quently come before the Courts, and, although each case of course depends on the wording of the particular Act, there is sufficient similarity between them to warrant the deduction of some general principles applicable to all such Acts; and, indeed, these principles have been settled by numerous decisions, many of them in the House of Lords, and may be stated as follows: The surface owner has by common law the right to have proper support for his surface so as to prevent its subsidence. If the mineral owner contests this right, the burden is on him to displace it. The right can only be displaced by express words or by necessary implication from the words used in the Act. Words, however large, applicable to the right of working and privileges connected with it and compensation for the exercise of such right and privileges are not enough, at any rate, if the words used are fairly applicable to the ordinary course of working and nothing more: see Lord Selborne's judgment in Love v. Bell (1884), 9 App. Cas. 286, at pp. 290, 291; 53 L. J. Q. B. 257, at p. 258. The absence of any provision for compensation is strong evidence in favour of the continuance of the right to support. So also is the presence of a compensation clause limited to injury arising from ordinary surface user as distinct from injury by subsidence or obviously inadequate to any greater injury; but a compensation clause providing expressly for injury to buildings or other injury resulting from subsidence is in favour of the destruction of the right. But this is a question of construction, for, as stated by Lord Davey in New Sharlston Collieries Co. v. Earl of Westmorland (1900), [1904] 2 Ch. 443, at p. 447; 73 L. J. Ch. 338, n. (5), at p. 341, the existence of an express provision for compensation for letting down the surface does not necessarily authorize the mine-owner to let it down. The question is one of construction in each case, and the same principles apply whether the document be a grant, lease, or Inclosure Act. The latter is nothing more than a statutory agreement between the parties, or, as Lord Selborne puts it, it is a case of mutual considerations resulting in the apportionment of land to which the parties may be taken to have agreed, or have had determined for them by the authority which made the award.' It is important to ascertain whether the mineral owner's rights are merely reserved or whether they are newly created by grant. In the latter case there is more ground than in the former for the argument that the ordinary common law right of support has been displaced. (Duke of Buccleuch v. Wakefield (1870), L. R. 4 H. L. 377; 39 App. Cas. 286, at L. J. Ch. 441; Love v. Bell (1884), 9 pp. 291, 292; 53 L. J. Q. B. 257, 260.) the lord's rights to be enjoyed in as full and ample a manner as if the Act had not been passed is not equivalent to a reservation free from the common law liability to leave support merely because the only liability before the Act was to leave sufficient pasturage, but is to be read as subject to the ordinary maxim, Sic utere tuo ut alienum non lædas'; so that, mutatis mutandis, it becomes subject to the substituted ownership right of support in lieu of the extinguished commoners' right of pasturage; and accordingly, if there were no such commonable rights, no substituted right of support can be maintained: Gill v. Dickinson (1880), 5 Q. B. D. 159; 49 L. J. Q. B. 262."-Bishop Auckland Industrial Cooperative Society, Ltd. v. Butterknowle Colliery Co., Ltd., [1904] 2 Ch. 419, at pp. 424-426; 73 L. J. Ch. 335, at p. 342, Farwell, J. Statutes striking at Privileges. "It seems to me that a more sound and reasonable interpretation of such an Act of Parliament [Bankruptcy Act, 1861 (24 & 25 Vict. c. 134)] would be, that the privilege which had been established by common law, and recognized on many occasions by Act of Parliament, should be held to be a continuous privilege not abrogated or struck at unless by express words in the statute."-Duke of Newcastle v. Morris (1870), L. R. 4 H. L. 661, at p. 668, Lord Hatherley, L. C. Statutes imposing Charge on an Individual. "I desire to say that when an Act of this description is obtained by a company, incorporated for purposes of profit, to confer upon them rights and powers which they would not have at common law, the provisions of such a statute must be somewhat jealously scrutinized, and I think that they ought not to be held to possess any right unless it be given in plain terms or arises as a necessary inference from the language used."-Scottish Drainage and Improvement Co. v. Campbell (1889), 14 App. Cas. 139, at p. 142, Lord Herschell. "I have always understood, with reference to private Acts, as contradistinguished from public Acts of Parliament, that if a charge is imposed upon the person of an individual, it must be so imposed in clear and express terms, and not left to implication.' Ibid., at p. 149, Lord Fitzgerald. Statutes in reference to Judicial Acts. "When a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application."-Macdougall v. Paterson (1851), 11 C. B. 755, at p. 773; 21 L. J. C. P. 27, at p. 29, Jervis, C. J., delivering the judgment of the Court (Jervis, C. J., Maule, J., Williams, J., and Talfourd, J.). The jurisdiction of Superior Courts is not taken away except by express words or necessary implication. "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. "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. "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. Interpretation of statutory rules, regulations, by-laws and provision as to exercise of powers and duties. "I am of opinion that the rules and orders [made pursuant to sect. 19 of the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85)] have statutory authority, for not only is the authority given to certain persons by statute to draw them up, but it is provided that they shall be laid before Parliament for a certain time, and if not objected to they are then to be binding. Wherever that provision is introduced into an Act of Parliament it seems to me that the rules and orders, if not objected to by Parliament, B. Ꭰ Ꭰ become part of the statute. It was urged that though the rules and orders might be part of the statute, the forms were not. In my opinion the forms are part of the rules and orders, they are referred to in them, and the mere fact of their being put into a schedule, instead of being embodied in the rules, is a mere question of drafting. The forms, therefore, are part of the rules and orders which have statutory authority."-Dale's Case (1881), 6 Q. B. D. 376, at pp. 455, 456; 50 L. J. Q. B. 234, at pp. 263, 264, Brett, L. J. Interpretation Act, 1889 (52 & 53 Vict. c. 63). Sect. 31. "Where any Act, whether passed before or after the commencement of this Act [1st January, 1890], confers power to make, grant, or issue any instrument, that is to say, any Order in Council, order, warrant, scheme, letters patent, rules, regulations, or by-laws, expressions used in the instrument, if it is made after the commencement of this Act [1st January, 1890], shall, unless the contrary intention appears, have the same respective meanings as in the Act conferring the power." Sect. 32.-" (1.) Where an Act passed after the commencement of this Act [1st January, 1890] confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. 66 (2.) Where an Act passed after the commencement of this Act [1st January, 1890] confers a power or imposes a duty on the holder of an office, as such, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed by the holder for the time being of the office. "(3.) Where an Act passed after the commencement of this Act [1st January, 1890] confers a power to make any rules, regulations, or by-laws, the power shall, unless the contrary intention appears, be construed as including a power, exerciseable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend or vary the rules, regulations, or by-laws." Ministerial Acts and Judicial Discretion. "Now, it appears to me that it is a true proposition to say that when a public duty is imposed by Act of Parliament upon a body of persons, which duty consists in the exercise of a discretion, it cannot be said that the exercise of that discretion is a merely ministerial act. If what the defendants did cannot be considered to have been merely ministerial, then, I think, for the purposes of the question, whether they are protected from an action, it must be considered as judicial."-Partridge v. General Council of Medical Education and Registration of the United Kingdom (1890), 25 Q. B. D. 90, at p. 96; 59 L. J. Q. B. 475, at p. 478, Lord Esher, M. R. Statutory Rules, Orders and Forms. The effect of a statutory rule or order, if validly made under the statute, is that every person must conform himself to its provisions. It is open to a person to canvass a statutory rule or order and determine whether or not it is within the power of those who made it. No person can canvass in that way the provisions of a statute. Where there is any conflict between a statutory rule or order and a provision of the statute under which the rule or, order is made, it should be determined which is the leading and which the subordinate provision and which must give way to the other. For all purposes of interpretation or obligation or otherwise, statutory rules, orders and forms, if validly made under a statute, are to be treated exactly as if they were in the statute itself under which the rules, orders and forms are made. "The effect of an enactment is that it binds all subjects who are affected by it. They are bound to conform themselves to the provisions of the law so made. The effect of a statutory rule, if validly made, is precisely the same that every person must conform himself to its provisions, and, if in each case a penalty be imposed, any person who does not comply with the provisions, whether of the enactment or the rule, becomes equally subject to the penalty. But there is this difference between a rule and an enactment; that whereas, apart from such provision as we are considering, you may canvass a rule and determine whether or not it was within the power of those who made it, you cannot canvass in that way the provisions of an Act of Parliament. Therefore |