(4) To alter a

of law.

Company to the Crown, and the same Act vested in the
Crown all the funds at the disposal of the Company, and
it was contended on the part of the Crown that, although
the Company had ceased to employ troops in India, this
Act had deprived the plaintiff of his right to have the
money handed back to him. The House of Lords, however,
did not adopt this view, and they held that as this claim
of Lord Clive's representative against the Company was
neither expressly released nor prohibited by the Act in
question, that Act could not in any manner avail to take
away the right of action under that covenant. "This
result," said Lord Westbury, "follows of necessity, con--
sistently with every rule by which Acts of Parliament
ought to be interpreted, especially the rule that they
should be so interpreted as in no respect to interfere with or
prejudice a clear private right or title, unless the private
right or title is taken away per directum." So in Randolph
v. Milman (1868), L. R. 4 C. P. 107, it was contended that
by virtue of 3 & 4 Vict. c. 113, passed for the purpose of
vesting in the Ecclesiastical Commissioners the estates of
certain deaneries, the non-residentiary prebendaries of
cathedrals were deprived of their right to vote at the
election of proctors. They had enjoyed this right from
time immemorial, and there being no express words in the
statute by which the right was taken away, the Court
decided that they still retained the right.
the Court (at p. 113), "with the principle of the law stated by
Sir Roundell Palmer at the outset, that vested rights are
not to be taken away without express words or necessary
intendment or implication, and upon adverting to the
statute it will be found that there is no express extinction
of the right here claimed, and no necessary implication or
intendment to that effect."

"We agree,” said

(4) It also requires a distinct and positive legislative en-clear principle actment to alter any clearly established principle of law.(i). "Statutes," said the Court of Common Pleas in Arthur v. Bokenham (1708), 11 Mod. 150, "are not presumed to

(i) See this point further discussed in chapter on "Effect of Statutes on the Common Law," Part II. ch. iii.

make any alteration in the common law further or otherwise than the Act does expressly declare." Thus, in Rolfe and the Bank of Australasia v. Flower (1866), L. R. 1 P. C. 27, it was contended that it was the intention of the Colonial Legislature by their Act of 5 Vict. No. 17, s. 39, to alter the well-known principle of bankruptcy law, that a joint creditor having a security upon the separate estate is entitled to prove against the joint estate without giving up his security. In deciding against this contention the Judicial Committee said, at p. 48: "If this were the establishment of a new code of insolvent law, and it was the object of the Colonial Legislature to prevent the operation of a rule which they considered unjust, it is hardly to be imagined that they would have committed their intention to the equivocal meaning of a few words in a single section of the Act."

or take from

(5) A distinct and unequivocal enactment is also re- (5) To add to quired for the purpose of either adding to or taking from jurisdiction of the jurisdiction of a superior court of law. "I cannot court of law. think," said Grove, J., in Cousins v. Lombard Bank (1876), 1 Ex. D. 406, "that by 38 & 39 Vict. c. 50, s. 6, the Legislature contemplated an extension of the right of appeal. . . . . The change would have been great in principle, and if the Legislature had intended to introduce it, clear language would have been employed." Thus, in Smith v. Brown (1871), L. R. 6 Q. B. 729,(k) it was argued that 24 Vict. c. 10, s. 7, which gives jurisdiction to the Admiralty Court over "any claim for damage done by a ship," gave the Admiralty Court jurisdiction to entertain a suit on account of personal injuries occasioned by the collision of two vessels. But," said the Court, "it seems to us impossible to suppose that the Legislature can have intended under a general enactment like the present, as it were by a side wind, to effect so material a change in the rights and relative positions of the parties concerned in such an action." Similarly, in Att.-Gen. v. Sillem (1864), 10 H. L. C. 704, the question

(k) Approved by the House of Lords in Seward v. Vera Cruz, (1884) 10 App. Cas. 59.

arose whether 22 & 23 Vict. c. 21, s. 26, which gave the Court of Exchequer power to make rules as to the "process, practice, and mode of pleading" on the revenue side of the Court, enabled them to grant a right of appeal in such cases to the Exchequer Chamber, a right which had not previously existed. The House of Lords decided that the Court of Exchequer had no such power, there being no express mention in the Act as to giving any new right of appeal. "The creation," said Lord Westbury, " of a new right of appeal is plainly an act which requires [distinct] legislative authority."

Similarly as to ousting the jurisdiction of a superior Court. "No rule is better understood," said Pollock, B., in Oram v. Brearey (1877), 2 Ex. D. 348, "than that the jurisdiction of a superior Court is not to be ousted unless by express language in, or obvious inference from, some Act of Parliament."() "I do not mean to say," said Jessel, M.R., in Jacobs v. Brett (1875), L. R. 20 Eq. 6, “that it may not be done by necessary implication as well as by express words, but at all events it must be done clearly." "The general rule undoubtedly is," said Tindal, C.J., in Albon v. Pyke (1842), 4 M. & G. 424, "that the jurisdiction of superior Courts is not taken away except by express words or necessary implication." In Balfour v. Malcolm (1842), 8 Cl. & F. 485, at p. 500, Lord Campbell said: "There can be no doubt that the principle is that the jurisdiction of the supreme courts can only be taken away by positive and clear enactments in an Act of Parliament." Therefore, inasmuch as "the power of the Court of Queen's Bench to change the venue is a common law power, words," said Lord Campbell in Southampton Bridge Co. v. Southampton L. B. (1858), 8 E. & B. 604, "should be very strong which are relied upon to take away such power." This general rule, when relating to the trial of new offences created by statute, was well explained by Lord Mansfield in Hartley v. Hooker (1777), 2 Cowp. 523. In

(1) The decision in this case was overruled in Dale v. Chapman (1885), 14 Q. B. D. 855, but the observation quoted was adopted by Lindley, L.J., at p. 858.

that case a qui tam information was brought in the Sheriff's
Court of the city of York, under 13 & 14 Car. 2, c. 26, which
enacted that "all offences shall be determined. . . . in
the Court of Record of the city wherein such offence shall
be committed," and it was sought to remove the information
into the Court of King's Bench. It was objected, however,
that the jurisdiction of the King's Bench was taken away
by the words of the statute. But Lord Mansfield said as fol-
lows: "If a new offence is created by statute, and a special
jurisdiction, out of the course of the common law, is prescribed
it was to be followed.
But where a new offence is

created and directed to be tried in an inferior court, such inferior court tries the offence as a common law court, subject to all the consequences of common law proceedings, one of which consequences is that it is liable to be removed in this Court, and this Court cannot be ousted of this jurisdiction without express negative words."

down effect

(6) Also, as Lord Tenterden said in Morris v. Mellin (6) To cut (1827), 6 B. & C. 446, "It is a general rule, in the inter- of a written pretation of Acts of Parliament, that an enactment, the instrument. effect of which is to cut down, abridge, or restrain any written instrument shall have a limited construction;" or, in other words, as Bayley, J., put it, "in order to avoid any written instrument by positive enactment, the words of that enactment ought to be so clear and express as to leave no doubt of the intention of the Legislature." Thus, 12 & 13 Vict. c. 106, s. 137, enacts that "every judge's order made by consent given by a trader defendant in a personal action shall be filed," as therein required, "otherwise such order shall be null and void to all intents and purposes whatever." But it was held in Bryan v. Child (1850), 5 Ex. 368, that this enactment does not avoid such a judge's order as against the trader himself, but only as against his assignees if he afterwards becomes bankrupt.

CHAPTER IV.

WHAT SOURCES OF INFORMATION OUTSIDE A STATUTE MAY BE USED FOR THROWING LIGHT UPON ITS MEANING.