\ii). Perpetual A statutc which is perpetual in the first instance rendered docs not bocome temporary if by a mistake of the byTnne^'' Legislature it is treated as needing to be continued. coS- ^^ ^<^* of t^e 37 Hen. VIII. as to setting prices ance. of wiue by retail contained no provision limiting its own duration, and was therefore perpetual. Subsequently in the 5th year of Edw. VI. an Act was passed continuing the former Act till the end (?•) Steavenson v. Oliver, 8 M. & W. at -p. 241, (s) Steavenson v. Oliver, 8 M. & W. 2.34. (0 Warren v. Jnudle, 3 East, 205, 211, 212. (u) R. V. Rogers, 10 East, 569. Digitized by Microsoft® THE VARIOUS KINDS OF STATUTES. 271 of the next session. It was held that the Act of 37 Hen. VIII. did not expire, and was not re- pealed at the end of the time to which it was so continued, for "an affirmative continuance of a statute peipetual cannot work an abrogation of the statute" (.r). (x) Prices of wine. Hob. 215. Digitized by Microsoft® CHAPTER VL THE SEVERAL PARTS OP A STATUTE. wiat are The Several parts of a statute which have to be ^^e^par s gQj^gj(jgj.g(j r^j.g j^g title, preamble, clauses or sec- statute, lioxis^ the provisoes, savings, and exceptions con- tained in such clauses, and the schedules annexed to the Act. THE TITLE. i3 the title What eflfect should be given to the title of a statute?* statute has been the subject of much discussion. According to some judges the title is no part of an Act of Parliament ; it ought not in strictness to be taken into consideration at all (o) ; it cannot be resorted to for the purpose of construing the provisions of an Act (6), nor can it cut down enact- ing words which go beyond it (c). " As to the style or title of the Act," it is said in an early case, " that is no parcel of the Act, and ancient statutes were without any title, and many Acts are of (a) Scdkeld v. Johnston, 2 Ex. at pp. 282, 283, per Pollock, C.B. (6) Hunter v. Nocholds, 1 Mac. & G. 640. (c) Hannant v. Foulger, 8 B. & S. at p. 430, per Blackburn, J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 278 greater extent than the titles are" {<}). "It is true," says Lord Holt, " the title of an Act of Parliament is no part of the law or enacting part, no more than the title of a book is part of the book ; for the title is not the law, but the name or description given to it by the makers " (e). " The title," says Lord Hardwicke, "is no part of the Act, and has often been determined not to be so, nor ought it to be taken into consideration in the construction of an Act, for originally there were no titles to the Acts, but only a petition and the King's answer ; and the judges thereupon drew lip the Act into form and then added the title ; and the title does not pass the same forms as the rest of the Act, only the Speaker after the Act is passed mentions the title and puts the question upon it ; therefore the meaning of the Act is not to be inferred from the title " (_/ ). A similar reason for disregarding the title is given by Lord Mansfield, who says that the title is "no part of the law ; it does not pass with the same solemnity as the law itself; one reading is often sufficient for it" {cj). It has been said by Treby, C.J., that the title of Acts of Parliament was compara- tively a new usage, and began about the 11th year of Henry the Seventh (A), while Lord Cranworth states that though the question as to the title of an Act is put from the chair in (d) PowlUr's Case, 11 Kep. 33 b. \e) Mills V. Wilkins, 6 Mod. 62 ; 2 Salkeld, 609. (/) Att.-Ge7i. V. Lord Weymouth, Ambler, at p. 22. Ig) B. V. Williams, 1 W. Bl. at p. 95. (/),) Chance v. Arhims, 1 Ld. Raym. 77. T Digitized by Microsoft® 274 THE SEVERAL PARTS OF A STATUTE. the House of Commons, it is never put in the House of Lords (i). Cannot re- FoUowing: thesB decided expressions of such strict the . . ° ^ effect of eminent judges, the Courts have held in more lan^age. than One case that the effect wjiich is to be given to the general language of statutes is not to be restrained by the use of narrower language in their titles. Thus the 1 Will. IV. c. 18, is entitled, " An Act to explain and amend an Act of the sixth year of his late Majesty George the Fourth as far as regards the settlement of the poor by the rent- ing and occupation of tenements." But the Act itself is not confined by these words to the settle- ments which are specified, and it extends to settle- ments by payment of rates (A;). So the 3 & 4 WiU. IV. c. 67, the title of which is "An Act to amend an Act . . . for the uniformity of process in personal actions," extends to real actions {?). The 56 Geo. III. c. 50, is "an Act to regulate the sale of farming stock taken in execution," but it applies to sales of stock not taken in execution (7?i). May show Qu the other hand, it has been said that " in the inten- . •i-ia r>iT' tion of the modem times the title is the Act oi the Legis- tm?'.^'^ lature,'' although "it does not appear to have been so anciently " (»). While admitting that the title of an Act of Parliament is no part of the law, Wightman, J., says that it may tend to show the (i) Jeffries v. Alexander, 8 H. L. 0. at p. 603. (/c) B. V. Brighthelmstmie, Inhabitants, 1 Q. B. 674. (I) Doe d. HxLdson v. Roe, 18 Q. B. 806. (to) IVilmot V. Rose, 3 E. & B. 563. (n) E. v. Ahp. of Citnterhnry, 11 Q. B. at p. 548, per Lord Demiian, C.J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 275 object of the Legislature (o). It has been sug- gested in Ireland that the title may be called in aid when it throws light on any ambiguity (p), or when it enables the Court to give a consistent meaning to doubtful language in the body of a statute (2). In the United States it has been declared that while the title cannot control plain words in the body of the Act, yet taken with other parts it may assist in removing ambiguities. "Where the mind labours to discover the design of the Legislature, it seizes everything from which aid can be derived ; and in such cases the title claims a degree of notice, and will have its due share of consideration " (?-). In another American case it is laid down that " at the present day the title constitutes a part of the Act, but it is still considered as only a formal part ; it cannot be used to extend or to restrain any particular provisions contained in the body of the Act. It is only when the meaning of these is doubtful that resort may be had to the title, and even then it has little weight. It is seldom the subject of special con- sideration by the Legislature " (s). One or two instances only are to be found in Sometimes IT n 1 iniiuences which the title of an Act has been allowed any the con- influence upon its construction. In the 25 Geo. II. statutes. c. 6, the words " any will or codicil " were limited to wills and codicils of real estate, partly because (0) Johnson v. Upliam, 2 E. & E. at p. 263. (p) Daniel v. Bingham, 4 Ir. L. B. at p. 293. (2) Shaw V. Ruddin, 9 Ir. C. L. R. 214; R. v. Mallow Union, 12 Ir. C. L. E. 35. (r) U. S. V. Fisher, 2 Cranch. Sup. Ct. at p. 386. (s) Hadden v. Ttie Collector, 5 Wallace, at p. 110. T 2 Digitized by Microsoft® 270 THE SEVERAL PARTS OF A STATUTE. the title of the Act was confined to such wills and codicils {pj. As the title of Lord Campbell's Act (9 & 10 Vict. c. 93) was " an Act for compensatirg the families of persons killed," it was held that the Act did not extend to the solace of the wounded feelings of the families which were to be so com- pensated, but was confined to compensation for pecuniary loss (it). In one case the Legislature incorporated the title of an Act by a reference in the first section. The 31 & 32 Vict. c. 89, is entitled " An Act to alter certain provisions in the Acts for the Commutation of Tithes, the Copyhold Acts," &c., and the first section begins, "notwith- standing any provisions in the said Acts con- tained." It has been objected that if the title of an Act is no part of the Act, such a reference as this can have no effect or meaning {x). But even if the title is not usually part of an Act, it may be made part of an Act by reference or incorpora- tion. Under ordinary circumstances it may be part of an Act for the purpose of identification, while it is no part of the Act for the purposes of construction. The short titles which are now given to Acts of Parliament for the convenience of citation are certainly parts of those Acts, for they are enacted in the body of each statute. But it has never been suggested that as they are un- questionably the act of the Legislature and form part of a statute, they are to affect its construc- («) Brett V. Brdt, 3 Addams, 210. \u) Blalce V. Midlavd Bail. Co., 18 Q. B. 93, 109. (x) Boscoe's Nisi Brim, 12 edit. p. 107. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 277 tion, or that they give any clue to the intention of the "Legislature. Before the introduction of short titles it was FuU title fouDd inconvenient to cite Acts of Parhament by be dted! their full titles, which were often cumbrous strings of words and sentences. It was therefore enacted by the 13 & 14 Vict. c. 21, s. 3, that in referring to Acts of Parliament it should be sufficient to cite the year of the King's reign in which the Act was made, the statute or session and the chapter or section, without reciting the title of the Act. A more simple mode of citation is suggested by the Select Committee of 1875 on Acts of Parliament, which is that statutes should be numbered by the year instead of the reign, so that 38 & 39 Vict. c. 100, would be Act 100, 18 7/^. THE PREAMBLE. The preamble has also caused some conflict of Usual opinion, and extreme importance has been attached of pre- to it in some cases, while in others it has received '^™^^''' little or no attention. The iTSual definition of the preamble certainly gives it a prominent place among the means which may be adopted for ascertaining the intention of the Legislature. Chief-Justice Dyer calls the preamble of a statute " a key to open the minds of the makers of the Act, and the mischief which they intended to redress" (ij). Lord Coke employs the same figure : " The re- hearsal or preamble of the statute is a good means to find out the meaning of the statute, and, as it (y) &towel V. Zoiicli, Howd. at p. 369. Digitized by Microsoft® 278 THE SEVERAL PARTS OF A STATUTE. were, a key to open the understanding thereof" (z). Lord Holt considered that the preamble was no part of the statute, but contained generally its motives and inducements (a). In later times it has been said that the preamble affords a good clue to discover the plain object and general intention of the Legislature (6), and that it may be looked at as showing what were the existing circumstances at the time of the passing of any statute (c). Effect Although such wide expressions as these have giVmi to it. been used in the definition of the preamble, the effect which has generally been given to it is by no means so extensive. It has often been decided that, while the preamble may explain doubtful or ambiguous words in the body of the Act, it will not control the operation of an enacting clause which is couched in clear language, although that enacting clause may go far beyond the expressed Cannot object of the statute (cZ). " Supposing that the enacting enacting words are clear," says Lord Denman, C. J., words. " J must say that there is no line of reasoning so dangerous as that which would depi'ive the Statute Law of its fair meaning, or, in other words, repeal (z) Co. Litt. 79 a ; 4 Inst. 330. (a) Mills V. WilJcins, 6 Mod. 62. (6) Halton v. Cove, 1 B. & Ad. at p. 558. (c) Att.-Gen. v. Earl Powis, Kay, 186. (d) R. V. Athos, 8 Mod. at p. 144 ; Perkim v. Sewell, 1 W. Bl. at p. 659, per Lord Mansfield, O.J. ; Crespigny v. Wittenoon, 4 T. R. at p. 793, per Buller, J. ; B. v. Pierce, 3 M. & S. at p. 66, per Lord EUenborough, C.J. ; Trueman v. Lambert, 4 M. & S. at pp. 239, 240, per Dampier, J. ; TFilliams v. Beaumont, 10 Bing. at p. 272, per Bosauquet, J. ; Edwards v. Hodges, 15 C. B. at pp. 488, 489, per Jervis, C.J.; Jeffries y. Alexander, 8 H. L. C. at p. 624, and Hannant v. Foulyer, 8 B. & S. at p. 430, per Blackburn, J'. ; People v. Utica Insurance Co., 15 Jolinson, at p. 390, p>er Sjiencer, J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 279 an Act of Parliament by a judicial construction founded on the mere fact that the remedy pro- vided is more extensive than the evil to be cured. It is enough to say, in general terms, on this doc- trine, that the evil is but the motive for legisla- tion, and the remedy may, both consistently and wisely, be extended, beyond the mere cure of that evil, to every provision which the most comprehen- sive view of the law, the state of manners, and of society at large may appear to render expedient" (e). Where, indeed, the enacting words are not clear, where they are vasrue or ambiefuous, where Unless • 1 1 1 T P n T • T they are a recital that has been careiully nmited to one vague particular evil is followed by words which cannot biguous. properly receive their widest meaning, the pre- amble must not be disregarded. This quahfication is allowed in most of the cases already cited, and is fully stated by Channell, B., in the following passage : — " If, then, the words of the enacting clause, taken together, are words admitting, according to their natural import, of but one meaning, they must prevail, notwithstanding any argument to the contrary otherwise derivable from the preamble. If, on the other hand, the words are not so clear and explicit as to admit of but one clear and distinct meaning, but reasonable effect may be given to the words used in the enacting clauses by applying to them another meaning, then, I apprehend, that the preamble may be looked to to throw light on the subject " (/). («) FellMoes v. Clay, 4 Q. B. at p. 349. See also iJ. v. Marls, 3 East, at p. 165, per Lawrence, J. (/) EugUs V. Chester and Holyhead Bail. Co., 1 Drew. <% Sni. at Digitized by Microsoft® 2S0 THE SEVERAL PARTS OF A STATUTE. Instances Jn the foUowincr cases it has been held that clear in which iir. i j-j.!, enacting and general words qi enactment were not to be gime^ rest]"ained by the preamble. The 37 Geo. III. preamble, c. 123, reclted that evil- disposed persons had attempted to seduce others from their duty and allegiance to His Majesty, and to incite them to acts of mutiny and sedition. The Act then made it a felony for any one to administer an oath or engagement not to reveal or discover any unlawful combination or conspiracy. It was held that the words of the Act were not restricted by the pre- amble to combinatio»s or conspiracies for the pur- pose of mutiny or sedition, but extended to all combinations and conspiracies {g). The 3 Jac. I. c. 10, recited that subjects were charged and burthened in conveying to the gaol felons and other malefactors punishable by imprisonment, and enacted that every person committed to the county 'gaol for any offence or misdemeanour should bear his own charges if he could, and that if he could not they should be defrayed by the parish where he was apprehended. This enactment was not confined by the preamble to cases in which the person appre- hended was committed for trial in the ordinary course of criminal proceedings, but extended to the case of a deserter {K). The 13 Eliz. c. 10, recited that ecclesiastics had made deeds of gift of their goods and chattels, with intent to defeat and defraud their successors. The third section of the p. 536, 31 L. J. Oil. at p. 100. See also Mason v. Armitage, 13 Ves. at p. 36, per Lord Erskine, L.C. ((/) R. V. Marls, 3 East, 157. ill) B. V. Pierce, 3 M. & S. 61. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 281 Act avoided all leases, gifts and grants by any Dean and Chapter which were made for a longer term than was mentioned in the Act. It was decided that these general words were not re- strained by the preamble to leases, gifts and grants made with intent to defeat or defraud, but ex- tended to all leases exceeding the term specified {%). The preamble of the 53 Geo. III. c. 206, stated that difficulties had arisen, and might arise, in bringing actions and suits for recovering debts and enforcing obligations due to the Hope Assurance Company, and the Act provided that the Chairman of the Company might, in his own name, bring actions for recovering any debts or enforcing any claims due to the company. Under these words it was held that an action for a libel upon the company might be brought in the name of its chairman {k). It was recited by the preamble of the 24 Geo. II. c. 40, that immoderate drinking of spirits by the lower classes had increased by rea- son of the number of Hcences. The twelfth section of the Act provided that no action should be brought in respect of liquors unless a debt of twenty shillings should have been contracted at one time. This section was held to extend to a case where a publican had bought liquor for re-sale, and was not confined by the preamble to sales for the purpose of consumption by the purchaser (/). The Carriers' Act, 11 Geo. IV. and 1 Will. IV. c. 68, refers in its preamble to the practice of sending " articles of {%) Dean of York v. MidcUeburgh, 2 Y. & J. 196. (Jc) Williams v. Beaiimo)it, 10 Bing. 260. (l) Umjhes v. Dom, 1 Q. B. 294. Digitized by Microsoft® 282 THE SEVERAL PARTS OF A STATUTE. great value in small compass," and protects carriers from liability for various articles above a specified value. Glass is one of the articles mentioned in the Act, and it vi^as held that a looking-glass came vv^ithin that description, although it vs^as not an article of great value in small compass (m). The 14 Geo. III. c. 78, recited that it v^as expedient to make provisions wdth respect to buildings in Lon- don and Westminster, and section 83 provided for the application of insurance money to the rebuUd- ing of houses which had been burnt down. It was held that this section applied to all parts of Eng- land, and that a reference in the preamble to certain local boundaries did not limit the applica- tion of an enactment aimed at a general and universal evil (/i). In one case the effect of the enactment was in direct opposition to the pre- amble. The 54 Geo. III. c. 159, recited that it was expedient to extend the 19 Geo. II. c. 22, yet it was held that, in spite of the preamble, the later of these two Acts repealed the earlier (o). Effect of The cases already quoted were aU decided upon simUarto the offcct of the general clause prefixed to the preamble, whole of a statuto, and properly called the pre- amble. Sometimes, however, a similar clause is prefixed to one section or to a group of sections, and it may then be distinguished by the name of the recital. The effect of the recital is much the same as the effect of the preamble, and the figure (m) Owe.n v. Burnett, 2 Cr. & M. 353. (n) Ex parte Qorely, re Barker, 4 De Gex, Jones & Smith, 477 ; 34 L. J. Bankruptcy, 1. (o) Michell v. Bro^im, 1 E. & E. 267. