deal is not an act of public and general policy, but is rather in the nature of a private legislative bargain with a body of undertakers as to the manner in which they will keep up certain public works."-Atkinson v. Newcastle Waterworks Co. (1877), 2 Ex. D. 441, at p. 448; 46 L. J. Ex. 775, at pp. 779, 780, Lord Cairns, L. C.

"It is unnecessary to determine here whether Couch v. Steel (1853), 3 E. & B. 402; 23 L. J. Q. B. 121, was properly decided upon the particular Act under which the action in that case was brought; I am, however, bound to say that I entertain the strongest doubt whether the broad rule there enunciated can be maintainedthe rule, that is to say-that where a new duty is created by statute, and a penalty is imposed for its breach, which penalty is to go to the person injured by such breach, the penalty, however small and inadequate a compensation it may be, is in such a case to be regarded as indicating an intention on the part of the legislature that there should be no action by such person for damages, but that where a similar duty is created, and a similar penalty imposed which is not to go to the person injured, then the intention is that he is to have a right of action. I do not think that that proposition can be supported."-Ibid. at p. 449; L. J. at p. 780, Brett, L. J. (Lord Herschell shared in these doubts. See Cowley v. Newmarket Local Board, [1892] A. C. 345, at p. 352; 62 L. J. Q. B. 65, at p. 67.)

"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 of Sheffield (1883), 12 Q. B. D. 142, at p. 145; 53 L. J. M. C. 1, at p. 3, Brett, M. R.

"The case has been argued with great care, and various authorities on the subject have been cited. The general rule to be deduced from them seems in substance to be that the provisions and object of the particular enactment must be looked at in order to discover whether it was intended to confer a general right which might be the subject of an action, or to create a duty sanctioned only by a particular penalty, in which case the only remedy for breach of the duty would be by proceedings for the penalty."Vallance v. Falle (1884), 13 Q. B. D. 109, at p. 110; 53 L. J. Q. B. 459, at p. 461, Stephen, J.

B.

G G

"I agree with what was said by Lord Tenterden in Doe v. Bridges [ (1831), 1 B. & Ad. 847, at p. 859, see supra, p. 447]. He appears to me to have stated that as being a general rule, not as one which is absolutely rigid and may not admit of special exceptions; and notwithstanding criticism that has been applied to what he said, I think it is a good working rule for getting at the meaning of the legislature in the cases to which it applies."-Lamplugh v. Norton (1889), 22 Q. B. D. 452, at p. 456; 58 L. J. Q. B. 279, at p. 281, Lord Esher, M. R.

"The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute, is one which is very familiar, and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe d. The Bishop of Rochester v. Bridges [(1831), 1 B. & Ad. 847, at p. 859, see supra, p. 447]. He says: 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.'"-Pasmore v. Oswaldtwistle Urban Council, [1898] A. C. 387, at p. 394; 67 L. J. Q. B. 635, at p. 637, Earl of Halsbury, L. C.

"The law is stated nowhere more clearly or, I think, more accurately, than by Lord Tenterden in the passage cited by my noble and learned friend on the Woolsack (Earl of Halsbury, L. C.). Whether the general rule is to prevail, or an exception to the general rule is to be admitted, must depend on the scope and language of the Act which creates the obligation, and on considerations of policy and convenience."—Ibid., at pp. 397, 398; L. J. at p. 639, Lord Macnaghten.

"I may add to that that I do not myself think that the present case is one coming within the rule, of which Pasmore v. Oswaldtwistle Urban Council, [1898] A. C. 387, at p. 394; 67 L. J. Q. B. 635, at p. 637, was an illustration, namely, that where an Act creates an obligation and enforces the performance in a specific manner, as a general rule the performance cannot be enforced in any other manner. I do not think that that rule applies where there are two different rights created by the statute, one a right to have compensation, and another a different right to have adjudication upon the subject of that compensation."-Rex v. Stepney Corporation, [1902] 1 K. B. 317, at p. 325; 71 L. J. K. B. 238, at p. 244, Channell, J.

(See also ante, p. 429, "New Right, Obligation, Duty, or Liability and its Remedy," and ante, p. 431, "New Offence and its Remedy.")

Cumulative Statutes.

Accumulative Penalties.

"The rule touching the repeal of laws is leges posteriores priores contrarias abrogant; but subsequent Acts of Parliament in the affirmative giving new penalties and instituting new methods of proceeding, do not repeal former methods and penalties of proceeding ordained by preceding Acts of Parliament without negative words. both stand together."-Middleton v. Crofts (1736), 2 Atk. 650, at p. 675, Lord Hardwicke, L. C.

"Now, it is a general rule that subsequent statutes which add accumulative penalties do not repeal former statutes [6 Mod. 140; 11 Rep. 63 b.]."—Rex v. Jackson (1775), Cowp. 297, at p. 298, Lord Mansfield, C. J.

"I have looked into the case of (1736) Middleton v. Croft as it is reported in Cas. temp. Hardw. 326; it was a case of prohibition, argued by eminent civilians, and involved an elaborate discussion upon the authority of the canons. Lord Hardwicke there says, 'Subsequent Acts of Parliament in the affirmative only, although giving new penalties, are never taken to be a repeal of former Acts, unless there be negative words or a plain contrariety between the two Acts, so as there is a plain indication in the latter of an intention to repeal the former.'"-Dakins v. Seaman (1842), 9 M. & W. 777, at pp. 788, 789, Lord Abinger, C. B.

66

Now, the distinction between a statute creating a new offence with a particular penalty, and a statute enlarging the ambit of an existing offence by including new acts within it with a particular penalty, is well settled. In the former case the new offence is punishable by the new penalty only; in the latter it is punishable also by all such penalties as were applicable before the Act to the offence in which it is included. The rule was recognized by Lord Mansfield in Rex v. Wright (1758), 1 Burr. 543, and in a note to 2 Hawkins's Pleas of the Crown (1824 ed.), p. 290, is thus stated: 'The true rule seems to be this: where the offence was punishable before the statute prescribing a particular method of punishing it, then such particular remedy is cumulative, and does not take away the former remedy; but where the statute only enacts "that

the doing an act, not punishable before, shall for the future be punishable in such and such a particular manner," there it is necessary to pursue such particular method, and not the common law method of indictment.' The same principles apply equally whether the offence is regarded as an invasion of public rights calling for criminal, or of private rights, calling for civil proceedings; see Shepherd v. Hills (1855), 11 Ex. 55; 25 L. J. Ex. 6."-Lowe v. Dorling & Son, [1906] 2 K. B. 772, at p. 784; 75 L. J. K. B. 1019, at p. 1025, Farwell, L. J.

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

Accumulative Damages.

"It has been held in many instances that where a statute gives accumulative damages to the party grieved, it is not a penal action, for in penal actions no costs are allowed, but if the action be brought by the party grieved he is entitled to costs."— Woodgate v. Knatchbull (1787), 2 T. R. 148, at p. 154, Ashhurst, J.

(See also ante, p. 429, "New Right, Obligation, Duty or Liability and its Remedy.")

Same Offence with different Punishments.

Where the same offence is re-enacted with a different punishment

the prior enactment is repealed.

"If a crime be created by statute, with a given penalty, and be afterwards repeated in another statute with a lesser penalty attached to it, I cannot say that the party ought to be held liable to both. There may, no doubt, be two remedies for the same act, but they must be of a different nature. The new Act, then, would be in effect a repeal of the former penalty.”—Henderson v. Sherborne (1837), 2 M. & W. 236, at p. 239, Lord Abinger, C. B.

"My judgment (in Henderson v. Sherborne, supra) was founded on the principle, that where the same offence is re-enacted with a different punishment, it repeals the former law.”—Att.-Gen. v. Lockwood (1842), 9 M. & W. 378, at p. 391, Lord Abinger, C. B. (And see Robinson v. Emerson (1866), 4 H. & C. 352, at p 355, Martin, B.)

"Lord Campbell [in Michell v. Brown (1858), 1 Ell. & Ell. 267, at p. 274; 28 L. J. M. C. 53, at p. 55], delivering the judgment of the Court, said, 'If a later statute again describes an offence

created by a former statute, and affixes a different punishment to it, varying the procedure, &c., we think that the prosecutor must proceed for the offence under the later statute. If the later statute expressly altered the quality of the offence, as by making it a misdemeanour instead of a felony, or a felony instead of a misdemeanour, the offence could not be proceeded for under the earlier statute; and the same consequence seems to follow from altering the procedure and the punishment. The later enactment. operates by way of substitution and not cumulatively, giving an option to the prosecutor or the magistrate.' That, in principle, is very much in point with the present case."-Whitehead v. Smithers (1877), 2 C. P. D. 553, at p. 557; 46 L. J. M. C. 234, at p. 236, Lord Coleridge, C. J.

(See also Fortescue v. [1891] 2 Q. B. 170, at

Vestry of St. Matthew, Bethnal Green, pp. 177, 178; 60 L. J. M. C. 172, at pp. 177, 178, where Charles, J., cited the above quotation from Michell v. Brown.)

Interpretation Act, 1889 [52 & 53 Vict. c. 63].

Sect. 33. "Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law, whether any such Act was passed before or after the commencement of this Act [1st January, 1899], the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence."

Avoiding Statutes.

Statutes, the effect of which is to cut down, abridge, restrain or avoid any written instrument, are to have a limited interpretation.

"It is a general rule, in the interpretation of Acts of Parliament, that an enactment, the effect of which is to cut down, abridge or restrain any written instrument, shall have a limited construction." -Morris v. Mellin (1827), 6 B. & C. 446, at p. 449, Lord Tenterden.

"It is a general rule that, 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."-Ibid. at p. 450, Bayley, J.