"The rule," says Lord Hardwicke, "touching the repeal of laws, is leges posteriores priores contrarias abrogant; but subsequent acts of Parliament, in the affirmative, giving new penalties, and instituting new methods of proceeding, do not repeal former methods and penalties of proceeding, ordained by preceding acts of Parliament, without negative words." It seems to be true, therefore, and in accordance with the opinion here expressed, that, in order to repeal an existing enactment, a statute must either have express words of repeal, or must be contrary to the provisions of the law said to be repealed, or that at least mention must be made of that law, showing an intention of the framers of the later act of Parliament to repeal the former.2

Where, then, both acts are merely affirmative, and the substance such that both may stand together, the later does not repeal the former, but they shall both have a concurrent efficacy. For instance, if, by a former law, an offence is indictable at the quarter sessions, and the later law makes the same offence indictable at the assizes; here the jurisdiction of the sessions is not taken away, but both *have a concurrent jurisdiction, and the offender may [*26] be prosecuted at either, unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere. So, the general rule of law and construction undoubtedly is, that, where an act of Parliament does not create a duty or offence, but only adds a remedy in respect of a duty or offence which existed before, it is to be construed as cumulative; this rule must, however, in each particular case, be applied with due attention to the language of the act of Parliament in question. If, for instance, a crime be created by statute, with a given

I Middleton v. Crofts, 2 Atk. 674, cited Wynn v. Davis, 1 Curt. 79.

2 Per Sir H. Jenner, 1 Curt. 80. See also the cases cited; argument Reg. v. Mayor of London, 16 L. J., Q. B. 191.

31 Bla. Com. 90; Dr. Foster's case, 11 Rep. 62, 63; argument, Ashfon v. Poynter, 1 Cr., M. & R. 739; Rex v. Aslett, 1 B. & P., N. R., 7: Langton v. Hughes, 1 M. & S. 597; Com. Dig. "Parliament," (R. 9).

41 Bla. Com. 90. See also the arguments in Reg. v. St. Edmund's, Salisbury, 2 Q. B. 72; Reg. v. Justices of Suffolk, Id. 85, where it was held, that, where a separate court of quarter sessions has been granted to a borough under stat. 5 & 6 Will. 4, c. 76, the recorder, under sect. 105, has exclusive jurisdiction of appeals against orders of removal made by the borough justices. See also Reg. v. Deane, 2 Q. B. 96.

5 Judgment, Richards v. Dyke, 3 Q. B. 268. 2 Dwarr. Stats. 674, 678. See Thibault, q. t. v. Gibson, 12 M. & W. 88.

penalty, and be afterwards repeated in a subsequent enactment, with a lesser penalty attached to it, the new act would, in effect, operate to repeal the former penalty; for, though there may no doubt be two remedies in respect to the same matter, yet they must be of different kinds.1

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 never had existed. There is, however, a difference to be remarked between temporary statutes and statutes which have been repealed; *for, although the latter (except so far as they relate to transactions already completed under them) [*27] become as if they had never existed, yet, with respect to the former, the extent of the restrictions imposed, and the duration of the provisions, are matters of construction.3

If a statute which repeals another is itself subsequently repealed, the first statute is thereby revived, without any formal words for that purpose; but where a contract for insuring tickets in the lottery was void by statute when made, such contract was held not to be set up again by a repeal of the statute between the time of contracting and the commencement of the suit.s

Prior to the stat. 33 Geo. 3, c. 13, it was not possible to know the precise day on which an act of Parliament received the royal assent, and all acts passed in the same session of Parliament were considered to have received the royal assent on the same day, and were referred to the first day of the session; but, by the above statute, it is provided that a certain parliamentary officer, styled "the clerk of the Parliaments," shall indorse, on every act of Parliament, "the day, month, and year, when the same shall have passed and shall have received the royal assent, and such indorsement shall be taken to be a part of such act, and to be the date of its commencement, where no other commencement shall be therein

1 Henderson v. Sherborne, 2 M. & W. 239; per Lord Abinger, C. B., AttorneyGeneral v. Lockwood, 9 M. & W. 391; Rex v. Davis, Leach, C. C. 271. See also Wrightup v. Greenacre, 16 L. J., Q. B. 246; recognising Pillington v. Cooke, cited Id. 251.

2 Per Lord Tenterden, Surtees v. Ellison, 9 B. & C. 752; per Parke, B., Simpson v. Ready, 11 M. & W. 346.

3 Per Parke, B., Steavenson v. Oliver, 8 M. & W. 241.

41 Bla. Com. 90. See 2 Inst. 685.

5 Jaques v. Withy, 1 H. Bla. 65, cited per Coleridge, J., Hitchcock v. Way, 6 A. & E. 946.

provided." When, therefore, two acts, passed in the same session. of Parliament, are repugnant or contradictory to each other, that act which last received the royal assent will prevail, and will have the effect of repealing the previous statute. The same principle *moreover applies where the proviso of an act is directly re[*28] pugnant to the purview of it; for in this case the proviso shall stand, and be held to be a repeal of the purview, as it speaks the last intention of the makers.2

Not merely does an old statute give place to a new one, but, where the common law and the statute differ, the common law gives place to the statute, if expressed in negative terms. And, in like manner, an ancient custom may be destroyed by the express provisions of a statute. Statutes, however, "are not presumed to make any alteration in the common law further or otherwise than the act does expressly declare; therefore, in all general matters, the law presumes the act did not intend to make any alteration, for, if Parliament had had that design, they would have expressed it in the act."

NOVA CONSTITUTIO FUTURIS FORMAM IMPONERE DEBET,

NON PRÆTERITIS.

(2 Inst. 292.)

A legislative enactment ought to be prospective, and not retrospective, in its operation. Every statute which takes away or impairs a vested right acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect of transactions or considerations already past, must be deemed retrospective' in its operation, and opposed to those principles of jurisprudence which have [*29] been universally recognised as sound. In the Roman law we

find it laid down generally, that nemo potest mutare consilium suum

1 Rex v. Justices of Middlesex, 2 B. & Ad. 818; Paget v. Foley, 2 Bing. N. C. 691.

2 Attorney-General v. The Chelsea Waterworks Company, Fitzgib. 195, cited 2 B. & Ad. 826.

31 Bla. Com. 89; Co. Litt. 115, b; Paget v. Foley, 2 Bing. N. C. 679; Per Lord Ellenborough, C. J., R. v. Aslett, 1 N. R. 7.

4 Bac. Abr., 7th ed., "Statute," (G).

5 See The Salters' Company v. Jay, 3 Q. B. 109.

6 Per Trevor, C. J., 11 Mod. 150.

7 Per Story, J., 2 Gallis. R. (U. S.) 139. In the judgment of Kent, C. J., Dash v. Van Kleeck, 7 Johns. R. (U. S.) 503, et seq., the rule as to nova constitutio is fully considered, and the cases and authorities upon this subject are reviewed.

in alterius injuriam ; and this maxim has, by the civilians,2 been specifically applied as a restriction upon the law-giver, who was thus forbidden to change his mind to the prejudice of a vested right; and that this interpretation of the rule is at all events in strict conformity with the spirit of the civil law appears clearly by a reference to the Code, where the principle which we here propose to consider, is thus stated: Leges et constitutiones futuris certum est dare formam negotiis, non ad facta præterita revocari; nisi nominatim et de præterito tempore et adhuc pendentibus negotiis cautum sit.3 Laws should be construed as prospective and not retrospective, unless they are expressly made applicable to past transactions, and to such as are still pending."

It is then in general true, that a statute shall not be so construed as to operate retrospectively, or to take away a vested right, unless it contain either an enumeration of the cases in which it is to have such an operation, or words which can have no meaning unless such a construction is adopted."

In a very recent case it was, in accordance with the above doctrine, laid down, that, where the law is altered by statute pending an action, the law, as it existed when the action was commenced, must decide the rights of the parties in the suit, unless the legislature express a clear intention to vary the relation of litigant parties to each other. And on the same principle it was held, that

the statute 2 & 3 Vict. c. 29, s. 2, does not apply to a case [*30]

7

where the assignees in bankruptcy were appointed before its passing; for, if so, it would operate to defeat rights antecedently vested in the assignees. Again, the Statute of Frauds (29 Car. 2, c. 3) was passed in 1676, and by Sect. 4 provides, that, "from and after the 14th June, 1677, no action shall be brought whereby to charge any

ID. 50, 17, 75.

2 Taylor, Elem. Civ. Law, 168.

3 Cod. 1, 14, 7.

'See 15 Tyng. R. (U. S.) 454. 5 7 Bac. Abr., 7th ed., "Statute,” (C), p. 439. See Latless v. Holmes, 4 T. R. 660; Doe d. Johnson v. Liversedge, 11 M. & W. 517; Dash v. Van Kleeck, 7 Johnson, R. (U. S.) 477.

Hitchcock v. Way, 6 A. & E. 943, 951; Paddon v. Bartlett, 3 A. & E. 895, 896. In Chappell v. Purday, 12 M. & W. 303, Lord Abinger, C. B., observed, with reference to sects. 11 & 14 of the statute 5 & 6 Vict. c. 45, for amending the Law of Copyright, "The statute cannot in reason apply to the case of a controversy existing at the time it was passed."

7 Moore v. Phillipps, 7 M. & W. 536. See also Edmonds v. Lawley, 6 M. & W. 285. As to the operation of stat. 6 Geo. 4, c. 16, see Young v. Rishworth, 8 A. & E. 470; Benjamin v. Belcher, 11 A. & E. 350.

person upon any agreement made upon consideration of marriage, &c., unless the agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing, and signed by the party or some other person thereunto by him lawfully authorized;" and the question was, whether a promise of marriage made before the new act, but to be performed after, would maintain an action without note in writing. The Court were of opinion that the action lay, notwithstanding the act, and agreed that the act did not extend to promises made before the 24th of June; and judgment was given for the plaintiff.1

Where a patent originally void was amended under 5 & 6 Will. 4, c. 83, by filing a disclaimer of part of the invention, it was held that the above act has not a retrospective operation, so as to make a party liable for an infringement of the patent prior to the time of entering such disclaimer. "The rule," observes Parke, B., “by

which we are to be guided in construing acts of Parliament, [*31] is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice, and, if it should, so to vary and modify them as to avoid that which it certainly could not have been the intention of the legislature should be done. Now, if the construction contended for was to be considered as the right construction, it would lead to the manifest injustice of a party who might have put himself to great expense in the making of machines or engines, the subject of the grant of a patent, on the faith of that patent being void, being made a wrong-doer by relation; that is an effect the law will not give to any act of Parliament, unless the words are manifest and plain.'

Where, however, the words of a statute "are manifest and plain," the Court will give effect to them, notwithstanding any particular hardship, inconvenience, or detriment, which may be thereby occasioned. For instance, by letters-patent granted to the plaintiff, it was, amongst other things, provided, that, if the plaintiff should not particularly describe and ascertain the nature of his invention, and in what manner the same was to be performed, by an instrument in writing under his hand and seal, and cause the same to be enrolled

1 Gilmore v. Shuter, Jones, R. 108; S. C., 2 Lev. 227.

2 Perry v. Skinner, 2 M. & W. 471, 476. See also Stocker v. Warner, 1 C. B. 148, 167; Russell v. Ledsam, 14 M. & W. 574, S. C. (in error), 16 L. J., Exch. 145. As to the general principle illustrated in the text, see Doe d. Evans v. Pye, 5 Q. B. 767, 772, decided with reference to stat. 3 & 4 Will. 4, c. 27, s. 7; Thompson v. Lack, 3 C. B. 540, decided with reference to stat. 7 & 8 Vict. c. 96, s. 25.