consolidation Acts. In Mitchell v. Simpson (1890), 25

Q. B. D. 188, Lord Esher, in speaking of the Sheriffs 50 & 51 Vict.
Act, 1887, said, "The Act of 1887 is a consolidation c. 55,
Act, and the provision in question is in substantially the

same terms as that of the Act of Geo. 2, and therefore, 32 Geo. 2, c. 28.
in order to determine the meaning of the provision we
must consider to what the Act of Geo. 2 was applicable."
This was a strong instance, as the arrest on mesne process,
to which the Act of Geo. 2 solely applied, was by 1869
almost, if not wholly, abolished. But the rule must be
adopted with caution, for it is almost impossible in the
process of consolidation to avoid some dislocation and
change in the effect of the consolidated enactments.

The true effect of such Acts is to combine in a consecutive form the provisions scattered about the Statutebook, to avoid repetitions, and remove inconsistencies.

In Rhodes v. Airedale Commissioners (1876), 1 C. P. D. "Damage." 391, Lord Coleridge said, with regard to the word

6

trusted."

damage," as follows: "The Legislature, in using the word damage,' used a word to which a legal meaning had already been affixed by judicial decisions, it must be taken to have used it in the sense ascertained by those decisions, i.e., actionable damage."(u) Again, in Monk v. Whittenbury (1831), 2 B. & Ad. 484, it ap- "Agent enpeared that in s. 2 of 6 Geo. 4, c. 94, the expression "person entrusted" is used, but that in s. 4 of that Act the expression used is "agent entrusted," and that this latter expression has been substituted advisedly for the expression "person entrusted" because a different meaning was intended to be conveyed. Subsequently, in the repealed Factors Act, 5 & 6 Vict. c. 39, the expression agent entrusted" was again employed; consequently, in Cole v. N. W. Bank (1875), L. R. 10 C. P. 371, the

(u) It has been held in an American case, Ex parte Vincent (1856), 26 Alabama 145, that, "When words are used by the Legislature in reference to a matter or subject which, when used in relation to the same subject at the common law, have obtained a fixed and definite meaning, the inference is irresistible that they were intended to be used in the common law sense." It is submitted that the Courts would so hold in England, were the occasion to arise.

N

"Lands."

Banker."

Court held that the employment of the expression "agent
entrusted" in preference to the expression "person
entrusted" was for the express purpose of conveying the
meaning put upon that expression in Monk v. Whittenbury.
So, in Edinburgh Water Co. v. Hay (1854), 1 Macq.
H. L. (Sc.) 682, 687, where the question was, whether
a certain water company were such occupiers of the
land through which their pipes passed as to be liable
to be rated under the Scotch Poor Law Act of 8 &
9 Vict. c. 83, the Lord Chancellor (Lord Cranworth),
said in his judgment, after pointing out that the same
question had already been decided with regard to the
liability of water companies in England under the Act
of 43 Eliz. c. 2, "It is impossible to believe that the
Legislature could intend that the word 'lands' should
mean one thing in an Act with reference to Scotland and
another thing in an Act with reference to England, more
particularly as the object of the Scotch Act was to intro-
duce into Scotland enactments very analogous to those
already existing in England. The Legislature must be
supposed to have had the result of the decisions as to the
English statute present to its mind when it passed this
Act relating to Scotland." In Davies v. Kennedy (1869),
Ir. R. 3 Eq. 691, Christian, L.J., relied upon this prin-
ciple in arriving at the meaning of the word "banker"
as used in 33 Geo. 2, c. 14 (Irish Act). This Act had
been passed to extend the enactments contained in
8 Geo. 1, c. 14, and the question was, whether this later
Act applied to all bankers or only to those who issued
notes. "All are agreed," said the Lord Justice, "that to a
right understanding of this later Act, its parent Act, the
8 Geo. 1, c. 14, must first be understood. If the earlier
Act cannot in construction be confined to banks of issue, it
is admitted that neither can the later one, whilst, on the
other hand, if the former can be so confined, an important,
though not conclusive, step will have been made towards
a similar restriction upon the later." Having given his
reasons for holding that the earlier Act applied only to
bankers issuing notes, he continued as follows: "I have

now, I think, attained the proper point of view from which to approach the task of construing the Act of Geo. 2, that is to say, the point of view from which the Legislature of the day must have viewed the measure when they were framing it.” He ultimately, after arguing the matter at considerable length, came to the conclusion that the Legislature advisedly used the same word in the later Act which they had employed in the earlier Act.(x)

at sea.

assumed to

own distinc

Again, if we find that in previous legislation two Legislature different words have been designedly used to express remember its two distinct things, we may assume that in subsequent tions. statutes the Legislature has not lost sight of the distinction uniformly observed in the preceding statutes. Thus, in Smith v. Brown (1871), L. R. 6 Q. B. 729, the question was whether the Legislature in enacting in 24 Vict. c. 10, s. 7, "that the High Court of Admiralty shall have jurisdiction over any claim for damage done by any ship," intended to give the Court jurisdiction in cases where personal injuries and death were caused by collisions It was argued, on the one hand, that the word "damage" was a general word, and that, according to the rule elsewhere (y) laid down as to limiting the effect of general words, the word ought to be held to include personal injuries. On the other hand, it was pointed out that in previous enactments on this subject the word " injury was always used when it was intended to legislate as to personal injuries and loss of life, and that the word "6 damage" was confined to harm done to property and inanimate things. This latter argument prevailed.(2) “That this distinction," said Cockburn, C.J., "is of a substantial character and necessary to be attended to is apparent from the fact that the Legislature in two

66

(a) Although this judgment was overruled by the House of Lords in Copland v. Davies (1872), L. R. 5 H. L. 358, 397, this particular argument was not questioned.

(y) Infra, p. 201.

(2) The dicta of Baggallay, L.J., in The Franconia (1877), 2 P. D. 174, as to this case of Smith v. Brown may be considered as dissented from by the House of Lords in Seward v. Vera Cruz (1884), 10 App. Cas. 59.

Construction in accordance with public policy.

recent Acts, both having reference to the liability of shipowners in respect to 'injury' and 'damage,' has in a series of sections carefully observed this distinctive phraseology, speaking in distinct terms in the same section of loss of life and personal injury on the one hand, and loss and damage done to ships, goods, or other property on the other. In those Acts the term 'damage' is nowhere used as applicable to injury done to the person, but is applied only to property and inanimate things, and we see no reason to suppose that the Legislature in using the term in the enactments we are considering had lost sight of the distinction uniformly observed in the preceding statutes."

4. If there is a general tendency of decision, whether at common law or under statute, to a particular legal result, it may fairly be said to be the policy of the law to effect that result.

In construing statutes, however, this policy can only be taken into account when the statute being dealt with is not explicit. To adopt any other method of construction is to impose upon the subject the political, moral, social, or religious views of the judges, instead of construing and ascertaining the definite intention of the Legislature.

It has been sometimes said that a statute may be construed in accordance with public policy.

It was argued by Serjeant Stephen in Hine v. Reynolds (1840), 2 Scott N. R. 419, that "it is a sound general principle in the exposition of statutes that less regard is to be paid to the words that are used than to the policy which dictates the Act;" and in R. v. Hipswell (1828), 8 B. & C. 471, Bayley, J., held that the word "void as used in 28 Geo. 3, c. 48, s. 4, "should receive its full force and effect," because it hadbeen introduced into the statute "for public purposes." The cases, however, cited by Serjeant Stephen in support of his proposition do not bear it out, and on several occasions this principle of construction has been called in question. In R. v. St. Gregory (1834), 2 A. & E. 99,

107, Taunton, J., said, with regard to the dictum of Bayley, J., in R. v. Hipswell, “In that case the judgment was rested partly on the consideration of public policy, a very questionable and unsatisfactory ground, because men's minds differ much on the nature and extent of public policy."

If public policy is taken as meaning general considerations of State or of opinion apart from the statute under discussion, the existence of the rule is open to serious question, and its application is difficult, if not mischievous.

If the term merely indicates the policy (a) of the Legislature as indicated in the statute or group of statutes under consideration, it is merely an alternative confession to "the intention,' ""the evil" or "the mischief" (b) of the statute.

the rule.

Many judges have pointed out the dangers of re- Objections to sorting to considerations of public policy in the first sense as an aid to the construction of contracts in terms

which are equally applicable to statutes.

In Hardy v. Fothergill (1888), 13 App. Cas. at p. 358, Lord Selborne thus stated the proper course to be adopted :-"It is not, I conceive, for your lordships or for any other Court to decide such questions as this under the influence of considerations of policy, except so far as that policy may be apparent from, or at least consistent with, the language of the Legislature in the statute or statutes upon which the question depends."

"Public policy," said Burroughs, J., in Fauntleroy's case,(c) "is a restive horse, and when you get astride of it there is no knowing where it will carry you."(d)

The question arose in Re Mirams (1891), 1 Q. B.

(a) For discussion of the policy of a colonial Act, see Alison v. Burns (1889), 15 App. Cas. 50.

(b) "It is a settled principle that the Court should so construe an Act of Parliament as to apply the statutory remedy to the evil or mischief which it is the intention of the statute to meet." Per Lord Shand, Glasgow v. Hillhead (1885), 12 Rettie (Sc.) 872.

(c) Amicable v. Bolland (1830), 4 Bligh N. S. 194, 2 Dow & Cl. 1. (d) Approved by Lord Bramwell, in Mogul Co. v. McGregor (1892), A. C. 45. See Cleaver v. Mutual Reserve Fund (1892), 1 Q. B. 147.