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 283 of speech by which Dyer, C.J., and Lord Coke described the preamble has been appHed to the recital by Willes, J. (_p). The question whether general words of enactment in a section are to be limited by its recital has arisen in more than one case. Thus section 26 of 5 Geo. IV. c. 84, recited that felons under sentence of transportation had sometimes received remissions of their sentence, and had by their industry acquired property which it was expedient to protect. The same section enacted that every felon who had received any such remission of sentence might sue for the re- covery of any property acquired since his convic- tion. It was held that the enacting words of the section were not limited by the recital, and that an action might be brought to recover any property acquired after conviction, and not merely such as had been acquired by industry (g). In other cases, however, the enacting words of a instances section have been restrained by its recital. The en^ting fifth section of 11 & 12 Vict. c. 44, recited that it^^^fbeen would conduce to the administration of justice, and ^^^^^^^'^^ render more effective and certain the performance recital. of the duties of justices, and give them protection in the performance of the same, if some simple means were devised by which the legality of any act to be done by such justices might be con- sidered by a Court of competent jurisdiction, and such justice enabled and directed to perform it without risk of an action. The section then enacted that in all cases where a justice refused to {■p) Earl of Shrewsbury v. Beazley, 19 C. B. N. S. at p. 681. {q) Gough v. Davies, 2 K. & J. 623. Digitized by Microsoft® 284 THE SEVERAL PARTS 'OF A STATUTE. do " any act," an application might be made for a rule calling upon him to show cause why he should not do it. The Court of Queen's Bench held that the words " any act " must be restrained by the recital, and must be taken to mean any act against the consequences of which a justice needed protection (?'). So, too, section 18 of 11 Geo. II. c. 19, recited that great inconveniences might happen to landlords, where tenants, having power to determine their leases, gave notice to quit, and yet refused to deliver up possession. It was then enacted that if a tenant gave notice to quit at a certfiin time and did not deliver up possession accordingly, he should pay double rent. It was held that these provisions applied only to vahd notices to quit, and not to notices to quit in which the landlord was not bound to acquiesce (s). Again, the fourth section of 24 & 25 Vict. c. 75, recited that doubts had arisen whether boroughs with separate commissions of the peace, but without separate quarter sessions, were towns corporate within the Alehouse Licensing Act (9 Geo. lY. c. 61), so as to give the justices of such boroughs control over the granting or withdrawing Ucences. The section proceeded to declare that in the con- struction of the Alehouse Licensing Act the words " county or place " included every borough having a separate commission of the peace, though it might not have a separate Court of Quarter Sessions. One of the provisions of the Alehouse Licensing Act was that any justice before whom a penalty (r) U. V. Percy, L. R. 9 Q. B. 64. (s) Johnstone v. Hiiddleston, 4 B. c&; C. 922, 936. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 285 under that Act was i-ecovered, miglit award pari of it to the treasurer of the " county or place " for which he acted. It was held that a justice of a borough, which had a separate commission of the peace but not a separate Court of Quarter Sessions, had no power to award any part of the penalty to that borough. The recital of the section which applied the provisions of the Alehouse Licensing Act to such boroughs showed that the single object of the section was to meet the case of granting licences, and therefore the words "county or place" did not include such a borough for the purpose of penalties being awarded to its treasurer (i). The cases in which a similar effect has been instances - ,-iy-, of enacting given to the preamble are not so numerous. W here words the 17 Geo. III. c. 26, referred in its preamble to^^^^gj^by " the pernicious practice of raising money by the preamble. sale of life annuities," and enacted that grants of life annuities should be registered, it was held that the object of the Act as disclosed by the preamble was to prevent hard bargains, and, therefore, the enactment did not apply to annuities granted for a consideration which was not pecuniary (?/). It was held, too, that the Annuity Act (53 Geo. III. c. 141) being an Act in 'pari materid with the Act 17 Geo. III. c. 26, and having the same objects in view, must be read as if the preamble of the earlier Act had been virtually incorporated with it, and must be limited accordingly {x). It may be difficult to reconcile the principle laid down (t) ]Vinn V. Mossmaa, L. B. 4 Ex. 292. (m) Cyspi'J'i!/ V. Wittenonn, 4 T. K. 790. \x) Blake V.' Attersoll, 2 B. & C. 875 ; Evaft v. Ifmit, 2 E. & B. 374. Digitized by Microsoft® 286 THE SEVERAL PARTS OF A STATUTE. in the last two cases with that established by the House of Lords in a much later decision, where it is said that if a second Act is passed to aid the application of one which had gone before, the enacting words of the second Act are not to be confined by the preamble of the first {y). Conflicts But there are other cases in which graver and ' more direct conflicts have arisen. The preamble of the Tithe Prescription Act (2 & 3 Will. IV. c. 100) ran thus : — " Whereas the expense and in- convenience of suits instituted for the recovery of tithes may and ought to be prevented by shorten- ing the time required for the valid establishment of claims of a inodus decimandi, or exemption from or discharge of tithes ;" and the enactment was that " all claims of or to any exemption from or discharge of tithes shall be sustained and deemed good and valid in law upon evidence showing the enjoyment of the land without payment or render of tithes for the full period of thirty years." It was held by Wigram, V.-C, that the generality of the enacting words was limited by the preamble to cases where, before the passing of the Act, an exemption could have been shown, and that the effect of the enactment so limited was not to create a new exemption, but to shorten the time formerly required for an exemption (z). The ques- tion then came before the Court of Queen's Bench, and the judges were equally divided, Patteson and Coleridge, J J., agreeing with the Vice-Chancellor, while Lord Denman, C.J., and Williams, J., held (y) Cophiiid V. Bavies, L. E. 5 H. L. 358, 378, 389. (z) Salkeld v. Johnston, 1 Hare, 196. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 287 that the enacting words could not be cut down, and that the exemption was general (a). A similar division of opinion occurred in the Court of Common Pleas, where Tindal, C.J., and Cresswell, J., adopted, while Coltman and Erie, JJ., rejected, the view of the Vice-Chancellor (6). But the Court of Ex- chequer unanimously decided that the enacting words could not be cut. down by the preamble (c), and the opinion which had thus received the sanc- tion of the majority of the judges was adopted finally by Lord Chancellor Cottenham {d). All the learning that can be collected on the subject of the preamble, and of its effect on the enacting clauses, all that can be said for and against either contention raised in those cases, will be found in the elaborate judgments pronounced by the judges by whom those cases were decided. It is sufficient here to record the controversy without seeking to take part in it. In earlier times a less serious conflict had arisen between Lord Chancellor Cowper on the one hand, and Lord Hardvncke, L.C., and Parker, C.B., on the other, as to the effect of a recital in the 21 Jac. I. c. 19. This recital was that "it often falls out that many persons before they become bank- rupts do convey their goods to other men upon good consideration, yet do still keep the same and are reputed the owners thereof." Then followed the enactment which has been repeated in so ma,ny (a) Fellowes v. Clai/, 4 Q. B. 313. (b) Salkeld v. Johnston, 2 0. B. 749. (c) Salkeld v. Johnston, 2 Ex. 256. (d) Salkeld v. Johnston, 1 Mac. & G. 242. Digitized by Microsoft® 288 THE SEVERAL PARTS OF A STATUTE. Bankruptcy Acts and has led to so many decisions, that goods in the order and disposition of bank- rupts with the consent of the true owner should be liable to the bankrupts' debts. Upon these words the question arose whether the enactment extended to all goods, or was restrained by the preamble to such goods as had originally been the property of the bankrupt. Lord Cowper, L.C., took the former view (e) ; and the words which are attributed to him are worth quoting : "I can by no means allow of the notion that the preamble shall restrain the operation of the enacting clause ; and that because the preamble is too narrow and defective, therefore the enacting clause which has general words shall be restrained from its full lati- tude and from doing that good which the words would otherwise and of themselves import ; which (with some heat) his Lordship said was a ridiculous notion " (/). This opinion was not shared by Lord Hardwicke, L.C., or by Parker, C.B., before whom the same question was afterwards discussed, and both of whom considered that the enacting words in this case ought to be limited by the re- cital {g). But the actual point was not decided in either of these cases, and when it came before the Court of King's Bench twenty-five years later. Lord Mansfield, C.J., dehvered the unanimous judgment of that Court in accordance with the opinion of Lord Cowper, to the effect that the (c) Gopeman v. Gallant, 1 P. Wms. .314. (/) Copeman v. Gallant, 1 P. Wms. at p. 320. {g) Ryall V. Rolle, 1 Atk. 165, reported as Ri/all v. Roioles, 1 Ves. Sen. .348. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 289 enacting words of 21 Jac. I. c. 19, were not re- strained by the recital (Ji). In another instance the preamble was more fortu- nate, and came out of the judicial conflict victorious over the enactment. The 25 Geo. II. c. 3, recited that by the Statute of Frauds devises and bequests of lands were required to be executed in a certain manner, and that doubts had arisen who were to be deemed legal witnesses. It then enacted that if any person should attest "any will or codicil" by which any legacy was given to him, such legacy should be void. It was held by Sir Wilham Grant, M.R., that the words of the Act extended to all wdlls and codicils, and were not restrained by the preamble to wills of real estate (i). But it was afterwards decided by Sir John Nicholl, that the enactment was so restrained by the preamble (^), and his decision was affirmed by the High Court of Delegates (Z), and was followed by Sir John Leach, M.R. (m) and Sir L. Shadwell, V.-C. («). In addition to what has been said already with Preamble . _ . or recital regard to the part oi the statute now under con- may sideration, we may refer to the suggestion of Lord enacting Abinger, C.B., that the preamble may extend, ^°''^^- although it cannot restrain, the effect of a par- ticular clause (o). In one instance the enacting words of a section were materially extended by its {h) Mace v. CaMl, 1 Cowp. 232. (j) Lees V. Summersffill, 17 Ves. 508. (k) Brett v. Brett, 3 Addams, 210. (I) 1 Hagg. Ecol. Cas. 58 (note). (to) Emanuel v. Constable, 3 Russ. 436. (n) Foster v. Banbury, 3 Sim. 40. (o) ff^alJeer v. Richardson, 2 M. cfe W. at p. 889. U Digitized by Microsoft® 290 THE SEVERAL PARTS OF A STATUTE. recital. The twelfth section of 17 Geo. II. c. 38, recited that great sums were lost by parishes owing to persons removing without paying rates, and enacted that persons removing and those coming in should be liable to pay rates in proportion to the time during which they occupied the premises. It was held that as the object of the section ap- peared from tlie recital to be the protection of the parish, an occupier who removed was liable for the poor rate until the time when a new tenant entered (^). Another suggestion to which some reference may be made is contained in the words of an Irish judge, that "the preamble of an Act is not to control enactments containing something essentially different from the preamble, but at the same time it is properly resorted to where we find the enacting parts are all connected vdth the preamble and with the mischief there recited to exist" (2). CLAUSES OR SECTIONS. Statutes The division of Acts of Parhament into sections, divided whicli was formerly described as " a mere arbitrary tions. thing " (r), and one which was not warranted by the Parliament roll (s), has now received legislative sanction. By the 13 & 14 Yict. c. 21, s. 2, it is provided that " all Acts shall be divided into (p) Edwards v. Rusholme, L. R. 4 Q. B. 554. {q) Mitchell v. Blahe, 1 Hud. & Br. at p. 200, per Jebb, J. (r) R. V. Newark, Inhabitants, 3 B. & C. at p. 63, per Littledale, J. (.s) PFells Y. Iggulden, 3 B. & C. at p. 1 89, per Bayley, J. ; Jil. v. Threlhelil, Inhabitants, 4 B. & Ad. at pp. 235, 236, per Parke, J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 291 sections if there be more enactments than one, which sections shall be deemed to be substantive enactments without any introductory words. " But the rule which is introduced by this statute does not alter the principle that the whole of each Act must be considered in all questions of construction, or render any one section in an Act independent of the others. All sections, indeed, are not to be construed alike merely because they form part of one statute. " There is no impropriety," says Best, C.J., "in putting a strict construction on a penal clause, and a Hberal construction on a reme- dial clause, in the same Act of Parliament " {t). Where, however, there are sections in an Act of incou- Parliament which are inconsistent with each other, sections to , . -, . Til , . be recon- one must necessarily give way, and the question ciied if sometimes arises whether one section repeals '^°^"* ®' another section in the same Act, or merely modifies some of its provisions. Such sections are to be taken together, so that, if possible, some effect may be given to each. "It is," says James, L.J., "a cardinal principle in the interpretation of a statute, that if there are two inconsistent enactments it must be seen if one cannot be read as a qualifica- tion of the other " {u). As a general rule the earlier section is controlled by the later. Thus the words of the first section of the Prescription Act (2 & 3 Will. IV. c. 71), which were large enough to include rights claimed in gross, were restrained by the words of the fifth section {x). So a section • it) Short V. Hubbard, 2 Bing. at p. .355. (m) Ebbs V. Boiilnois, L. R. 10 Cli. at p. 484. (.r) Shuttleworth v. Le Fleminc/, 19 C. B. N. S. 687. U 2 Digitized by Microsoft® 292 THE SEVERAL PARTS OF A STATUTE. authorising a general rate in a parish upon the owners or occupiers of all houses, was controlled by a subsequent section referring to the existence of charitable institutions which did not contribute to the exigencies of the parish, and providing that no settlement should be acquired by residence in such institutions. It was held that the effect of this later section was to restrain the general pro- visions of the earlier section, and to exempt such institutions from liability to be rated (y). But if the earlier section contains specific and precise directions, a later section, which is couched in general language, and which is at variance with those special provisions, will not deprive them of their full force and effect (z) . " Wherever there is a particular enactment and a general enactment in the same statute, and the latter taken in its most comprehensive sense would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply " («). " The rule is where a general intention is expressed, and the Act expresses also a particular intention incompatible with the general intention, the particular intention is to be con- sidered in the nature of an exception " (6). Difficulty The desire which is felt by the Courts to recon- ciling cile two inconsistent sections in one Act, instead of them. (j/) B. V. Si. George's, Southward, 10 Q. B. 852, 863. (z) De Winton v. Mayor of Brecon, 26 Beav. 633, 543. (a) Pretty v. Solly, 26 Beav. at p.^610, per Eomilly, M.E., who cites Standen v. University of Oxford, Sir W. Jones, 17, and Bonham's Case, 8Eep. 118 b. (6) Ghurchill v. Crease, 5 Bing. at p. 180, per Best, C.J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 293 declaring the later section a repeal of the eaflier, was clearly shown in one case where no little ingenuity was needed to effect that purpose. Section 119 of the London City Small Debts Extension Act, 1852, provided that if a plaintiff brought in the Superior Courts an action which might have been tried in the Court held under the provisions of that Act, he should have no costs unless he recovered more than £50 in contract, or £5 in tort. Section 120 provided that if a plaintiff sued in a Superior Court, and recovered less than £20 in contract, or £5 in certain specified actions of tort, he should have no costs, and no suggestion need be entered on the record to deprive him of them. It was held that as both the sec- tions received the Royal Assent at the same time, it could not be supposed that one was intended to repeal the other if they could possibly be reconciled, and that effect might be given to both the sections by considering that under section 120 a plaintiff was deprived of costs without a suggestion being entered on the record, but that he was not deprived of costs by section 1 ] 9, unless a suggestion was entered (c). In another case, where two sections showed a similar inconsistency, the Court declined to follow this precedent, and held that the later section repealed the earlier {d). The marginal notes which are appended to the Marginal p . notes no several sections form no part of those sections, or part of of the statutes themselves, so as to throw light (c) Gastrique v. Page, 13 C. B. 458. (d) Re Holt, L. R. 4 Q. B. D. 29, referred to more fully in the chapter on Repeal. Digitized by Microsoft® 294 THE SEVERAL PARTS OF A STATUTE. upon questions of construction (e). They are merely abstracts of the clauses intended to catch the eye (/), and to make the task of. reference easier and more expeditious. Although, in one case Jessel, M.E,., gave effect to a marginal note, and declared that such notes formed part of Acts of Parliament, and had within his own knowledge been the subject of motion and amendment (gr), his attention does not seem to have been called to the clear and positive language of Willes, J. (A), and the Court of Appeal has dissented from his opinion ({). In the last case Baggallay, L. J., said (/c) : "I never knew an amendment set down or discussed upon the marginal note to a clause. The House of Commons never has anything to do with the amendment of the marginal note. I never knew a marginal note considered by the House of Commons." Where, indeed, a marginal note, instead of being a mere abstract of a section, gave express directions as to the form of an order which it accompanied, and was on the margin of the Parliament roll, it was held to be a part of the Act of Parliament (Z). General Sometimes a group of sections is preceded by a headingsto , ,. , . . , groups of general heading, which, though introduced merely sections. if) Claydon v. Oreen, L. E. 3 C. P. at p. 522, per Willes, J. ; Birt- ivhistle V. Vardill, 7 CI. & Fin. at p. 929, per Tindal, C.J. (/) Att.-Gen. v. G. E. Rail. Co, L. R. 11 Ch. D. at p. 465, per James, L.J. (ff) Be Venour's Settled Estates, L. R. 2 Ch. D. at p. 525. (/i) Claydon v. Green, L. R. 3 0. P. at p. 522. (i) Att.-Gen. v. G. E. Rail. Co., L. R. 11 Ch. D. 449. (/,■) At p. 461. \}) R. V. Milverlnn, 5 A. & E. 841. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 295 for the purpose of aiding reference and of ear-mark- ing a set of clauses so as to enable them to be readily incorporated in other Acts of Parliament (hi), is considered part of the statute, and may materially affect its construction. Thus there was a group of sections in the Bankruptcy Act, 1849, 12 & 13 Vict. c. 106, to which a general heading was pre- fixed " with respect to transactions with the bank- rupt." One of the sections under that heading was section 137, which enacted that a judge's order by consent, given by any trader who was defendant in a personal action, should be void, unless it was filed within twenty-one days. It was held that this section was confined by the general heading to traders who became bankrupt, and did not apply to all traders (?i). So the words in section 94 of the Lands Clauses ConsoKdation Act (8 & 9 Vict. c. 18), " if any such land shall be so cut through and divided," do not refer to the land mentioned in the section immediately preceding, but to the land mentioned in the general heading to the group in which section 94 is included (o). Again, sections 6 to 24 of the Railway Clauses Consolidation Act, 184.5 (8 & 9 Vict. c. 20), are preceded by a general heading, "with respect to the construction of the railway and the works connected therewith." It was held that this heading so Hmited the words of the sections that the compensation which they provided applied only to the case of injury caused (m) Brand, v. Hammersinith Rail. Go., L. E. 7 H. L. at p. 217, per Lord Cairns. (n) Bryan v. Child, 5 Ex. 368. (o) E. C. Rail. Go. v. Marriage, 9 H. L. C. 32. Digitized by Microsoft® 2'JC THE SEVERAL PARTS OF A STATUTE. by the construction, and not to tlie case of injury- caused by the use, of the railway (^:>). Where, however, one of the sections in a group covered by a general heading obviously refers to a subject-mat- ter which is separate and distinct from that specified in the heading and dealt with in the remaining sections, it must be construed without regard to the heading. Thus section 68 of the Lands Clauses Act (8 & 9 Vict. c. 18), which gives compensation where land is injuriously affected, forms one of a group prefaced by the words " with respect to the purchase and taking of lands otherwise than by agreement." It has been shown both by Lord Cranworth (g-) and Lord Cairns (r) that this heading does not limit the effect of section 68, or render it " an enactment relating to the taking of lands by compulsion when it obviously has reference to no such purpose." The inter- Amoug particular sections, the one which of all clause. others has occupied the time and attention of the Courts is the interpretation clause. Severe censures have been passed upon this section by some of the judgesi It has been said that a very strict con- struction should be placed upon a section which declares that one thing shall mean another (s), that interpretation clauses embarrass rather than assist the Courts in their decisions (£), and frequently do (p) Brand v. Hammersmith Rail. Co., 7 B. & S. 1, L. R. 1 Q. B. 130, 2 Q. B. 223, 4 n. L. 171. (g) Broadbent v. Imperial Gas Go., 7 De G. M. & G. at pp. 447, 448. (r) Brand v. Hammersmith Rail. Co., L. R. 7 H. L. at p. 217. (s) Allsop V. Bay, 7 H. & N. at p. 463, per Pollock, C.B. (t) R. V. Cambridgeshire, Justices, 7 A. & E. at p. 491, per Lord Denman, G.J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 297 a great deal of harm by giving a non-natural sense^ to words which are afterwards used in a natural sense without the distinction being noticed [u). " It has been very much doubted," says Lord St. Leonards, L.C., "and I concur in that doubt, whether these interpretation clauses, which are of modern origin, have not introduced more mischief than they have avoided, for they have attempted to i)ut a general construction on words which do not admit of such a construction in the different senses in which they are introduced in the various clauses of an Act of Parliament " (x). Other judges have observed that the real purpose of an interpre- tation clause is to define the meaning of words when nothing else in the Act is opposed to the particular sense which is thus placed upon them. " When a concise term is used which is to include many other subjects besides the actual thing designated by the word, it must always be used with due regard to the true, proper, and legitimate construction of the Act " (y). An interpretation clause is not to receive "a rigid construction, is not to be taken as substitut- ing one set of words for another, nor as strictly defining what the meaning of a word must be under all circumstances. It merely declares what persons may be comprehended within that term where tlie circumstances require that they should " {^•). " An interpretation clause should be used for the purpose (m) Lindsay v. Cundy, L. E. 1 Q. B. D. at p. 358, per Blackburn, J. (a) Dean of Ely v. Blks, 2 De G. M. & G. at p. 471. ly) Midland Rail. Co. v. Ambergate Rail. Co., 10 Hare, at pp. 369, 370, per Wood, V.-C. {£) R. V. Cambridgeshire, Justices, 7 A. & E. at p. 491, per Lord Deniaan, G.J. Digitized by Microsoft® 298 THE SEVERAL PARTS OF A STATUTE. of interpreting words which are ambiguous or equivocal, and not so as to disturb the meaning of such as are plain " (a) Notfoi- Acting upon these principles, the Courts have strictly, in some cases given words a narrower and in others a more extended meaning than a literal compliance with the interpretation clause would warrant. The first of these constructions was placed upon the Statute of Limitations (3 & 4 Will. IV. c. 27), which provided that "rent" should extend to all rent, and that " land " should extend to tithes. It was held that the word " rent," when used in the Act, did not include rent reserved by lease (6), and that the word " land " did not include tithes as a chattel, but merely an estate in tithes (c). The second construction was placed upon the 15 & 16 Vict. c. 85. where an interpretation clause provided that the word "parish" should mean every place having separate overseers of the poor, and separately maintaining its own poor. It was held that the word parish, when used in the Act, was not con- fined to such places {d). Again, the Lands Clauses Act (8 & 9 Vict. c. 18) defined justices as meaning justices of the peace acting for the county or place where the matter requiring their cognisance arose. Section 33 of the Act required that before an arbitrator entered into the consideration of matters referred to him he should make a declaration in the presence of a justice. It was held that this (a) B,. V. Pearce, L. R. 6 Q. B. D. at p. 389, per Lush, J. (6) Grant v. Ellis, 9 M. & W. 113. (c) Vean of Ehj v. Bliss, 2 De G. M. & G. 459. Id) R. V. Sudbury Burial Board, E. B. & E. 264. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 299 provision was not limited by the interpretation clause, and that such a declaration need not be made before a justice of the peace for the coimty where the lands to be taken were situated (e). In other cases it has been considered that the " include - Legislatiire has intentionally given words a more extend, extended meaning than they would ordinarily define. receive. The interpretation clause sometimes pro- vides that a certain word shall " include " a variety of things, and it is then held that this phrase is used by way of extension, and not as giving a definition by which other things are to be excluded (/). Thus where the Merchant Shipping Act, 1854(17 & 18 Vict. c. 104), provided that " ship " should include every description of vessel used in navigation not propelled by oars, it was held that a vessel propelled by oars was not excluded ((/). It was declared by the Petroleum Act, 1868 (31 & 32 Vict. c. 56), that " petroleum " should include all such rock oil, &c., as gave olf an inflammable vapour at a temperature of less than 100 degrees Fahrenheit. But petroleum itself was held to be within the Act, even if it did not give off an inflammable vapour below the specified tem- perature (A). To all such cases the words used by Blackburn, J., in reference to the Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), (e) Bcmes. v. South Staffordshire Rail. Go., 2 L. M. & P. 599 ; 21 L. J. M. C. 52. (/) R. V. Kershaw, 6 E. & B. at p. 1007 ; 26 L. J. M. C. at p. 23, per Erie, J. {g) Ej: parte Fcnjiison, L. E. 6 Q. B. 280, 291. (h) Jones v. Cook, L. E. 6 Q. B. 505. Digitized by Microsoft® 300 THE SEVERAL FARTS OF A STATUTE. have a forcible application. " It does not follow that because the expression ' new street ' is to in- clude certain other things, we are to say it does not include its own natural meaning" {%). So, too, the Lands Clauses Act (8 & 9 Vict. c. 18) pro- vided by the interpretation clause that the word sheriff in the Act should include under-sheriff. Section 39 enacted that where a warrant was issued to assess compensation, and the sheriff was interested in the matter in dispute, application was to be made to the coroner. It was held, how- ever, that if the under-sheriff was interested in the matter in dispute, the warrant was to be issued to the sheriff and not to the coroner (^). Again, the Public Health Act, 1848 (11 & 12 Vict. c. 63), contains an interpretation clause by which the word " street " is to apply to and include any high- way not being a turnpike road. It was held that a way which would properly be described in ordi- nary language as a street did not cease to be a street because it was part of a turnpike road, for the interpretation clause was not restrictive, but enlarged the ordinary meaning of the word street (/). PROVISOES, SAVINGS AND EXCErTIONS. Saving The saving clauses, provisoes, and exceptions, provlso^"'^ which are often contained in the sections of Acts (i) Pound V. Plumstead Board of TVorks, L. R. 7 Q. B. at p. 194. (k) TForsley v. South Devon Rail. Co., 16 Q. B. 539. (l) Nutter V. Accrington Local Board, L. R. 4 Q. B. D. 375. Digitized by Microsoft® THE SEVERAL FARTS OF A STATUTE. 301 of Parliament, next demand our attention. There apparently -,,..., identical. does not appear to be any real distinction between a saving clause and a proviso. Each of them is, as Bayley, J., says of the latter (m), "something engrafted on a preceding enactment." Each is " merely an exception of a special thing out of the general things mentioned " in the statute (li). Each is " a Hmitation or exception to a grant made or authority conferred, the effect of which is to declare that the one shall not operate or the other be exercised unless in the case provided " (o). The office of each is to except some particular case from a general principle where from peculiar circum- stances attending the case there would be some hardship if it were not excepted (^j) ; to qualify, restrain, or otherwise modify the general language of an enacting clause, or to exclude some possible ground of misinterpretation that might exist if cases which the Legislature did not mean to include were brought within the statute (g). While, however, these principles seem to apply Suggested „ . , -^ ^. , ^f -^ distinction equally to a proviso and to a savmg clause, so that between the two things might be considered identical in substance and differing only in name, one very marked distinction is made between them by some of the early writers. It is said that "where the (m) R. V. Taunton, St. James, 9 B. & C. at p. 836. (ii) Halliswell v. Corporation of Bridgewater, 2 Anderson, at p. 192. (o) Voorhses v. Bank of U. S., 10 Peters, at p. 471. (p) Huidehoper's Lessee v. Bwrus, 1 Washington Circuit Court Reports, at p. 119. (2) Wayman y. Southard, 10 Wheaton, at p. 30 ; Minis v. U. S., 15 Peters, at p. 44.5, per Story, J. Digitized by Microsoft® proviso. 302 THE SEVERAL PARTS OF A STATUTE. proviso of an Act of Parliament is directly repiig- nant to the purview, tlie proviso shall stand and be a repeal of the purview, as it speaks the last in- tention of the ina,kers " (r). On the other hand, we are told that a saving clause directly repugnant to the purview is void ; " as if the manor of which J. S. is tenant in fee simple is given to the King saving the estates of all persons, the estate of J. S. is not saved, because it would make the express gift to the King void" (s) ; and where the attainder of the Duke of Norfolk was declared to be void, saving the leases made by King Edward the Sixth, that saving was held inoperative (t). Import- A proviso is of great importance when the Court ance and ^ .-,.-. eifect of has to cousider what cases come withm the enacting part of a section (tt), and it is always to be con- strued with reference to the preceding parts of the clause to which it is appended (cc). Thus where the 28th section of the 7 & 8 Yict. c. .96, ended with a proviso that no debtor should be imprisoned on any process for more than twelve calendar months for any debt incurred before the filing of his peti- tion, in case a final order for protection from process was refused, it was held that this did not refer to all cases where the final order was refused, but only to such cases of refusal as were suggested in the preceding part of the section (y). The mere fact, indeed, that a proviso was printed as part of (r) Att.-Oen. v. Chelsea Waterworlcs, Ktzgibbon, 195. (s) Case of Alton Woods, 1 Bep. at p. 47. {t) Walsingham's Case, Plowd. at p. 565. (rt) Baines v. Swainson, 4 B. & S. at p. 278, per Wightman, J. (x) Ex parte Partington, 6 Q. B. at p. 653. (y) Ex parte Partington, 6 Q. B. 649. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 303' any one section did not, at the time when statutes were not divided into sections upon the roll, limit the effect or construction of the proviso (z). " The question whether a proviso in the whole or in part relates to and qualifies, restrains, or operates upon the immediately preceding provisions only of the statute, or whether it must be taken to extend in the whole or in part to all the preceding matters contained in the statute, must depend, I think, upon its words and import, and not upon the division into sections that may be made for convenience of reference in the printe.d copies of the statute " (a) . Where an enacting claiise which is general in Proviso or • n ^^ t n • saving its language and objects is followed by a proviso, cannot that proviso must be construed strictly {h). It enacting cannot enlarge the words of the enacting clause, and therefore a proviso to the effect that ships of war belonging to the Crown should not pay a toll granted in respect of lighthouses, did not render other ships belonging to the Crown liable to pay that toll (c). "A saving clause," said Wood, Y.-C, " cannot be taken to give any right which did not exist already. 'Saving' means that it saves all the rights the party previously had, not that it gives him any new rights " {d). If a substantive enactment is expressly repealed, anything which is (z) B. V. ThrelMd, Inhabitants, 4 B. & Ad. at pp. 235, 236 ; Wells V. Irjgulden, 3 B. & C. at p. 189, per Bayley, J. {a) R. V. Km-arh, Inhabitants, 3 B. & C. at p. 71, per Holroyd, J. (6) U. S. V. Dickson, 15 Peters, at p. 165, per Story, J. (c) Smithett v. Blythe, 1 B. & Ad. 509. {d) Arnold v. Ma^/or of Gravesend, 2 K. & J. 574, 591. Digitized by Microsoft® 304 THE SEVERAL PARTS OF A STATUTE. merely a proviso appended to it is repealed by implication (e). tionbe- ^^® substantial distinction between a proviso tween and an exception is that the former follows an provisoes , •*- _ . . . •/> t and ex- enacting clause, and qualifies it in certain specmed cep ions, pg^ggg^ while the latter is part of the enacting clause, and is of general application. If, therefore, an action, indictment, information, or conviction is based upon the words of any statute, a proviso need not be noticed by the plaintiff or prosecutor, but he must negative an exception. " Wherever," says Parke, B., "a statute inflicts a penalty for an offence created by it upon conviction before one or more justices of the peace, but there is an excep- tion in the enacting clause of persons under par- ticular circumstances, it is necessary to state in tlie information that the defendant is not within any of the exceptions. And it seems immaterial whether the exception be in the same section or in a preceduig Act of Parliament referred to in the enacting clause. But where the exemption is con- tained in a proviso in a subsequent section or Act of Parliament, it is matter of defence, and, there- fore, it is not necessary to state in the conviction that the defendant is not within the proviso " {/). Thus, where the Municipal Corporations Act (5 & 6 Will. IV. c. 76) imposed a penalty on any person acting as councillor after he became disqualified, but provided that no action for the penalty should be brought except by a burgess, it was held that, («) Horsnail v. Bruce, L. B. 8 C. P. at p. 385, per Bovill, C.J. (/) Thibault v. Gibson, 12 M. & W. at p. 95, citing 1 Wms. Saund., 262 a. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 305 although this proviso was contained in the same section as the enacting words, yet, as it was in a subsequent part of the section, the plaintiff need not state in his declaration that he was a bur- gess ((/). But where 24 & 25 Vict. c. 99, enacted that whosoever without lawful authority or excuse, (proof whereof was to lie on the party accused,) had in his possession any die impressed with the resemblance of either side of any current coin, shovdd be guUty of felony, it was held that, though the burden of proof was shifted, the lawful authority or excuse must be negatived in the indictment (Ji). Even where it is provided that informations or complaints need not negative any exemption, ex- ception, proviso, or condition, and that if they are negatived a prosecutor need not give any evidence in support of such an allegation, but the defendant must prove the afSi'mative, it has been held that an exception forming part of the enacting words of a statute must be negatived by a complainant. Thus, where the 11 & 12 Vict. c. 49, imposed a penalty on a licensed victualler selling drink on Sunday before a certain hour in the afternoon, except as refreshment for travellers, it was held that the burden of proving that hquor had been sold to persons who were not travellers was cast on the informer (?) . {g) Simpson v. Ready, 12 M. & W. 736, 739, 740. ih) R. V. Harmy, L. R. 1 C. C. R. 284. {i) Taylors. Humphries, 17 C. B. N. S. 539. The same construction was put upon similar words in the 2 & 3 Vict. c. 47, Davis v. Scrace, L. R. 4 C. P. 172. Digitized by Microsoft® 306 THE SEVERAL PARTS OF A STATUTE. SCHEDULES. Variance The Only part of a statute whicli remains to be Act and noticed is the schedule. If there is any variance the Act^' or contradiction between the enacting parts of an prevails, p^^i^ ^^^ ^]^g forms contained in the schedule the enacting part must prevail, and " the form which is made to suit rather the generality of cases than all cases must give way" (^). The 8 & 9 Vict. c. 87, which was passed for the prevention of smuggling, enacted that an information might be laid before one justice, but could only be heard before two. Section 107 of the Act provided that all informations exhibited before any justice or justices of the peace for any oifence against the customs should be drawn in the form or to the effect in the schedule annexed to the Act. All the forms in the schedule used the words " gives us, two of Her Majesty's justices of the peace, to understand." It was held, however, that the forms in the schedule did not override the provisions of the Act, and that an information might be laid which used the words " one of Her Majesty's justices of the peace " (^). In another case it is said that the schedule to an Act is not itself an enactment, though it may aid ia explaining one which is doubtful (m). A form given in a schedule, especially if there is no reference to it in the body (J;) R. V. Baines, 12 A. & E. at p. 227. (0 R. V. Russdl, 13 Q. B. 237. im) B. V. Epsom, Inhabitants, 4 E. & B. at pp. 1008, 1012, per Lord Campbell, O.J. Digitized by Microsoft® THE SEVERAL PARTS OF A STATUTE. 307 of the Act, is merely an example (n), and is " only to be followed implicitly so far as the circumstances of each case may admit" (o). The positive words of one Act (2 W. & M., Sess. 1, c. 5, s. 2), pro- viding that two sworn appraisers should value goods distrained for rent, were held not to be repealed by the schedule appended to 5 7 Geo. III. c. 93, which specified 6d in the pound as the charge for appraisement, " whether by one broker or more " (jji). But in a few cases it has been declared that}^^^''® . , . forms are forms contamed m the schedules to Acts of Parlia- mipera- ment must be strictly followed, and that any departure from them was fatal. Thus where the words employed by the 13 Geo. III. c. 78, were " the forms in the schedule shall be used," it was held that this was imperative, and an order by justices stopping up an old footpath was set aside for non-compliance with the form prescribed by the Legislature (g") . So where the form of a certificate in the schedule to an Act for regulating the con- finement of lunatics left a blank for the "street and number of house " where a medical examina- tion took place, it was held that a certificate which stated only the name of a town was insujSficient (r). So, too, it was decided by Wood, V.-C, and on appeal by Lord Campbell, L.C., that the forms of transfer and mortgage given by the Merchant (to) Hennah v. Whyman, 2 C. M. & E. 239, per Parke, B. (o) Bartlett v. Gihhs, 5 M. & G. at p. 96, per Tindal, C.J. (y) Allen v. Flicler, 10 A. & E. 640. {q) Damson v. Oill, 1 East, 64. (r) R. V. Finder, 24 L. J. Q. B. 148. X 2 Digitized by Microsoft® 308 THE SEVERAL PARTS OF A STATUTE. Shipping Act, 1854, must be substantially followed, though the Act did not contain negative words, or declare that transfers and mortgages in any other form should be null and void (s), (s) Liverpool Borough Bank v. Turner, IJ. & H. 159 ; 29 L. J. Ch. 827 ; 2 De G., F. & J. 502 ; 30 L. J, Ch. 379. Digitized by Microsoft® CHAPTER VII. THE REPEAL OE STATUTES. Statutes may be repealed either by express words contained in later Acts of Parliament, or by implication. Little need be said on the subject of express Express repeal. We have seen that it is within the power statates. of any Parliament to repeal any of the Acts passed by its predecessors, and that it is not withia the power of any Parliament to prevent the repeal of any of its own Acts, or to bind its successors. Formerly, however, by rules of both Houses, an Act could not be altered, or repealed, in the same session as that in which it passed, unless a clause was inserted expressly reserving such a power (a). May be in But by Lord Brougham's Act, 13 & 14 Vict. c. 21, It^^' s. 1, " every Act to be passed after the commence- ^^°l'_ ment of this Act may be altered, amended or repealed in the same session of Parliament, any law or usage to the contrary notwithstanding." Some further provisions with regard to repeal were made by the same statute. Before its pass- Does not r6viv6 ing the law was that if any statute was repealed statutes by one of a later date, and the later statute was repealed. (a) Dwiirris, 530. Digitized by Microsoft® 310 THE REPEAL OF STATUTES. subsequently repealed, the first statute at once revived without any formal words for that pur- pose (6). The fifth section of the 13 & 14 Vict. c. 21, however, enacts that " where any Act repeal- ing in whole or in part any former Act is itself repealed, such last repeal shall not revive the Act or provisions before repealed, unless words be added reviving such Acts or provisions." Repealed The 6th sectiou of the same Act provides that mains in " whcrover any Act shall be made repealing in newVo- whole 01 in part any former Act, and substituting takeeffeot some provisiou or provisions instead of the pro- vision or provisions repealed, such provision or provisions so repealed shaU remain in force until the substituted provision or provisions shall come into operation." Repeal by A repeal by implication is effected when the tion. provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier enactment that the two cannot stand together. In that case the earher enactment must give way to the later, according to the maxim, " leges pos- terior es priores contrarias abrogant " (c). " If two inconsistent Acts," says Lord Langdale, M.K, "be passed at different times, the last must be obeyed, and if obedience cannot be observed with- out derogating from the first, it is the first which must, give way. Every Act of Parliament must be considered with reference to the state of the law subsisting when it came into operation, and when it is to be applied ; it cannot otherwise be (6) 1 Blaokstone, 90. (c) 2 Inst. 685. Digitized by Microsoft® THE REPEAL OE STATUTES. 311 rationally construed. Every Act is made either for the purpose of making a change in the law, or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enact- ment " {d). Many instances may be given for the purpose of what is . JO i 1 inconsis- showmg how statutes or parts of statutes are tenoy be- repealed by implication. It is laid down in an statutes. early case that the 33 Hen. VIII. c. 23, which enacted that persons examined before the King's Council might be tried for treason in any county where the King pleased, was repealed by 1 & 2 Phil. & Mary, c. 10, providing that all trials for treason should be had according to the course of the Common Law, and not otherwise (e). The Act 13 Geo. II. c. 28, exempted any harpooner in the Greenland fishery trade from impressment. It was held that this Act was repealed by 26 Geo. III. c. 41, which conferred the same exemption on any such harpooner whose name was entered in a particular list (/). So, too, the 17 Geo. II. c. 38, which gave an appeal to the next sessions, repealed the sixth section of the 43 Eliz. c. 2, which gave an appeal generally {g). An Act allowing all persons access to the books of a turnpike trust was repealed by another Act, which gave the power of inspecting such books to trustees or creditors of tolls (A). An {&) Bean of Ely v. Bliis, 5 Beav. at p. 582. (e) FosUr's Case, 11 Eep. at p. 63 a. (/) Ex parte C'arruthers, 9 East, 44. (g) B. V. Worcestershire Justices, 5 M. & S. 457. Qi) R. y. Trustees of Nmthleach and Witney Roach, 5 B. & Ad. 978. Digitized by Microsoft® 312 THE REPEAL OF STATUTES. Act giving a person sued for anything done under its authority treble costs upon nonsuit, discon- tinuance or judgment in his favour, was held to be repealed by another Act which required notice of action, and gave costs to a successful defendant (^). In one case an enactment to the effect that no action should be commenced after six months was held to have been repealed by a subsequent Act, providing that none should be commenced after three months (^) ; but elsewhere it was decided that the provisions of an Act giving justices a month's notice of action, were not inconsistent with those of another Act which gave justices and others twenty-one days' notice (/). The 9 Geo. IV. c. 61, enacted that where an appeal against the decision of a justice of the peace was dismissed, the Court might order the appellant to pay costs to the justice against whom the appeal was brought, and might commit the appellant for non- payment. It was held that this enactment was repealed by 11 & 12 Vict. c. 43, which made costs in cases of appeals against justices payable to the clerk of the peace, and the order for payment enforceable by distress and committal for three months in default of distress (m) . Another section of the 9 Geo. IV. c. 61, required licences to victuallers to follow a form given in the schedule to the Act, and by that form the houses kept by victuallers were not to be open during the hours (i) Snelgrove v. Smart, 12 M. & W. 135. (Ic) Burns v. Carter, 5 Bing. 429. (I) Rix V. Borton, 12 A. & E. 470. {m) JR. V. Rdlkr, 17 Q. B. 229. Digitized by Microsoft® THE REPEAL OF STATUTES. 313 of Divine service on Sundays. The 18 & 19 Vict, c. 118, prohibited the sale of beer, vi^ine, or spirits between three and five on Sunday afternoons. It was held that this repealed the provisions in the licence, and that a victualler was not liable to a penalty for selling liquors between half-past two and three on a Sunday afternoon, although that time might faU within the actual hours of Divine service (ji). A provision in a private Act that the penalty imposed on a Gas Company for fouling a stream might be sued for by a common informer, was repealed by section 21 of the Gasworks Clauses Act, 1847, lO&ll Vict. c. 15, which enacted that such penalties should be sued for by the person injured (o). The 139th section of the Bankruptcy Act, 1849 (12 & 13 Vict, c, 106), providing that the assignees of a bankrupt's estate should be chosen by such of the bankrupt's creditors as had proved debts to the amount of £10 and upwards, was held to be repealed by the 116th section of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), which assigned the choice of an assignee to the majority in value of the creditors who had proved their debts ^p). A Gas Company's Act provided that the gas supplied should be equal to twelve wax candles, and that the company should not charge more than 4s. per 1000 cubic feet. Subsequently the Metro- (n) R. V. JFhitelcij, 3 H. & N. 143. (o) Parry v. Crot/don Gas Co., 11 C. B. N. S. 579 ; 15 C. B. N. S. 568. (p) Ej- park Moss, L. E. 3 Ch. 29. Digitized by Microsoft® yi4 THE REPEAL OF STATUTES. polis Gas Act, 1860 (23 & 24 Vict. c. 125), required the quality of the gas to be raised to twelve sperm candles, and allowed gas companies to charge as much as 5s. &d. per 1000 cubic feet if they elected to adopt the provisions of the Act. It was held that the earlier Act was repealed by the later, and that, in spite of the express prohibition in the earlier Act, a company electing to adopt the MetropoHs Gas Act, 1860, might charge more than 4s. per 1000 cubic feet {q). The City Sewers Act, 1848, gave the Commis- sioners of Sewers power to name and number streets. The Metropolis Local Management Act, 1855 (18 & 19 Vict. c. 120), gave the same power to the Metropolitan Board of Works. It was held that the first Act was repealed by the second (r). " Where two statutes," said Erie, C.J. (s), " give authority to two public bodies to exercise powers which cannot consistently with the object of the Legislature coexist, the earlier must necessarily be repealed by the later statute." " The same objects are dealt with in both Acts of Parliament," said Willes, J. (f). " The powers conferred by the two are substantially, if not strictly, the same. So soon as you find the Legislature is dealing with the same subject-matter in both Acts, so far as the later statute derogates from and is inconsistent with the earlier one, you are under the necessity of saying that the Legislature did intend in the later (5) Gnat Central Gas Consumer's Co. v. Clarke, 11 C. B. N. S. 814 ; 13 C. B. N. S. 838. (r) Daw V. Metropolitan Board of Works, 12 C. B. N. S. 161. (s) At p. 174. (0 At p. 179. Digitized by Microsoft® THE REPEAL OF STATUTES. 315 statute to deal with the very case to which the former statute applied." A repeal by implication has been effected even of statute where two inconsistent enactments have been passed passed in ^■1 • T , I p , 1 the same m the same session, or where two parts oi the same session. Act have proved repugnant to each other. An Act which received the royal assent on the 1st of June, 1829, provided that the roads in a parish were to be repaired by certain commissioners. Another Act which received the royal assent on the 19th of June, 1829, enacted that the same roads should be kept in repair by the parishes in which they were situated. Both the Acts were to come into opera- tion on the Istof January, 1830. It was held that the one which last received the royal assent must prevail, and must, so far as the two Acts were inconsistent, be a repeal of the other (((). So, too, section 42 of the 3 & 4 Will. IV. c. 27; enacted that no arrears of rent should be recovered by any distress, action, or suit, " but within six years next after " they should have become due. It was held that, if this section referred to rent due on an indenture of lease, it was repealed by the third section of 3 & 4 Will. IV. c. 42, which fixed twenty years as the limitation for actions of debt for rent due under an indenture of demise (cc). In the United States it was held that an Act wliich was approved on the 9th of December, 1837, and which provided for a plea in abatement if all co-contrac- tors were not joined as defendants, was repealed by another Act which was approved on the 18th of (m) U. v. Middlesex Justices, 2 B. & Ad. 818. {x) Paget v. Foley, 2 Bing. N. C. 679. Digitized by Microsoft® another. 31G THE REPEAL OF STATUTES. December, 1837, and which allowed a plaintiff to bring an action against as many co-contractors as he thought proper (y). Where, however, one Act provided that deeds should be registered in the probate registry for the county or city where the property was situated, and another Act, passed the same day, provided that deeds might be registered in the county, it was held that the two Acts could stand together, and that deeds relating to lands in a city might be registered in a county registry {z). Of one An instance of the repeal of one section in an Act Act by of ParHament by a subsequent section in the same statute is found in a case decided upon the words of the Friendly Societies Act, 1875 (38 & 39 Vict. c. 60). Section 22 of this Act provided that all disputes between a society and its members should be decided in the manner directed by the rules of the society. Section 30 enacted as follows : " The provisions of the present section apply only to friendly societies and except as after mentioned industrial assurance companies receiving contributions by means of collectors at a greater distance than ten miles from the registered office of the society." One of the provisions of section 30 was that disputes between societies and their members should be settled by a County Court, or Court of summary jurisdiction, notwithstanding any provisions to the contrary in the rules of such societies. The question arose whether section 30 of the Act repealed section 22 as to all friendly societies, (y) Johnson v. Bi/rd, Hempstead, 434. (z) Beals v. Hale, 4 Howard, 37. Digitized by Microsoft® THE REPEAL OF STATUTES. :!17 or extended only to friendly societies receiving contributions by means of collectors. It was held by the Queen's Bench Division that the provisions of section 30 applied to all friendly societies, and was to that extent a repeal of the twenty-second section (a). > A repeal by implication of a statute by another passed in the same session, or of a section in an Act of Parliament by a subsequent section in the same Act, will only be presumed in an extreme case. " How can we say," remarked Jervis, C. J., in a case where two succeeding sections were inconsistent with each other, " that the one provision is repealed by the other when both received the royal assent at the same moment ? Seeing here are two sections in the same Act of Parliament immediately follow- ing one another, which, though apparently conflict- ing, received the royal assent at the same moment, we are bound if it be possible to give effect to both" (6) . Again, where the question arose whether or no the 2 & 3 Will. IV. c. 100, which gave a Hmitation of sixty years in the case of tithes, was repealed by the enactment in 3 & 4 Will. IV. c. 27, that no action should be brought after twenty years to recover any land, a term which by the inter- pretation clause extended to tithes, Lord St. Leonards, L.C., observed: "It would require a very strong and clear case to enable the Court to say (a) iJe Kolt, L. R. 4 Q. B. D. 29. Subsequently 42 Vict. o. 9 was passed to declare that section 30 of the Friendly Societies Act, 18'75, was limited to friendly societies receiving contributions by means of collectors at a greater distance than ten miles from their registered office. (6) Gasirique v. Page, 13 C. B. at pp. 461, 464. Digitized by Microsoft® 318 THE REPEAL OF STATUTES. that a statute passed so recently after a former one wliich does not profess to repeal a leading enact- ment in that former statute, should by implication have that effect " (c). Not to be Even where a longer interval than a single session presumed without has elapsed between the passage of two statutes ' which appear to be inconsistent, the greatest care will be taken, and their provisions will be most strictly scrutinised, before the Court comes to the conclusion that the earliest of the two is repealed by implication (d). The Legislature is presumed to know of the existence of the earher statute, and if a repeal had been intended it might have been Where it the subiect of express enactment. Unless, there- will not be . i • i presumed. loro, two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be imphed. Thus in the case already cited with regard to the limitation of actions brought for tithes, after Lord Langdale, M.R., had held that the Act which gave a sixty years' limitation was repealed by the Act fixing twenty years (e), the Court of Exchequer (/) and Lord St. Leonards, L.C. {g), both decided that the two Acts could stand together, as one related to tithes as a chattel, " the fruit of the estate in tithes," while the other related to the estate itself Similar decisions were pronounced upon some of the statutes intended to discourage frivolous liti- (c) Bean of Ely v. Bliss, 2 De G., M. & G. at p. 470. (d) Esmtt V. Mastin, 4 Moo. P. C. at p. 130, per Lord Brougham ; Chorlton v. Tonge, L. E. 7 C. P. at p. 183, per Keating, J. (e) Dean of Ely v. Bliss, 5 Beav. 574. (/) Dean of Ely v. Gash, 15 M. & W. 617. (V) Dean of Ely v. Bliss, 2 De G., M. & G. 459. Digitized by Microsoft® THE REPEAL OF STATUTES. 319 gation. The 21 Jac. I. c. 16, s. 6, provided that in actions for slander if the verdict was less than forty slaillings the plaintiff should not recover more costs than damages. It v?as held that this section was not repealed by 3 & 4 Vict. c. 24, s. 2, which did not allow the plaintiff costs in an action of trespass where the verdict was under forty shillings except on a certificate that the action was brought to try a right (/*). Nor was this provision of the 3 & 4 Vict. c. 24, repealed by the County Courts Act, 1850 (13 & 14 Vict, c 61, ss. 11 & 12), which deprived a plaintiff of costs unless he recovered £5, or procured a certificate to the effect that there was sufficient reason for suing in a superior Court {i). The 3 & 4 Vict. c. 85, s. 6, requires partitions between chimneys and flues to be of a certain thickness. It was held that this section was not repealed by a Local Act, which provided that circular chimneys should be built with earthen- ware pipes ik). The effect of a repeal by implication is limited Limited to -'-_'' ■■• _ part which to that part of an earlier statute which is repug- is repug- nant to or inconsistent with a later statute, and does not extend to the earlier statute generally, or even to such parts as may be in juxtaposition with the part repealed. It had been suggested by Lord Abinger, C.B. {l), that if the 55 Geo. III. c. 137, s. 6, imposing a penalty of £100 on any Qi) Evans v. Bees, 9 C. B. N. S. 391 ; Marshall v. Martin, L. K. 5 Q. B. 239. (i) Powle V. Gaiidy, 7 C. B. N. S. 556. \h) Hill V. Hall, L. E. 1 Ex. D. 411. (l) Henderson v. Sherborne, 2 M. & W, 236. Digitized by Microsoft® 320 THE REPEAL OF STATUTES. parish officer who supplied for his own profit any goods for the support of the poor, referred to the case of a parish ofiicer deriving a profit from goods suppHed to an individual pauper, that enactment was repealed by 4 & 5 Will. IV. c. 76, s. 1^ , which imposed a penalty of £5 for any such dealings with an individual pauper. A later case, however, de- cided that if there was such a repeal, it was not a repeal of the enactment generally, but only of so much of the enactment as contemplated a supply of goods to an individual pauper (m). Modifica- Inconsistency between two statutes is sometimes earlier SO treated that a repeal by implication is avoided, substi- and that the later statute is regarded as modifying repeal by ^^ earlier statute, or taking certain things out of t^n^'"''' ^^^ operation. Thus it was enacted by 29 Eliz. c. 4, s. 1, that it should not be lawful for any sheriff to take more than the poundage given by that Act for serving or executing any extent or execution, on pain of forfeiting treble damages to the party grieved. , The Act 7 Will. IV. & 1 Vict. c. 55, s. 2, enacted that it should be lawful for sheriffs to take such fees as should be allowed under the authority of the judges, and made a sheriff who exacted more than those fees punishable for a con- tempt. It was held that the effect of the later Act was to exempt the taking of the fees allowed by the judges from the operation of the penal clause in the earlier statute, but not to repeal the earlier statute (n). Again, Lord Campbell's Act, (m) Robinson v. Emerson, 4 H. & C. 352. («.) Pilhington v. Cooke, 16 M. & W. 615; TVrightup v. Ch-eenacre, 10 Q. B. 1. Digitized by IVHcrosoft® THE REPEAL OF STATUTES. ;^21 9 & 10 Vict. c. 93, imposed an unlimited liability on persons who caused death by their negligence. The Merchant Shipping Act, 1854 (17 & 18 Vict, c. 104, s. 504), limited the liability of shipowners for loss of life resulting from improper navigation. This section was repealed and a new limit assigned by the Merchant Shipping Act, 1862 (25 & 26 Vict. c. 63). It was contended that Lord Camp- bell's Act was repealed as far as shipowners were concerned by the Merchant Shipping Act, 1854, and that when this was repealed in its turn, as Lord Campbell's Act was not revived, no Act existed which imposed any liability on shipowners. The Court, however, held that Lord Campbell's Act was not repealed by the Merchant Shipping Act, 1854, but was merely modified, and no revival of it was needed to preserve the liability of ship- owners (o). The difference between a repeal by implication and the modification of an earlier statute is shown by some cases which were decided upon the County Courts Act, 1850 (13 & 14 Vict. c. 61). The Statute of Gloucester, 6 Edw. I. c. 1, gave a plain- tiff a right to his costs in all cases in which he recovered damages. By the 11th section of the County Courts Act, 1850, it was provided that if a plaintiff recovered less than a specified amount he should have judgment for that sum only and no costs, unless in certain cases a certificate was granted by the judge at the trial, or an order made by the Court or a judge. A question arose whether (o) Glaholm V. Darh':r, L. R. 1 Oh. 22:;. Y Digitized by Microsoft® 322 THE REPEAL OF STATUTES. this enactment repealed the Statute of Gloucester with regard to the cases in which plaintiflFs were deprived of costs, or merely took those cases out of its operation. It was decided that the Statute of Gloucester was repealed so far as regarded the cases in which a plaintiff was deprived of his costs absolutely, but that so far as regarded the cases in which a plaintiff was entitled to his costs on ob- taining a certificate or order, the County Courts Act, 1850, merely imposed a condition. Therefore upon the repeal of the County Courts Act, 1850, s. 11, the Statute of Gloucester did not revive as to the cases in which a plaintiff was deprived of his costs absolutely, but in the other class of cases the condition imposed was taken away by the re- peal of the later enactment, and the provisions of the Statute of Gloucester came again into opera- tion (jp). Repeal by The difference between repeal and modification a change i i -n i i i e of penalty, may aiso be illustrated by the treatment of statutes by which penalties are inflicted. Where the punishment prescribed in an earlier Act is substantially altered by a succeeding Act, the earlier statute is repealed ; but if the second Act merely adds a cumulative penalty, the first Act remains in full vigour. Thus the Black Act (9 Geo. I. c. 22) declared that any person killing or destroying any red or fallow deer should be guilty of felony, and suffer death without benefit of clergy. It was held that this Act was repealed by the 16 (p) Moxmt V. Taylor, L. E. 3 C. P. 645 ; Levi v. Sanderson, L. E. 4 Q. B. 330 ; Mirfin v. Attwood, L. E. 4 Q. B. 333 ; see also Butcher V. HenderKon, L. E. 3 Q. B. 335. Digitized by Microsoft® THE REPEAL OF STATUTES. 323 Geo. III. c. 30, whicli imposed a penalty of £20 on any one killing or destroying red or fallow deer {q). Again the 5 Geo. I. c. 27, which pvmished any person convicted of enticing artificers into foreign service by a fine of £100 and three months' im- prisonment, was repealed by 23 Geo. II. c. 13, which visited the same offence with a fine of £500 and twelve months' imprisonment (7^). By the 19 Geo. II. c. 22, a penalty of not more than £5 and not less than 50?., to be enforced by distress, was imposed on any person throwing ballast into a navigable river. The 54 Geo. III. c. 159, after reciting in a preamble that it was expedient to extend the 19 Geo. II. c. 22, proceeded to visit the same offence with a penalty of £100, to be enforced by imprisonment, but subject to a right of appeal. It was held that, in spite of the recital in the pre- amble, the earlier Act was repealed by the later (s). Following this precedent, the Court held, in a later case, that an alteration in the description of an offence was analogous to an alteration of the punish- ment. By the 35 & 36 Vict. c. 78, a penalty was imposed on any person who exposed wild birds for sale between certain dates, unless he could prove that such birds were received from some one resid- ing out of the United Kingdom. The 39 & 40 Vict. c. 29 recited that the protection given by the -^ earher Act was insufficient, and imposed a. penalty on persons having in their possession between cer- tain other dates wild fowl recently killed, wounded (g) R. V. Davis, 1 Leach, C. C. 271. (r) E. V. Gator, 4 Burr. 2026. (s) Michell V. Broion, 1 E. & E. 267. Y -Z Digitized by Microsoft® 324 THE REPEAL OF STATUTES. or taken, without in any way referring to the receipt of such birds from any one out of the United Kingdom. It was decided that the second Act virtually repealed the first, and that proof of the receipt of birds from abroad afforded no answer to proceedings under the second Act (t\ The Courts in Ireland and the United States have also regarded a change of penalty as effecting the repeal of an earlier statute. Thus the 7 & 8 Geo. IV. c. 52, required that any building used for keeping malt should be entered at an Excise Office under a penalty of £100, together with the for- feiture of all malt found in any such building. It was held that this provision was repealed by 4 & 5 Will. IV. c. 51, which sub.'^tittited a penalty of £200, but did not authorise the forfeiture of the malt {it). An Act which provided that no un- licensed person should sell wine or spirits in a less quantity than twenty-eight gallons, on pain of forfeiting twenty dollars, was held to be repealed by another Act substituting fifteen gallons as the minimum quantity, and making the penalty not more than twenty and not less than ten dollars {x). Not by Where, however, the penalty inflicted by a later cumulative , , , . penalties. Act is not intended to be substituted for that which an earlier Act has imposed, the earlier Act is not repealed by the later. " It is a general rule," says Lord Mansfield, C.J., "that subsequent statutes which add accumulative penalties do not repeal (i) WhUdhcad v. Smitherx, L. E. 2 C. P. D. 5.53. (k) Alt. -Gen. v. Dnmx, 1 Ir. L. R Ex. 357. (j) Commonwcallh v. Kimhall, 21 Pickering, 373. Digitized by Microsoft® THE REPEAL OF STATUTES. 325 former statutes " (?/). In the case from wHch this passage is taken, it was decided that the 28 Edw. I. c. 20, which prohibited the making of silver plate under the standard alloy upon pain of imprison- ment, was not repealed by later statutes inflicting penalties of double the value of the plate, or of its forfeitiure, or of a specified sum of money. So it was decided that the 20 Geo. II. c. 19, s. 4, em- powering justices to imprison an apprentice for ill behavioiir in his service, was not repealed by 6 Geo. III. c. 25, which empowered them to compel him to serve out his apprenticeship or make satisfaction, on pain of committal (z). Again, it was provided by the 3rd section of 17 Geo. II. c. 3, that if any churchwarden or overseer refused to give copies of any poor rate to any inhabitant he should be liable to pay £20, recoverable by action. It was held that this was not repealed by 6 & 7 WiU. IV. c. 96, s. 5, which enacted that, if any person having the custody of the poor rate refused to allow any rate- payer to take copies of the poor rate, he should be liable to pay £5, recoverable summarily (a). So, too, it was decided that 23 EUz. c. 1, imposing a penalty of £20 per month upon every person not going to church, did not repeal the earHer Act of the same reign, which gave a forfeiture of twelve pence for every Sunday and hohday on which any one absented himself (6). "A subsequent statute," it is said, " that gives a greater punishment does (?/) R. V. Jaohsm, 1 Cowp. 297. (a) Oray v. Coohson, 16 East, 13. (a) Tennimt v. Cranston, 8 Q. B. 707. (fo) Foster's Gase, 11 Kep. 63 b. Digitized by Microsoft® 326 THE REPEAL OF STATUTES. not take away the power given by a precedent statute" (c). The language in an American case with regard to revenue laws may well have a more extended application, and may refer equally to all statutes which impose new or additional penalties. " In the interpretation of all laws for the collection of revenue, whose provisions are often very compli- cated and numerous to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws, sedu- lously introduced to meet the case of a palpable fraud, should be deemed repealed merely because, in subsequent laws, other powers and authorities are given to the Custom House officers, and other modes of proceeding are allowed to be had by them before the goods have passed from their custody, in order to ascertain whether there has been any fraud attempted upon the Government. The more natural, if not the necessary, inference in aU such cases is, that the Legislature intend the new laws to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may equally be within the reach of each " {d). Repeal not Another question which arises on the subject of effected by repeal by implication is, whether or no such a repeal torSr "^ can be effected by affirmative words. The general rule, as stated by Lord Coke, is, " a later statute in the affirmative shall not take away a former Act, and go potius, if the former be particular and (c) R V. Fugh, 6 Mod. 141. {(l) mod V. U. S., 16 Peters, at p. 363. Digitized by Microsoft® THE REPEAL OF STATUTES. 327 the latter be general " (e). It is also thus stated by Lord Hardwicke : " The rule touching the repeal of laws is leges poster lores priores contrarias abro- gant, but subsequent Acts in the affirmative, giving new penalties and instituting new methods of pro- ceeding, do not repeal former penalties and methods of proceeding ordained by preceding Acts of Par- liament without negative words" (/). It was there- fore held, in that case, that the 7 & 8 Will. III. c. 35, which inflicted a fine upon all persons mar- ried without banns or hcence, did not repeal the Act of Uniformity (l Eliz. c. 2), rendering persons so married punishable by the censures of the Church. So, too, an Act directing that two over- seers of the poor should be appointed did not repeal the 43 Eliz. c. 2, which allowed a greater number {g). Nor does the 99th section of 1 & 2 Vict. c. 106, providing that, where a benefice is under sequestration, the bishop may appoint a curate, and assign him a stipend to be paid by the sequestrator of the benefice out of the profits thereof, repeal the 10th section of 28 Hen. VIII. c. 11, which enacts that if the fruits of the vaca- tion of spiritual promotions be not sufficient to pay the curate's stipend, it shall be borne and paid by the next incumbent iji). The seventh section of 3 & 4 Will. IV. c. 98, enacted that no bill of exchange not having more than three months to run should (e) Gregory's Case, 6 Rep. 19 b. (/) Middletm v. Crofts, 2 Atkyns, at p. 675. In the report the words which are italicised in the text are, obviously by a slip, printed "methods and penalties ol' proceeding." (g) B. V. FviHcg, 2 B. & C. 322. {h) Dakins v. Seaman, 9 M. & W. 777. Digitized by Microsoft® ;]2S THE REPEAL OF STATUTES. be void by reason of any statute or law for the prevention of usury. The first section of 2 & 3 Vict. c. 37, contained identical words vdth regard to bills of exchange not having more than twelve months to run. It was held that the second of these Acts did not repeal the first, for, though the language used in both Acts was negative, the Acts inter se were affirmative (i). A somewhat analogous decision was pronounced as to the effect of the doc- trine of apparent possession which was established by the Bills of Sale Act, 1854(17&18 Vict. c. 36), upon the order and disposition clause of the Bank- ruptcy Act, 1849 (12 & 13 Vict. c. 106, s. 125). By the Bills of Sale Act, instruments of a certain class, which were not registered in accordance with the provisions of the Act, were rendered invalid as against assignees in bankruptcy, if the goods com- prised in such instrument were in the apparent possession of the maker. But even if such instru- ments were registered, it was held that the goods would pass to the assignees under the order and disposition clause of the Bankruptcy Act, as it was not the object of the Bills of Sale Act to narrow the doctrine of reputed ownership, or to take any cases out of the operation of the law which already existed for the protection of creditors (k). Unless The rule as to affirmative words which has been those , words quoted is subject to one exception. Where an a new law. affirmative statute introduces a new law or gives a (i) Ex parte Warrington, 3 De G., M. & G. 159, 171, following Clach V. Sainsbury, 11 C. B. 711, and JVixon v. Phillips, 7 Ex. 188. {k) Stan.tfeld v. t'ubiff, 2 De G. & Jones, 222 ; Badger v. Shaw, 2 E. & E. 472. Digitized by Microsoft® THE REPEAL OF STATUTES. 329 new right, and it appears to be the intention of the Legislature that the new law alone shall be followed, or that a right which previovisly existed should be merged in the one newly created, the later statute will act as a repeal of the earlier, "as implying a negative" {I). Thus the 1 Will. & Mary, c. 21, which provided that the ciistos rotulorum should appoint a clerk of the peace to act " for so long a time only as he shall well demean himself in his said office," was a repeal pro tanto of 37 Hen. VIII. c. 1, giving the appointment of the clerk of the peace to the ciistos rotulorum, but limiting the tenure of the office of clerk of the peace to the time that the person making the appointment should continue custos rotulorum (m). For the same reason it is said by Lord Coke, that the Act 33 Hen. VIII. c. 23, enacting that persons examined before the King's Coimcil might be tried for treason in any county where the King should please, would have been repealed by 1 & 2 Phil. & Mary, c. 1 0, which provided that aU trials for treason should be had according to the course of the Common Law and not otherwise, even if the later Act had not contained the negative words "and not otherwise " {n). Section 57 of 4 & 5 Will. IV. c. 76, enacted that every man who should marry a woman having legitimate or illegitimate children should be liable to maintain such children, and should be chargeable with aU relief granted to (I) Harcourt v. Fox, 1 Shower, at p. 520, per Eyres, J. ; 0' Flaherty V. McDowell, 6 H. L. 0. at p. 157, ^er Lord Cranworth, L.C. {vi) Harcourt v. Fox, 1 Shower, 506. («) Foster's Case, 1 1 Rep. at p. 63 a. Digitized by Microsoft® 330 THE REPEAL OF STATUTES. them. It was held that these words, though affirmative, operated, in the cases to which the Act referred, as a repeal of so much of 18 Eliz. c. 3, s. 2, and 49 Geo. III. c. 68, as rendered the putative father of a bastard child liable for its maintenance (o). Section 6 of 8 & 9 Will. III. c. 30, provided that appeals against orders of removal should be determined at the Quarter Sessions of the Peace for the county, division, or riding containing the parish from which the removal was ordered, and not elsewhere. 5 & 6 Will. IV. c. 76, s. 105, gave jurisdiction in boroughs to the recorder over all matters cognisable by any Court of Quarter Sessions of the Peace for counties. It was at first suggested that this section gave a recorder concurrent jurisdiction (p), but in a sub- sequent case the Court held that the affirmative words of the later section repealed the earher pro- vision, and that a recorder had exclusive jurisdic- tion over appeals against orders of removal from any parish within his borough (2). Special One important rule which governs repeals by Acts not . ,. . , • T 1 mi • • 1 repealed implication has yet to be considered. I his is that ygener . gpg^jg^j Acts are uot repealed by general Acts, "unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two Acts stand- ing together" (7'). It was said by Sir Orlando Bridgman that " the law will not allow the exposi- (0) Laiig V. B-picw, 1 M. & W. 129. ij!) R. V. St. Edmund's, Scdisbury, 2 Q. B. 72. (j) R. V. Suffolk Justices, 2 Q. B. 85. (r) ThoriK V. Adams, L. R. 6 C. P. at p. 135, iier Bovill, C.J. Digitized by Microsoft® THE REPEAL OF STATUTES. 331 tion to revoke or alter by construction of general words any particular statute where the words may have their proper operation without it" (s). In our own day it has been laid down by Wood, V.-C, that "in passing a special Act the Legislature had their attention directed to the special case which the Act was meant to meet, and considered and provided for all the circumstances of that special case ; and having so done they are not to be con- sidered by a general enactment passed subsequently, and making no mention of any such intention, to have intended to derogate from that which by their own special Act they had thus carefully supervised and regulated " it). Elsewhere the same judge iises the following words : " Wherever the Legislature has, by such an Act, vested powers of a special character in a corporate body or any body of commissioners for the express purpose of carrying out a particular object which the Legis- lature has in view, no subsequent statute in merely general terms, giving powers which by their gene- rality apply to the special powers conferred by the former Act, will override the special powers thereby delegated to the particular body of commissioners or corporation. . . . The Legislature in passing a special Act has entirely in its consideration some special power which is to be delegated to the body applying for the Act on public grounds. . . . When a general Act is subsequently passed, it seems to be a necessary inference that the Legis- lature does not intend thereby to regulate all (s) Lyn V. Wfh Bridg. C. P. at p. 127. It) Fitagerald v. Ghampiieys, 2 J. & H. at pp. 54, 55 Digitized by Microsoft® times. 3:^2 THE REPEAL OF STATUTES. cases not specially brought before it ; but looking to the general advantage of the community with- out reference to particular cases, it gives large and general powers which in their generality might, but for this very wholesome rule of interpreting statutes, override the powers which upon con- sideration of the particular case the Legislature had before conferred by the special Act for the benefit of the public " {u). This rule The principles thus stated have been adopted in followed p ,^ ^■ , n • , in early some 01 the earliest cases as well as m those more I'ecently decided. Thus it was held that a statute passed in the 1 4th year of Edward the Third, and requiring all merchants who shipped goods to be exported over seas to import two marks of bullion for every sack of wool exported, was not repealed by other Acts providing that merchants should not be charged except for the ancient custom (x). So, too, it is said in an early Report, as illustrating the maxim generalia specialibtis non derogant, "an Act of Parhament ordains that A. B., who is tenant in tail, shall only make leases for life ; the statute of 32 Hen. VIII., which enables tenant in tail to make leases for three lives, does not repeal the said Act for the reason aforesaid " (y). Again, it is laid (m) London and Blackwcdl Bail. Co. v. Limehouse Board of Works, 3 K. & J. at pp. 127, 128. (x) Brooke's Abridgment, tit. Parliament, 52 ; Jenkins's Centuries, 3rd cent, case 41, p. 120, cited by Turner, L.J., in Trustees of Birken- head Docks V. Laird, 18 Jur. at p. 884 ; 23 L. J. Cli. at p. 459. The passage wMch contains this reference is omitted in the report of the same case in 4 De G. M. & G. 742, and it is said by "Wood, V.-C, in Fitzgerald v. Chamjpneys, 2 J. & H. at p. 53, that the omission is intentional. {^) Jenkins's 3rd Century, case 41, cited by Wood, V.-C, iu Fitn- gerald v. Ghampneys, 2 J. & H. at p. 54. Digitized by Microsoft® THE REPEAL OF STATUTES. 333 down by Lord Coke that the 5 EHz. c. 4, enacting that none should use a trade without being an apprentice, did not repeal the Act of the 4 & 5 Phil. & Mary, which provided that no weaver should use his trade without being an apprentice (z). Very sunilar to this was the decision that the 33 Geo. III. c. 5, rendering members of friendly societies irremoveable until they were actually chargeable, was not repealed by the 35 Geo. III. c. 101, which made all persons irremoveable until they were actually chargeable (a). The Joint Stock Companies Winding-up Act, Modem 1844 (7 & 8 Vict. c. Ill, s. 10), provided that ""*™'"- proof under a fiat against a company should not prejudice the right of a creditor to proceed against the shareholders. The Bankruptcy Act, 1849 (12 & 13 Vict. c. 106, s. 182), re-enacted without any change of language the 59 th section of 6 Geo. IV. c. 1 6, by which proof under a fiat was deemed an election not to proceed by action. It was held that by inserting in the Act of 1849 a section which simply re-enacted an earlier statute, the Legislature did not intend to repeal the express provisions of an intermediate Act (6). So, too, it was provided by the Merchant Shipping Act, 1854 (17 & 18 Vict. C..104, s. 388), that no owner of a ship should be answerable for damage caused by the fault of a pilot whose employment was compulsory. The Thames Conservancy Act, 1857, s. 96, rendered the owner of every vessel navigating (z) Gregory's Ccise, 6 Rep. 19 b. («) R. V. Idle, inhabitants, 2 B. & Aid. 149. (6) Morisse v. Ro/ial BriJiA Bank, 1 C. B. N. S. 07. Digitized by Microsoft® 334 THE REPEAL OF STATUTES. the Thames answerable for all damage done by such vessel, or any person employed in it, to the property of the conservators. It was held that the express provision as to compulsory pilotage was not repealed by these general words (c). Oases The rule now under consideration applies most special forcibly to cases in which a right, privilege, or arrgivCT^. exemption is conferred on some person or persons, class or body, by a special Act, and might be taken away by the general words of a subsequent Act, if they were construed literally. Thus the 7 Geo. III. c. 37, which provided for the completion of a bridge across the Thames, enacted that the ground and soil of the river inclosed and embanked for the purpose of making the bridge should vest in certain persons free from all taxes. It was held that this exemption was not destroyed by the Act which imposed the land tax in general terms upon all property [d], nor by an Act imposing rates for lighting and paving (e). On the same ground it was decided that the 6 & 7 Vict. c. 36, s. 1, which exempted from rates the land and houses belonging to societies instituted for the purposes of science, literature, or the fine arts exckisively, was not repealed by an Act empower- ing the cptuTicil of the borough of Liverpool to make rates on every person occupying any house or land, unless such house or land was used for religious or educational purposes (/). It is (c) Conservatms of the Thames v. Hall, L. R. 3 C. P. 415. (d) Williams v. Pritchard, 4 T. R. 2. (c) Eddington v. Bonnan, 4 T. R. 4. (/) Liverpool Lihrary v. Mayor of Liver-pool, 5 H. & N. 526. Digitized by Microsoft® THE REPEAL OF STATUTES. 335 difficult to reconcile with these cases an Irish decision to the effect that some local Acts for the county of the city of Cork, which exempted certain premises from grand jury assessments, were repealed by a public Act providing in general terms for the levy of grand jury assessments (gf). An Act for regulating Police Courts in the Metropohs (2 & 3 Vict. c. 71, s. 47) contained an express provision that all penalties made re- coverable summarily, and recovered before any metropolitan police magistrate, should be adjudged to be paid to the receiver of metropolitan police, unless they were payable to an informer or a party aggrieved. The 17 & 18 Vict. c. 38, passed for the suppression of gaming-houses, imposed certain penalties, and enacted that half of each penalty should be paid to the informer and half should go to the overseer of the parish. It was held that the general words of this Act did not repeal the special provision in the earlier Act, and that an exception must be implied in the later Act when- ever the penalties imposed by it were recovered before a metropohtan police magistrate. In that case the half which was not payable to the in- former must go to the receiver of metropolitan police, although if the penalty was recovered in any other place than the metropolis, or before two justices in the metropolis, that half would be paid to the overseer of the parish (A). A railway company was authorised by its special Act to build a station on a certain piece of land. ig) Jones v. Hayes, 1 Ir. L. R. Q. B. 341. {h) Wray v. Ellis, 1 E. & E. 276. Digitized by Microsoft® 330 THE REPEAL OF STATUTES. The Metropolis Management Act, 1855 (18 & 19 Vict. c. 120), which was passed subsequently, forbade the erection of any building beyond the regular street line without the consent of the Metropolitan Board of Works. It was held that the company might build a station on the piece of land men- tioned in the special Act although it would be beyond the regular line of the street (A;). So, too, it was held that a local Act passed for the purpose of regulating the ecclesiastical arrangements of the parish of St. Pancras was not repealed by the Church Building Acts, and therefore an order made under one of those Acts assigning a district chapelry to a chapel in the parish was ultra vires (l). Again, by a private Act passed in the reign of Queen Anne for the improvement of the deanery of Lichfield, it was enacted that the rectory of Tatenhill should be annexed to the deanery for ever. Section 50 of 3 & 4 Vict. c. 113, provided that " all the estate and interest which the holder of any deanery . . . and his successors have and would have in any . . . endowments whatsoever annexed or belonging to . . . such deanery . . . shall accrue to and be vested absolutely in the ecclesiastical commissioners for England." It was held that these general words did not repeal the particular provision of the Act of Anne (m). A private Act of Parliament provided that Serjeant's Inn should pay the parish of St. Dunstan {k) London and Blackwall Bail. Co. v. LimeJiouse District Board of Worlcs, 3 K. & J. 123. (J) Fitzgerald v. Champneys, 2 J. & H. 31. {m) B. V. Ohaviimeys, L. R. 6 C. P. 384. Digitized by Microsoft® THE REPEAL OF STATUTES. 337 £80 a year in full for all poor rates due or claimed from time to time. By the 7tli section of the Kepresentation of the People Act, 1867(30&31 Vict. c. 102), it was enacted that owners should not in future be rated instead of occupiers. The Court decided that these general words left the rating of Serjeant's Inn unaffected (71). " If a bill had been brought into Parliament to repeal the local Act," said Willes, J., (0) " it never would have been allowed to pass into a law without notice to the parties whose interests were to be affected by it, . . . whereas a general provision is discussed with reference to general policy, and without any reference to private rights, with which there is no intention on the part of the Legislature to interfere." A private Act of the 2 & 3 Phil. & Mary limited lands to Edward Neville and others in tail male with limitations over and an ultimate limi- tation to the Crown. By the same Act it was provided that " no feoffment, discontinuance, fine or recovery ... or any other act or acts . . . made, done or suffered " by Edward Neville or the other persons named or their heirs, " should bind or con- clude, or put from entry . . . any of the heirs in tail." It was held by Channell and Cleasby, BB., BramweU, B. dissenting, that this Act was not re- pealed by the Statute of Limitations, 3 & 4 Will. IV. c. 27, and that the heir in tail male of Edward NeviUe could recover the lands from a person who had a possessory title of more than twenty years (p). («,) r/iorpe V. Aixhirm, L. E. 6 C. P. 125. (o) At p. 1.38. {f) Earl of Aherrjamnny v. Brme, L. E. 7 Ex. 145. Z Digitized by Microsoft® 33« THE REPEAL OF STATUTES. Special It has been decided in some cases that a special repealed Act is not to be Considered as repealed by a sub- qnenV' Sequent special Act witbout express words or ^4^f^ necessary implication. Thus an Act of Parliament authorised the lord of a manor to supply a town with water at his own cost, and for that purpose to break up the pavement in any of the streets. This Act was held not to be repealed by the Port- sea Paving Act, 1792, which vested the soil of the streets in trustees, and empowered them to take proceedings against persons breaking up the streets (g). The Waterworks Clauses Act, 1847 (10 & 11 Vict. c. 17), enacted that the supply of water should be constantly laid on at such a pres- sure as would make it reach the top story of the highest houses within the limits of the special Act, unless the special Act provided that the supply need not be laid on under such pressure. A local Act passed in 1855 provided that the water supplied to Wolverhampton need not be constantly laid on under pressure. In 1856, the company formed under the locul Act was amalgamated mth another company by an Act which incorporated the Waterworks Clauses Act, 1847. It was held that this incorporation did not have the effect of repealing the provision of the Act of 1855, or of imposing on the company the obligation of laying on water under constant pressure (r). Where '^ot many cases are to be found in which the special ^ •' Acts may provisions of general Acts have been considered so (2') Goldson V. Bmic, 15 East, 372. (r) Purnell v. Wolverhampton New Waterworks Go., 10 C. B. N. S 57U. Digitized by Microsoft® THE REPEAL OF STATUTES. 839 necessarily inconsistent with those of previous ^^ ■'^■ . 1 , ^ pealed by special Acts as to etiect a repeal by implication. g™erai Where, however, a local Act provided that prisoners from the borough of Colchester- should be maintained in the county gaol of Essex upon certain terms, and it was afterwards enacted, by 5 & 6 Vict. c. 98, that in every borough, having a separate Court of Quarter Sessions, and sending its prisoners to the county prison, the council should pay to the county certain expenses of repairs and improvements to the county prison, it was held that the special Act was repealed. It was mani- festly the intention of the Legislature to provide one uniform system for all gaols, and to put an end to all special usages prevailing in particular gaols and boroughs (s). So it was provided by section 6 of the 2] Jac. I. c. 16, that a plaintiff who recovered less than forty shillings damages in an action for slander should recover no more costs than damages. Order 55, appended to the Judicature Act, 1875, laid down the rule that where an action was tried before a jury the costs should follow the event unless the judge at the trial or the Court should otherwise order. The Common Pleas Division decided that this order repealed the Statute of James {t). The Court of Appeal took a different view, holding that Order 55 contained a general provision which left the special provision in the earlier Act unaffected (^i). But the House of Lords reversed the judgment of the Court ol' (s) Bramston v. Mayor of Colchester, 6 E. & B. 246. {t) Parsons v. Tinlinrj, L. R. 2 C. P. D. 119. (m) Garnet v. Bradley, L. R. 2 Ex. D. .349. z2 Digitized by Microsoft® 340 THE REPEAL OF STATUTES. Appeal, and declared that Order 55, wMcL. gave the Court a discretionary power to award or refuse costs, was necessarily inconsistent with an Act laying down a hard-and-fast rule that in certain cases a successful party should have no more costs than damages {x). Act ma^ A general Act may to a certain extent be repealed be re- by a spccial Act, accordiug to the principle stated iaraiobya by Lord Westbury (y), and cited with approval by Act ^ the Court of Common Pleas {z) : — " If the particular Act gives in itself a complete rule on the subject, the expression of that rule amounts to an excep- tion of the subject matter of the rule out of the general Act." Thus section 5 of 5 & 6 Yict. c. 97, enacted that actions for anything done in pursu- ance of local or personal Acts, should be brought within two years. A local Act, 8 & 9 Vict. c. 21, giving power to the justices of Lancashire to make certain rates, incorporated the pro^dsions of the County Rates Act, 55 Geo. III. c. 51, by which a limitation of three months was imposed. It was held that the incorporation of these provisions in the local Act was pro tanto a repeal of the general Act, and that an action for anything done in pursuance of 8 & 9 Vict. c. 21, must be brought within three months (a). So, too, a local turnpike Act, imposing specific tolls on carriages in propor- tion to the breadth of their wheels, was held to be {x) Garnet v. Bradley, L. R. 3 -A pp. Oas. 944. {y) Ex parte St. Sepulchre, Re IVestminster Bridge Act, 4 De G. J. & S. at p. 242; 33 L. J. Ch. at p. 376. {z) L. C. & D. Rail. Co. v. Wandsworth Board of Works, L. R. 8 C. R at p. 189. (a) Boden v. Smith, 18 L. J. C. P. 121. Digitized by Microsoft® THE REPEAL OF STATUTES. 341 a repeal pro tanto of the General Turnpike Act, 13 Geo. III. c. 84, s. 23, which rendered all car- riages with wheels less than six inches in breadth liable to half as much again as the tolls payable under any Acts of Parliament (6). Again, the General Turnpike Act, 3 Geo. IV. c. 126, enacted by its fourth section that all its provisions should extend to all future turnpike Acts, except as to things expressly referred to and varied by such Acts. Section 32 of the same Act provided that all im- plements of husbandry, in which by a later Act threshing-machines were included, were to be free from toll. A local Act of later date defined the word cart as including threshing-machines, and imposed a toll on every horse drawing a cart. It was held that under this local Act threshing- machines were liable to toll, inasmuch as the pro- visions of the general Act were expressly referred to and varied (c). " I think it is clear," said Willes, J. {d), "that not. only express words but any repugnancy would be sufficient to repeal the former Act." Having: now considered what are the circum- How a stances under which the repeal oi a statute will cannot be be imphed, we may add that the mere fact of an *" ^'^ *" ' Act of Parhament not having been put in force for a considerable length of time is not sufficient to effect its repeal. A statute cannot be repealed by non-user where the words are plain (e), but if an (6) Ridge v. Garlicl, 8 Taunt. 424. (c) AhUrt V. Pritchard, L. K. 1 C. P. 210. (d) At p. 214. (e) White v. Boot, 2 T. K. 274. Digitized by Microsoft® Huw a re peal may 342 THE REPEAL OF STATUTES. Act has lain idle for a great many years, and the question arises whether or no it has been repealed by implication, a long series of practice without any exception will go far to remove doubts or to explain any ambiguity (/). Nor is the repeal of an Act of Parliament effected by mere words of reference in the schedule to a later Act {(j) ; nor by a recital of an intention to repeal without any repealing clause or inconsistent provisions (/i) ; nor by affirmative words continuing until a certain time an Act which was itself perpetual (%). The repeal of a statute may be prevented by be pre- such an incorporation of its provisions in some vented. ■- '■ other statute, or by such a reference to or repeti- tion of its provisions, as amounts to a re-enactment. The 13 Geo. III. c. 78, empowered the Court which tried an indictment for the non-repair of a highway to award costs if the defence to such an indictment was frivolous. Another section of the same Act enabled a single justice acting on his own view to present a highway at Quarter Sessions for non-repair. By the 43 Geo. III. c. 59, all the provisions of that Act were extended to county bridges as fully as if the same were repeated and re-enacted. The 13 Geo. III. c. 78, was repealed by .5 & 6 WiU. IV. c. 50. After such repeal it was held that upon the trial of an indictment for the non-repair of a county bridge, the Court could (J) Leigh v. Kmt, 3 T. R. 362 ; Tlie India, Br. & Lush. 221 ; 33 L. J. Adni, 193. {g) Allen v. Flidri; 10 A. & E. 640. (/i,) Mahon;/ v. Wright, 10 Ir. C. L. R. Q. B. at p. 426, per Lefroy, C.J. (i) Prices nf Wiin; IIoli. 215. Digitized by Microsoft® THE REPEAL OF STATUTES. 343 award costs if the defence was frivolous (/t), and that a single justice might present a county bridge at Quarter Sessions for non-repair (?). So, too, the Wine and Beerhouse Act, 1869 (32 & 33 Vict. c. 27, s. 8), enacted that the provisions of 9 Geo. IV. c. 61, as to appeals to Quarter Sessions, should have eflFect with respect to the grant of certificates under that Act. The provisions of 9 Geo. IV. c. 61, as to appeal, were repealed by the Licensing Act, 1872 (35 & 36 Vict. c. 94). It was held, however, that they were kept alive by incorporation so far as regarded the grant of certificates under the Wine and Beerhouse Act, 1869 (m). Sometimes the repeal of an Act of Parliament is Repeal ., . I .1 T delayed by- delayed lor a time by a savmg clause in the repeal- saving ing Act, which excepts from repeal pending pro- ceedings, or anything duly done, or any right, hability, or penalty already incurred under the former statute. Thus, the 251st section of the Bankruptcy Act, 1849 (12 & 13 Vict. c. 106), which created certain offences on the part of bank- rupts, was repealed by the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), except as to pending pro- ceedings or any penalty incurred. It -w'as held that, where a person had committed an offence against the earlier section, and a warrant for his apprehension upon that charge had been issued before the section was repealed, a proceeding was pending and a penalty bad already been in- curred (;i). So the Public Health Act, 1875 (38 (ifc) B. V. Mrriunethshire, Inhabitants, 6 Q. B. 343. (l) R. V. Brecon, Inhabitants, 15 Q. B. 813. (m) I!. V. Smith, L. R. 8 Q. B. 146. (n) It. V. Smith, L. & C. 131. Digitized by Microsoft® Effect of repeal on 344 THE REPEAL OF STATUTES. & 39 Vict. c. 55), repealed some former statutes, with a saving as to " anything duly done" and " any right or liability incurred" under those statutes. It was held that a rate made under the powers of those Acts, but not complete until the day of their repeal, was kept alive by the first saving (o), and that the liability to obey an order made under the powers of those Acts before their repeal was kept alive by the second ( j?). The only question which remains to be discussed statutes is the efifect of the repeal of a statute. So far as them- ^ selves. statutes themselves are concerned, the effect of a repeal upon them has been thus stated by Lord Tenterden, C.J. : "It has been long established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed " {(j). In that case (r) a trader had committed an act of bank- ruptcy prior to the passing of 6 Geo. IV. c. 16, which repealed aU the former Acts on the subject. It was held that the statute in question must be considered as if it were the first that had ever been passed with reference to bankruptcy, and therefore a commission could not be supported where an act of bankruptcy occurred before the passing of the statute. The same principle has been followed in other cases. The first section of the 17 & 18 Vict, c. 25, provided that all actions against any indus- trial or provident society should be brought against (o) K V. West Riding, Justices, L. E. 1 Q. B. D. 220. (p) Barnes v. Eddleston, L. E. 1 Ex. D. 102. (g) Surtees v. Bllison, 9 B. & C. at p. 752. (r) 9 B. & C. 750. Digitized by Microsoft® THE REPEAL OF STATUTES. 345 the registered officer or trustees of tlie society. TMs Act was repealed by 25 & 26 Vict. c. 87, wticli provided tliat pending actions should be continued against the society itself. It was held that where no action was pending at the time when the repealing Act was passed, but a contract had been already made, the individual members of the society were liable upon it (s). So where a company existed which was illegal by virtue of 19 & 20 Vict. c. 47, s. 4, and that Act was repealed by 20 & 21 Vict, c. 14, s. 3, it was held that debts, contracted by the company between the time of the passing of those two Acts, might be recovered after the passing of the second Act. The first Act, it was said, must be considered, except as to transactions past and closed, as if it had never existed, but whilst the debts remained unpaid the transactions in question were not past and closed (t\ The rule that a repealed statute is to be con-^^e°^-^^ sidered as if it had never existed does not prevent may be . . , . . looked at. the Court from lookmg at a repealed Act in pan materid on a question of construction {ii), or at a repealed clause for the purpose of ascertaining the subject matter to which it referred. Nor does it extend so far as to cause the construction of one clause in an Act of ParUament to be altered by the repeal of another clause in the same statute. Thus where 52 Geo. III. c. 150, imposed a duty on " artificial mineral waters and all waters impreg- (s) Dean v. Mellard, 15 C. B. N. S. 19. {t) Grisewood and Smith's Case, 4 De G. & J. 544, 557. (w) Ex parte Copekmd, 2 De G. M. & G. 914, citing B. v. Loxdale, 1 Burr. 447. Digitized by Microsoft® 346 THE REPEAL OF STATUTES. Effect of repeal on powers given by statutes. nated . . . with carbonic acid gas," and, bj a general clause, on " all other . . . waters," it was held by the Court of Appeal, reversing the judg- ment of the majority of the judges of the Exchequer Division, that a water taxable under the first head did not, on the repeal of that provision, become taxable under the general clause (x). " No judge," said Kelly, C.B., the dissentient in the Court below (y), " ever laid down as law that, where a particular clause in an Act of Parhament is re- pealed, the ^\hole Act must be read as if that clause had never been enacted. All that can be said is that the clause is to be taken as if it never had been enacted." One part of an Act may in some cases be affected by the repeal of another. Thus, if a substantive enactment in a statute is expressly repealed, that which comes by way of proviso upon it is repealed by implication (z). In addition to its du'ect effect upon statutes themselves, a repeal has also a material influence upon the rights, powers, or exemptions conferred by statutes, or upon the punishments they may inflict. Where an act may be done upon the ful- filment of certain conditions contained in a statute, and the statute which prescribes those conditions is repealed, the act itself is no longer authorised. Thus a tenant-in-taU had power given him under an estate Act to alien the entailed estate on con- dition of his making the declaration, and taking (ce) Att.-Gen. v. Lamplough, L. R. 3 Ex. D. 214. (?_/) At p. 223. (z) Ilorsnail \. Bruce, L. E . 8 C. T. at p. 385, per Bovill, C.J. Digitized by Microsoft® THE REPEAL OF STATUTES. 347 the oaths, required by certain statutes. Afterwards the statutes requiring the declaration and oaths Avere repealed, and it was held that, by reason of this repeal, the power to alien could no longer be exercised (a). An existing exemption may be taken away by the repeal of a statute, or of a part of a statute. An Act imposed a duty upon deposits of money with any company engaged in the business of bank- ing, but contained a proviso that the Act should not extend to savings banks of a certain class. Upon the repeal of this proviso, it was held that savings banks of that class became liable to the duty (6).' Another effect of repeal is that if an Act is repealed before the powers whicli it gives have been fully exercised, although all conditions requisite for their exercise may be fulfilled, yet, in the absence of a saving clause, nothing further can be done under its authority. Thus the 13 Geo. III. c. 78 gave a defendant in an action for anythmg done in pursuance of that Act treble costs upon a nonsuit. After the trial of an action, but before judgment was signed, that Act was repealed by the Highway Act, 5 & 6 Will. IV. c. 50. It was held that the right to treble costs was taken away by such repeal (c). A local Act which imposed a liabihty to repair highways upon certain townships, and gave a form of indictment against them for non- repair, was repealed after an indictment had been preferred, but before its trial. Judgment was (a) Eojl of Shrewsbury v. Scott, 6 C. B. N. S. 1, 221. (h) Bank for Savings v. The Collector, 3 Wallace, 495. {() Ckarrinyton v. Mcat/icriwjham, 2 M. & W. 228. Digitized by Microsoft® 348 THE REPEAL OF STATUTES. arrested {d). By the 24th section of 13 Geo. III. c. 78, justices of the peace were empowered to make presentments of highways out of repair, and such presentments were rendered equivalent to the finding of a grand jury. This Act was repealed by 5 & 6 Will. IV. c. 50, between the date of the presentment of a highway and the trial of an indictment founded upon that presentment, and the judgment was arrested (e). So, too, prisoners were tried in September, 1820, for a theft committed on the 11th of July of the same year. On the 25th of July, 1820, the royal assent was given to the 1 Geo. IV. c. 117, repealing the Act 10 & 11 Will. III. c. 23, which deprived persons committing such an offence of the benefit of clergy. It was held that the prisoners could not be sentenced under either statute (_/). One or two other cases have given rise to a con- flict of opinion. The second section of 43 Eliz. c. 6 gave a judge power to deprive a plaintiff of costs by a certificate. Where a judge refused to certify until after the decision of a point reserved at the trial, and the Act was repealed before that point was decided, it was held that after its repeal the judge had no power to grant a certificate (gf). In a subsequent case, indeed, it was held that where a verdict was found before a repealing Act came into operation, and afterwards an application was made to a judge for an order giving the plaintiff his costs, the right to such an order had already (d) iJ. V. mnton, 18 Q. B. 761. (e) R. V. Mawgan, Inhabitants, 8 A. AETS OF A STATUTE. See Title, Pbbamble, Clauses, Sections, Pbovisoes, Savings, ExcEPTiONa, Schedules. Digitized by Microsoft® 370 INDEX. PENAL STATUTES extended to matters of subsequent creation, 168 statutes which are partly penal may he liberally construed, 232—234 to receive a strict construction, 243 what are penal statutes for this purpose, 243 — 246 what is strict construction, 246 — 248 close adherence to the letter of statutes, 249 — 253 cEises not brought within the meaning of the statutes, 253—255 ■object of statute must not be defeated, 255 — 257 instances in which this rule has been followed, 258 — 260 PENALTY. repeal by «hange of, 322 — 324 not by adding cumulative penalty, 324 — 326 POLICY. agreements contrary to policy of statute are void, 66 of government cannot be considered in construing statute, 107 general words restrained to things in harmony with previous policy of the law, 1 77 POPULAE MEANING to be given to words, 122 — 124 unless technical meaning has been acquired, 124, 125 unless it is at variance with proper meaning, 126, 127 PKEAMBLE not to restrain larger words in body of Act, 110, 278 unless vague or ambiguous, 279 key to open minds of makers of statute. 111, 277 effect usually given to it, 278 instances in which enacting words have gone beyond the preamble, 280—282 instances of enacting words being restrained by preamble, 284, 285, 289 conflicts of opinion, 286 — 289 may extend enacting words, 289, 290 PEESCRIPTION. no prescription against a statute, 31 unless it be affirmative or declaratory, 229, 230 Digitized by Microsoft® INDEX. 371 PRESUMPTION that Legislature knows the law, 1 2, 1 3 that Legislature knows construction put on statutes by Courts and by earlier Parliaments, 16 — 19 that Common Law not altered unnecessarily, 19 — 21 that statute law altered by change of language, 21 — 23 that every man knows the statute law of the realm, 30 against retrospective legislation, 157 of repeal by implication not to be adopted lightly, 317, 318 PEOCEDUEE. retrospective operation in cases of practice or procedure, 166 PEOTECTIOJSr given by statutes to those who act under their authority, 87 to what persons it is given, 87, 88 justices of the peace, 88, 89 constables and other officers, 89, 90 persons executing public works, 91 in cases of omission, 91 to what persons it is not given, 92 — 94 there must be honest belief that acts done are authorised, 94—96 reasonable beUef not necessary, 96, 97 but there must be some grounds for such belief, 97, 98 PEOVISO to be construed strictly, 246, 303 no real distinction between it and saving clause, 300, 301 suggested distinction between them, 301, 302 importance and effect of proviso, 302, 303 cannot enlarge enacting words, 303 distinction between proviso and exception, 304 proviso need not be negatived in pleading, 304 PUBLIC AND PEIVATE STATUTES. terms general and special more appropriate, 218 — 220 distinction between public and private statutes chiefly affects question of evidence, 218 — 220 SEASONABLE MEANING always to be given to words, 127 — 129 even if not strictly accurate, 130 B B 2 Digitized by Microsoft® 372 INDEX. EECITAL either of fact or law not conclusive, 14, 15 may alter the law, 15, 16 general words restrained hy, 174:, 283 — 285 effect of, similar to that of preamble, 282, 283 conflicts of opinion as to the restriction of general words by, 286, 289 REDDENDO SINGULA SINGULIS. general words of reference restricted by this means, 189 — 191 EEFERENCE, general words of, restricted, 187 — 189 reddendo singula singidis, 189 — 191 where general words occur at the beginning of a section, 189—191 where they occur at the end, 191, 192 words of reference preventing the repeal of a statute, 342, 343 EEMEDIAL STATUTES to receive a liberal construction, 230 what are remedial statutes, 231, 232 statutes which are partly penal, 232 — 234 what is liberal construction, 235 — 238 extension of words by equitj', 238, 239 most common with ancient statutes, 239—242 words restrained by equity, 242, 243 REPEAL by temporary statute may be perpetual, 270 not by form in a schedule, 307, 342 express, 809 may be in same session as enactment, 309 does not revive statutes already repealed, 309, 310 repealed Act in force till new provisions take effect, 310 by implication, 310 what is inconsistency between two statutes, 311' — 314 statute repealed by another passed in same session, 315, 316 one part of statute repealed by another, 316 such repeal only presumed in an extreme case, 317 repeal by implication not to be presumed without great care, 318 where it will not be presumed, 318, 319 limited to part which is repugnant, 320 modification of earlier statute substituted for repeal by implica- tion, 320—322 Digitized by Microsoft® INDEX. Vni REPEAL {continued). repeal by change of penalty, 322 — 324 by alteration in description of offence, 323 not by cumulative penalties, 324 — 326 repeal not usually effected by affirmatiye words, 326 — 328 \inless tliey introduce a new law, 328 — 330 special Acts not repealed by general, 330 — 332 rule prevailed in early times, 332, 333 modern instances in support of it, 333 cases where special privileges are given, 334 — 337 special Acts not repealed by subsequent special Acts, 338 where special Acts may be repealed by general Acts, 338 — 340 general Acts may be repealed pro tanto by special 4.cts, 340, 341 repeal cannot be effected by non-user, 341, 342 by words of reference, 342 by recital of intention to repeal without proper repealing words, 342 by unnecessary continuance of perpetual Act, 342 repeal prevented by incorporation or reference, 342, 343 repeal delayed by saving clause as to pending proceedings or rights already acquired, 343, 344 repealed Act to be considered as if it never existed, 344, 345 but it may be looked at on question of construction, 345, 346 repeal of one clause does not alter the construction of rest of statute, 345, 346 but may take away an exemption, 347 effect of repeal on powers given by statutes, 346 — 349 such powers cannot be exercised, 346, 347 nor can offences against the repealed statute be punished, 347—349 vested rights sometimes kept alive, 348, 349 RESPONSIBILITY imposed by statutes cannot be shifted, 68 RESTRICTIOX of operation of statute to matters arising after its passing, 157 — 166. See Retrospective Opeeation. of operation to things of most frequent occurrence, 169, 170 of general words, 171—186. See General Woeds. of words of reference, reddendo sinr/tda sinr/idis,^ 187 — 192 of operation where words of prohibition are modified, 211, 212 of words of remedial statutes by equity, 242, 243 of enacting words by preamble or recital, 283—286, 289 Digitized by Microsoft® 374 INDEX. EETROSPECTIVE. statutes not usually retrospective, 157 what statutes are not, 158, 159 vested rights of action not defeated, 159, 160 nor new rights created, 161 what statutes are, 162 what statutes are not properly called retrospective, 163, 164 operation given by express words, 165 operation in cases of practice or procedure, 166 EEVIVAL. statute not now revived by repeal of repealing statute, 309,310 EIGHTS. public or private rights not affected without express words, 47—49 cannot be enforced by indictment or action when same statute confers a right and creates a remedy, 72 vested rights of action not defeated by retrospective legis- lation, 159, 160 nor new rights created, 161 Acts taking away vested rights to be stnctly construed, 244 granted by statutes may be kept alive after repeal, 348, 349 SAVING CLAUSE. no real distinction between it and proviso, 300, 301 suggested distinction between them, 301, 302 cannot enlarge enacting words, 303 may delay repeal of statute as to pending proceedings, 343, 344 SCHEDULES. where variance between Act and schedule, Act prevails, 306, 307 forms in schedules merely examples, 306, 307 but are sometimes imperative, 307, 308 forms in, do not effect a repeal of an earlier statute, 307, 342 SECTIONS. statutes now divided into sections, 290, 291 aU sections to be read together, 291 but not necessarily construed alike, 291 inconsistent sections to be reconciled if possible, 291, 292 difficulty of reconciling them, 292, 293 marginal notes no part of sections, 293, 294 general headings to groups of sections, 294 — 296 interpretation clause, 296—300 not followed strictly,, 298 "include " used to extend, not define, 299, 300 Digitized by Microsoft® INDEX. 375 SENTENCES to be read grammatically in the order adopted by the framers of a statute, 99, 117 SPECIAL STATUTES. what are special statutes, 218, 221 — 223 how far they affect strangers, 220, 223, 224 are not repealed by general statutes, 330 — 332 this rule prevailed in early times, 332, 333 modern instances in support of it, 333 cases where special privileges are given, 334 — 337 not repealed by subsequent special statutes, 338 where they may be repealed by general statutes, 338 — 340 may repeal general statutes j;ro tanto, 34G, 341 SPIRIT. things must be within the spirit as well as the letter of penal statutes, 249—253 STATUTE LAW usually defined ais lex scnpta, 1 definition implies a certainty which does not exist, 2 causes of uncertainty of Statute Law, 2 — 8 1. Imperfection of language, 2, 3 2. Language and style of statutes themselves, 3, 4 Partly due to framers of statutes, 5 Partly to the Legislature, 6 3. Judicial interpretation, 7, 8 suggested definition of Statute Law, 8 distinction between legislative and judicial functions, 9 alterations in, when presumed, 21 from change of language, 21 from re-enactment of former provisions in different language, 21 — 23 STATUTES. means by which national wOl is expressed, 8, 9 must be expressed by the three branches of the Legislature, 10, 11 meaning of the word statute, 10 what is and what is not a statute, 10, 11 what is authentic record of statutes, 12 erroneous declaration of law in statutes inoperative, 13 recitals of fact or law in statutes not conclusive, 14 declaration or recitals may alter the law, 15 how expounded by the judges, 23 Digitized by Microsoft® 376 INDEX. STATUTES {continued). judges cannot inquire how statutes were passed, 24 statutes against the law of God or natural justice formerly held void, 25, 26 authority of. See Authority. construction of. See Construction. operation of. See Operation. kinds of. See Ancient and Modern, General and Special, Public and Private, Affirmative and Negative, De- claratory AND Enacting, Eemedial and Penal, Pari IMateria, Temporary Statutes. parts of. See Title, Preamble, Clauses, Sections, Pro- visoes, Savings, Exceptions, Schedules. repeal of. See Eepbal. STEICT CONSTRUCTION of special powers given hy statutes, 54 where new jurisdiction is conferred, 55 whether civil or criminal, 56 where matters of public interest are concerned, 57 where statute authorises an interference with private property, 59 where bye-laws are made in pursuance of statutes, 61 where certificates are given in pursuance of statutes, 62 of special Acts giving power to companies, 222, 223, 245 of penal statutes, 243 what are penal statutes for this purpose, 243, 246 of interpretation clause, 246, 296, 297 what is strict construction, 246 — 248 close adherence to the letter of statutes, 249 — 253 cases not brought within the meaning of the statutes, 253—255 object of statute must not be defeated, 255 — 257 instances in which this rule has been followed, 258 — 260 STEANGEES. how far bound by special statutes, 220, 223, 224 SUBJECT MATTEE. words to be read according to, 137, 141 general words restrained by, 175, 176 SUBSEQUENT CREATION. operation of statutes extended to matters of, 166, 169 even in case of Penal Act, 168 Digitized by Microsoft® lyDEx. 37 r SUPERIOR COURTS. jurisdiction of, not taken away witliout express words, 42 whether jm-isdiction is talten away by statutes giving jurisdic- tion to justices of the peace or arbitrators, 45 — 47 statutes derogating from jurisdiction inherent in Superior Courts to be construed strictly, 244 TAXES. Acts imposing taxes to be strictly construed, 244, 248 TEIMPORARY STATUTES, what are, 269 distinction between them and repealed statutes, 269, 270 repeal by temporary statutes, 270 perpetual statute not rendered temporary if continued unneces- sarily, 270, 271 THIXGS DONE i:JT PURSUANCE OF A STATUTE, meaning things intended to be done, 87 or things omitted, 91 if there is an honest belief that the things done are autho- rised, 94 a reasonable belief not necessary, 96 but there must be some grounds for the belief, 97 TITLE. question whether title part of a statute, 272, 273 mode in which it passes, 273 cannot restrict the effect of general language, 274 may show the intention of the Legislature, 274, 275 sometimes influences the construction of statutes, 275, 276 full title need not be cited, 277 USAGE. evidence of confernporanea expositin, 143 — 146 must be uniform and general, 146 VENUE. right of changing venue not taken away without express words, 44 Digitized by Microsoft® 378 INDEX. acts which are void may he confirmed and rendered valid by- statute, 29 agi-eements contrary to the policy of statutes are void, 66 contracts in violation of statutes are void, 80 things declared void considered voidable only, 211 WHOLE of each statute to be considered, 99, 108 — 111 ,■ ' K.J--' I /79- /S^ WOEDS U^^'^-"-' ■' '-' '-' ■■" • ■ - ' ^ cannot be added to statutes, 52 all words to receive their full and proper meaning, 99, 117, 118 things within the words not within the purview, 101 object of judicial construction to ascertain the mind of the Legislature as expressed in words, 102 — 104 to receive their natural meaning, even when it is doubtful if that agrees with intention of Legislature, 105 may only be inserted to avoid manifest absurdity or repug- nance, 118 instances in which they have been inserted, 118 — 120 instances of mistakes being corrected, 121 to have their ordinary grammatical meaning, 122 popular meaning, 122 — 124 unless technical meaning has been acquired, 124, 125 unless popular meaning at variance with proper meaning, 126, 127 always to receive reasonable meaning, 127 — 129 even though that not strictly accurate, 130 not to be read too literally, 131 read in wider sense than they usually bear, 131 — 134 in narrower sense, 134, 135 various meanings given to them, 135 even in the same Act, 136 to be read according to subject matter, 137 — 141 is their meaning affected by change of circumstances? 141 used for examples in ancient statutes, 215 — 217 ambiguous words in one Act explained by Act m pari mateiid, 263 enacting words may go beyond the preamble, 280, 282 but are sometimes restrained by it, 284, 285, 289 are sometimes extended by it, 289, 290 cannot be enlarged by proviso or saving clause, 303 Digitized by Microsoft® INDEX. 379 WOEDS AXD PHEASES. "abbots, priors, &e.," not including bishops, 183 " Act to be passed," including Act passed, 156 "aforesaid" may refer to earlier part of Act, or section, 188 " afternoon Dinne service " used in popular sense, 122 " ancestor," including predecessor, 2-10 "and "read as "or," 130 not in penal statute, 252 " an)- act " restrained by recital, 283, 284 "any wiU or codicil" limited to wills and codicils of real estate, 275, 276, 289 "appraiser," meaning professional appraiser, 134 '■apprentice," when including articled clerk, 138 " article other than eggs, butter, or fruit," including a horse 186 " beyond the seas," out of the realm, 125 " Bishop of Norwich," put for example, 215 " Bohea tea," in its trade sense, 124 " bread usually sold," at what time 1 141 "bridge," not including floating bridge, 126 " captain," including conductor, 258 " carts carrying manure," including carts going for manure, 237 " cities, towns, corporate boroughs, and places," do not include places not incorporated, 182 " competent" not mental capacity, 140 " contract," including bond, 123 " copper and other metals," not including gold and silver, 184 " county, riding, or other division," meaning other similar divisions, 182 " courts baron and other courts," extending to courts at "West- minster, 184 " crew," including officers, 259 " dead, absent, or otherwise incapable of acting," including disqualification, 186 " debt contracted," whether confined to contracts, 125 " disclosure," statement for first time, 129 "district surveyor or other person," other official, 183 " doors of all the churches," principal door of each church, 129 " drawing more than five feet of water " means ordinary draught, 259 "employed in transportation of slaves," includes outward voyage, 259 " entitled to vote " in penal statute, 250 " exported from a port " used in popular sense, 122 "fabricate" implies criminal intention, 254 " fence," including ditch, 1 30 " fodder for cattle," including barley about to be ground into meal, 237 Digitized by Microsoft® INDEX. OEDS AND PHEASES (eontmued). " forthwith," within reasonable time, 132 "found committing," 97 " gold and silver" not pure gold and silver, 124 "government or other stock," including railway shares, 263, 264 " hereinbefore " may refer to earlier parts of Act, or section, 187 "hospital" used popularly, 122 " house, office, room, or other place," including an umbrella, 185 "house or place," whether including portable booth, 127 "immediately," within reasonable time, 132, 133 "inability" not mability to pay debts, 140 " include," used to extend, not define, 299, 300 "insolvent circumstances," used in popular sense, 122 " instrument of gaming " in penal statute, 250 "issued" not changed into "levied," 131 " King George," applicable to the sovereign for the time being, 217 " land," including fishery, 130 not including tithes as chattel, 298 "lands, tenements, and hereditaments" confined to things ejusdem generis, 180 " leaving at registry," not meaning personal service on registrar elsewhere, 250 " man," not including woman, 123 "man, dog, or cat," including all animals, 216 "manors or other royalties," royalties of same nature, 183 " marry" used in different sense in same section, 136 "mask, dress, or other thing," including crow bar, 185 "may," whether imperative, 196, 197, 199, 204 "minerals," not confined to metals, 126 "nature of interest," including quantity, 141 "near," meaning of, in penal statute, 249 "next," next practicable, 133 "obstruction of mail," not including arrest of its carrier, 128 " on" or "upon," meaning either at or after a time, 139 "owner," including trustee, 125 "paper" made from animal fibre, 134 "parish" not restricted by interpretation clause, 298 " parochial rates " same as " taxes of the parish," 264 "parsonage or vicarage," not including curacy, 249 " party wall," 31, 32 "person or persons" may include corporations, 131 "preferred," meaning tried, 133 "progenitors," meaning predecessors, 132 "purchaser," in commercial sense, 124 Digitized by Microsoft® IXDF.X. 381 WORDS AND PIIKASES (continued). "i-olief to widow" may be relief to cliiklvon as well, 126, 127 " rent," moaning annual value, 130 used in different senses in same section, 136 not including rent reserved by lease, 298 "residence" construed according to subject matter, 140 "sewer," including wall, 130 "sliall be lawful," whether imperative, 194, 195, 201, 202, 203, 205 " ship " not restrained by interpretation clause, 299 " single woman," including widow or married woman, 236, 237 " spirits," not including sweet spirits of nitre, 123 " street " not restrained by interpretation clause, 300 '•sue" confined to actions, 125 "sufficient evidence," _pnm(J /«CTe or more, 139, 140 " taxed cart," technical meaning, 125 " things done in pursuance of an Act," 87 " this Act," not including other penal statutes, 252, 253 but including other Acts //( pari nmteria, 264 — 266 " timber, stone, or other thing," not including straw, 180 " to give his vote " means before voting, 250 " town," used in popular sense, 122 " tradesmen, artificers, or other persons," not including attorneys or farmers, 182 "void" construed voidable, 211, 212 "worsted" distinct from wool, 124 "\vreck," not including drift timber, 129 THE END. LONDON : STKVENS AND BICHARDSON, PRINTBKS, 5, GREAT QUEEN STREET, LINCOLN'S INN FIELDS. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®