New Right, Obligation, Duty, or Liability, and its Remedy.

If a statute creates a new right, obligation, duty or liability and a new remedy, the new remedy must as a general rule be

exclusively followed.

If a right, obligation, duty or liability is created by statute, but no mode of enforcing its performance is ordained, the common law may, in general, find a mode suited to the particular nature of the case.

If there is a liability existing at common law, and which is only re-enacted by a statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common law remedy, the plaintiff has his election of proceeding either under the statute or at common law.

"Where an Act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. If an obligation is created, but no means of enforcing its performance is ordained, the common law may, in general, find a mode suited to the particular nature of the case."-Doe d. Bishop of Rochester v. Bridges (1831), 1 B. & Ad. 847, at p. 859, Tenterden, C. J. (cited by Earl of Halsbury, L. C., in Pasmore v. Oswaldtwistle Urban District Council, [1898] A. C. 387, at p. 394; 67 L. J. Q. B. 635, at p. 637; and by Joyce, J., in Devonport Corporation v. Tozer, [1902] 2 Ch. 182, at p. 193; 71 L. J. Ch. 754, at p. 759).

"It was a rule of law that an action will not lie for the infringement of a right created by statute, where another specific remedy for infringement is provided by the same statute."-Stevens v. Jeacocke (1848), 11 Q. B. 731, at p. 741; 17 L. J. Q. B. 163, at p. 165, Lord Denman, C. J.

"Where new rights are given with specific remedies, the remedy is confined to those specifically given."-Berkeley v. Elderkin (1853), 1 E. & B. 805, at p. 808; 22 L. J. Q. B. 281, at p. 282, Lord Campbell, C. J.

"Where an Act of Parliament creates a right and points out a remedy, no other remedy exists."-St. Pancras Vestry v. Batterbury (1857), 26 L. J. C. P. 243, at p. 246, Williams, J.

"The general rule, where there is a new obligation made by an Act of Parliament and a new remedy, would apply."-Blackburn

Corporation v. Parkinson (1858), 28 L. J. M. C. 7, at p. 10, Hill, J.

"There are three classes of cases in which a liability may be established founded upon a statute. One is where there was a liability existing at common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common-law remedy, and the party suing has his election to pursue either that or the statutory remedy. The second class of cases is where the statute gives the right to sue merely, but provides no particular form of remedy; there the party can only proceed by action at common law. But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it."— Wolverhampton New Waterworks Co. v. Hawkesford (1859), 6 C. B. N. S. 336, at p. 356; 28 L. J. C. P. 242, at p. 246, Willes, J. (cited by Farwell, J., in Stevens v. Chown, [1901] 1 Ch. 894, at p. 903; 70 L. J. Ch. 571, at p. 575; by Joyce, J., in Devonport Corporation v. Tozer, [1902] 2 Ch. 182, at pp. 193, 194; 71 L. J. Ch. 754, at p. 759; and by Buckley, J., in Att.-Gen. v. Ashborne Recreation Ground Co., [1903] 1 Ch. 101, at p. 106; 72 L. J. Ch. 67, at p. 69).

"It is a settled rule that if a statute creates a new right and gives a particular remedy for enforcing it, there is no other remedy.”—West v. Downman (1880), 14 Ch. D. 111, at p. 120, Jessel, M. R.

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Where, as here, there is an Act of Parliament which has imposed a new liability, and given particular means of enforcing such new liability, such mode of procedure is the only one to be followed and used for that purpose."― Wake v. Mayor, &c. of Sheffield (1883), 12 Q. B. D. 142, at p. 145; 53 L. J. M. C. 1, at p. 3, Brett, M. R.

"The ordinary rule of construction therefore applies in this case, that where the legislature has passed a new statute giving a new remedy, that remedy is the only one which can be pursued." -The Queen v. County Court Judge of Essex (1887), 18 Q. B. D. 704, at p. 707; 56 L. J. Q. B. 315, at p. 318, Lord Esher, M. R.

"Upon consideration and upon the authority of Berkeley v. Elderkin (1853), 1 E. & B. 805; 22 L. J. Q. B. 281, I am clearly of opinion that that section [sect. 17 of 1 & 2 Vict. c. 110

(the Judgment Act, 1838)] has no application to judgments recovered in the statutory County Courts established under 9 & 10 Vict. c. 95 (the County Courts Act, 1846). That Act gave a new jurisdiction, a new procedure, new forms and new remedies, and the procedure, forms and remedies there prescribed must, where they have not been altered by subsequent legislation, be strictly complied with. I entirely concur in the language of Lord Campbell and of Erle, J., in the case cited."-Ibid., at p. 708; L. J. at p. 320, Lopes, L. J.

"In West v. Downman (188)), 14 Ch. D. 111, it was pointed out that, before the Public Health Act, 1848 (11 & 12 Vict. c. 63), the local board could not recover from the owners of property the expenses of work done, but that that Act conferred the right to recover such expenses, and imposed a liability on the adjoining owners. That was a new liability not previously known to the law, and it is a settled rule that in such a case the remedy given by the statute is the only remedy for enforcing the right.”—In re Willesden Local Board and Wright, [1896] 2 Q. B. 412, at p. 414; 65 L. J. Q. B. 567, at p. 569, Lord Esher, M. R.

"It has been laid down for many years that, if a duty is imposed by statute which, but for the statute, would not exist, and a remedy for default or breach of that duty is provided by the statute that creates the duty, that is the only remedy."-Robinson v. Workington Corporation, [1897] 1 Q. B. 619, at p. 621; 66 L. J. Q. B. 388, at p. 390, Lord Esher, M. R. See Peebles v. Oswaldtwistle Urban District, [1897] 1 Q. B. 625, at pp. 627, 629 ; 66 L. J. Q. B. 392, at p. 394, where Lord Esher, M. R., and Lopes, L. J., state the same rule in different words.

New Offence and its Remedy.

Where a statute creates a new offence and defines particular remedies, primâ facie a person proceeding under the statute can avail himself of the remedies so defined, and no other, except the ancillary remedy by injunction to protect the right.

"It was argued that where a new offence and a penalty for it had been created by statute, a person proceeding under the statute was confined to the recovery of the penalty, and that nothing else

could be asked for. That is true as a general rule of law, but there are two exceptions. The first of the exceptions is the ancillary remedy in equity by injunction to protect a right. That is a mode of preventing that being done which, if done, would be an offence. Wherever an act is illegal and is threatened, the Court will interfere and prevent the act being done-and as regards the mode of granting an injunction, the Court will grant it either when the illegal act is threatened but has not been actually done, or when it has been done and seemingly is intended to be repeated.

"The second exception is that created by the Judicature Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. (8), which enables the Court to grant an injunction in all cases in which it shall appear to the Court to be just or convenient. This section may be said. to be a general supplement to all Acts of Parliament."-Cooper v. Whittingham (1880), 15 Ch. D. 501, at pp. 506, 507; 49 L. J. Ch. 752, at p. 755, Jessel, M. R. (cited and commented on by Joyce, J., in Devonport Corporation v. Tozer, [1902] 2 Ch. 182, at pp. 194, 195; 71 L. J. Ch. 754, at p. 760).

"The ground is said to be that where a statute creates an offence and defines particular remedies against the person committing that offence, primâ facie the party injured can avail himself of the remedies so defined and no other. I see no reason to call that rule in question. But it must be examined with reference to the terms in which the statute deals with the subject.”—Brain v. Thomas (1881), 50 L. J. Q. B. 662, at p. 663, Lord Selborne, L. C. Everything that the statute [the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85)] requires must be done; but when it refers generally to powers to enforce obedience, and does not prescribe any procedure, those powers generally referred to would be the powers of the Court in which the proceedings are deemed to be taken."-Green v. Lord Penzance (1881), 6 App. Cas. 657, at p. 675; 51 L. J. Q. B. 25, at p. 43, Lord Selborne, L. C.

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"If you find in an Act of Parliament the power to take the remedy in divers Courts, that remedy will, in each Court, be subject to the lex fori of that Court, and the lex fori includes the limitation of actions, which goes to the remedy, and not to the right."Blackburn Corporation v. Sanderson, [1902] 1 K. B. 794, at p. 807; 71 L. J. K. B. 590, at p. 594, Vaughan Williams, L. J.

"It cannot be disputed, after Cooper v. Whittingham (1880), 15 Ch. D. 501; 49 L. J. Ch. 752, that if a plaintiff is suing in respect of a right personal to himself he may be protected by

injunction."-Att.-Gen. v. Ashborne Recreation Ground Co., [1903] 1 Ch. 101, at p. 107; 72 L. J. Ch. 67, at pp. 69, 70, Buckley, J. (See also post, p. 447, "Mode of Enforcing Statutes," and p. 451, “Cumulative Statutes.")

Prohibitory Statutes.

Prohibitory statutes prevent you from doing something which formerly it was lawful for you to do. And whenever you can find that anything done that is substantially that which is prohibited, I think it is perfectly open to the Court to say that that is void, not because it comes within the spirit of the statute, or tends to effect the object which the statute meant to prohibit, but because, by reason of the true construction of the statute, it is the thing, or one of the things, actually prohibited."-Philpott v. St. George's Hospital (1857), 6 H. L. Cas. 338, at p. 349; 27 L. J. Ch. 70, at p. 72, Lord Chelmsford, L. C.

"The argument for the appellants is, that the covenantor here has tried indirectly to do by a circuitous mode that which he could not do directly, because the statute prohibited it, and that the principle laid down in the two cases of Doe d. Mitchinson v. Carter [ (1798), 8 T. R. 57, 300] is applicable to the present case. That principle was approved of in Croft v. Lumley [(1858), 6 H. L. Cas. 672; 27 L. J. Q. B. 321], though there was a difference of opinion as to its application in that case. The principle, as I understand it, is that whenever it can be shown that the acts of the parties are adopted for the purpose of effecting a thing which is prohibited, and the thing prohibited is in consequence effected, the parties have done that which they may have purposely caused, though they may have done it indirectly and endeavoured to conceal that they have done so. This, I think, is a sound principle, but it is essential for its application, that what is thus effected should be the thing prohibited."-Jeffries v. Alexander (1860), 8 H. L. Cas. 594, at p. 623; 31 L. J. Ch. 9, at p. 14, Blackburn, J.

Legislative Expositions.

"Reading these two statutes [Local Government Act, 1894 (56 & 57 Vict. c. 73), and Local Government (Joint Committees) Act, 1897 (60 & 61 Vict. c. 40)] together, I am of opinion that the

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