The Queen v. Oastler (1880), 50 L. J. M. C. 4, at p. 6; 43 L. T. 404, Brett, L. J.

66

Repeal by implication is never to be favoured; it is no doubt the necessary consequence of inconsistent legislation whenever it occurs, but which must not be imputed to the legislature unless absolutely necessary."-Dobbs v. Grand Junction Waterworks Co. (1882), 9 Q. B. D. 151, at p. 158, Field and Bowen, JJ.

We ought not to hold a sufficient Act repealed, not expressly as it might have been, but by implication, without some strong reason."-Great Western Rail. Co. v. