24 Q. B. D. 381, at p. 389; 59 L. J. Q. B. 183, at p. 186, Lord Esher, M. R.

"I think that counsel for the appellants was perhaps right in saying that sect. 14 [of the London Building Act, 1894 (57 & 58 Vict. c. ccxiii.)] was probably intended to cover such a case as the present, and probably was also intended to cover the case, not merely of the erection of new buildings, but of an extension of old buildings, although it has not been necessary to argue that question to-day. But the mere fact that it may have been better to extend the section to those cases, or that one can apparently gather that such an intention was probable, is not enough to justify us in putting a construction upon the section which would necessitate reading into it the words which the appellants' counsel has invited us to read in. It is clear to my mind that we should, as the Court of Queen's Bench said in Underhill v. Langridge ((1859), 29 L. J. M. C. 65, at p. 66), 'be taking upon ourselves the office of the legislature.' We should be doing that which the Court, in In re Sneezum, Ex parte Davis ((1876), 3 Ch. D. 463; 45 L. J. Bank. 137), declined to do with respect to a provision which, it was suggested, ought to be read into sect. 23 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71). James, L. J., said (at p. 472; L. J. at p. 138) : "That is a provision which might perhaps be very properly made by the legislature; but, to my mind, to insert it in this way by implication would not be to construe the Act of Parliament, but to alter it; it might be to improve it, according to the view which some persons take of the matter, but it would certainly be altering the Act of Parliament, and enlarging still further the provisions which the legislature has thought fit to make with respect to such contracts.' I am the more strongly driven to this conclusion because the proceeding here is penal, involving penal consequences, and without making the alteration in sect. 14 which we are asked to make, it could not be prosecuted at all. I have certainly always understood the rule to be that where there is an enactment which may entail penal circumstances, you ought not to do violence to its language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it in express language."-London County Council v. Aylesbury Dairy Co., [1898] 1 Q. B. 106, at pp. 108, 109; 67 L. J. Q. B. 24, at p. 26, Wright, J.

66

Implied Words.

Every day I see the necessity of not importing into statutes words which are not to be found there."-King v. Burrell (1840), 12 A. & E. 460, at p. 468, Patteson, J.

"It is not easy to conceive that the framer of that Act [Lord Brougham's Act, 1850 (13 & 14 Vict. c. 21), s. 4], when he used the word 'expressly,' meant to suggest that what is necessarily or properly implied by language is not expressed by such language. It is quite clear that whatever the language used necessarily and naturally implies is expressed thereby."-Chorlton v. Lings (1868), L. R. 4 C. P. 374, at p. 387; 38 L. J. C. P. 25, at p. 31, Willes, J.

"That [the implication suggested by counsel] is a provision which might perhaps be very properly made by the legislature; but, to my mind, to insert it in this way by implication would not be to construe the Act of Parliament, but to alter it, or might be to improve it, according to the view which some persons take of the matter, but it would certainly be altering the Act of Parliament, and enlarging still further the provisions which the legislature has thought fit to make with respect to such contracts."-In re Sneezum, Ex parte Davis (1876), L. R. 3 Ch. D. 463, at p. 472; 45 L. J. Bank. 137, at p. 138, James, L. J.

"Powers-I do not say in the same terms precisely, but to the same effect-are by implication conferred upon the Board [of Works] such as were in express terms conferred by the Act of 1877. It is a very lamentable way of legislating, that one should be driven to get at the meaning of these Acts by removing difficulties (as far as can be done) by construction, rather than that the intention of the legislature should be clearly expressed upon the face of the Act."-Wigram v. Fryer (1887), 36 Ch. D. 87, at pp. 98, 99; 56 L. J. Ch. 1098, at p. 1103, North, J.

(See also post, p. 471, " Repeal by Implication.")

SECTION VI.

EFFECTS, CONSEQUENCES AND RESULTS OF INTERPRETATION OF STATUTES.

The common law gives place to a statute where they plainly differ.

"It is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, doth not take away the common law."-2 Inst. 200.

"Statutes are not presumed to make any alteration in the common law, further or otherwise than the Act does expressly declare."-Arthur v. Bokenham (1708), 11 Mod. 150, Trevor, C. J.

"It is a sound rule to construe a statute in conformity with the common law, rather than against it, except where or so far as the statute is plainly intended to alter the course of the common law."-The Queen v. Morris (1867), L. R. 1 C. C. R. 90, at p. 95; 36 L. J. M. C. 84, at p. 87, Byles, J.

"It is right to bear in mind that, as Lord Coke says, 'It is a maxim in the common law that a statute made in the affirmative, without any negative expressed or implied, doth not take away the

common law,' 2 Inst. 200. Affirmative words may no doubt be used so as to imply a negative, see Plowden, Com. 113, but I take it the general principle is that thus laid down by Cresswell, J., in The Eastern Archipelago Co. v. Reg. (1853), 2 E. & B. 857, at p. 888; 23 L. J. Q. B. 82, at p. 96, that to make the words. giving an express liberty or right have the effect of controlling or limiting that which would otherwise exist, they must be very plain."-Riche v. Ashbury Railway Carriage Co. (1874), L. R. 9 Ex. 224, at p. 265; 43 L. J. Ex. 177, at p. 205, Blackburn, J. (Brett and Grove, JJ., concurring) (cited and applied by Lord Hatherley in the same case on appeal (1875), L. R. 7 H. L. 653, at pp. 685, 686; 44 L. J. Ex. 185, at p. 205).

"Blackstone, the highest constitutional and legal authority with reference to the law of England, when treating of statute law, states [vol. i. p. 89], Where the common law and a statute differ, the common law gives place to the statute.""-River Wear Commissioners v. Adamson (1877), 2 App. Cas. 743, at p. 775; 47 L. J. Q. B. 193, at p. 208, Lord Gordon.

"The Acts in question [Merchant Shipping Acts] seem to me to be valuable ones, and the fact that they interfere with a plaintiff's common law rights is no reason why they should be construed differently from any other Acts of Parliament."-The Warkworth (1883), 9 P. D. 20, at p. 21; 53 L. J. P. 4, at p. 5, Butt, J.

"Where an affirmative statute is open to two constructions, that construction ought to be preferred which is consonant with the common law."-Rex v. Salisbury (Bishop of), [1901] 1 Q. B. 573, at p. 577; 70 L. J. Q. B. 423, at p. 427, Wills, J.

"A general Act must not be read as repealing the common law relating to a special and particular matter unless there is something in the general Act to indicate an intention to deal with that special and particular matter."-Ibid. at p. 579; L. J. at p. 429, Channell, J.

Effect on Jurisdiction.

The jurisdiction of the Supreme Courts cannot be taken away except by express language or necessary implication.

"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."-Balfour v. Malcolm (1842), 8 Cl. & F. 485, at p. 500, Lord Campbell.

"The general rule undoubtedly is, that the jurisdiction of Superior Courts is not taken away except by express words or necessary implication."-Albon v. Pyke (1842), 4 M. & G. 421, at p. 424, Tindal, C. J.

"No rule is better understood 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."- Oram v. Brearey (1877), 2 Ex. D. 346, at p. 348; 46 L. J. Ex. 481, at p. 482, Pollock, B.

Effect on Customs.

Customs, or rights of a similar description, are not to be taken away by inference or without distinct words.

"There is no doubt that, as a general rule, customs or rights of a similar description are not to be taken away by inference or without distinct words."-Green v. The Queen (1876), 1 App. Cas. 513, at p. 535, Lord Cairns, L. C.

Effect on Pre-existing Rights.

The giving of a new right does not of necessity destroy a previously existing right.

Statutes do not take away existing private rights except by express words, or by plain implication, or necessary intendment.

"I do not dispute the general proposition that an affirmative statute giving a new right does not of itself and of necessity destroy a previously existing right. But it has that effect if the apparent intention of the legislature is that the two rights should not exist together."-O'Flaherty v. M'Dowell (1857), 6 H. L. Cas. 142, at p. 157, Lord Cranworth, L. C.

"When a statute is passed creating new rights, it ought, if possible, to be so construed as not to extinguish existing rights.' Watton v. Wutton (1866), L. R. 1 P. & M. 227, at p. 228; 35 L. J. Mat. Cas. 95, at p. 95, Sir J. P. Wilde.

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"Now, we agree with the principle of 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."Randolph v. Milman (1868), L. R. 4 C. P. 107, at p. 113; 38 L. J. C. P. 81, at pp. 83, 84, Kelly, C. B., delivering the judgment of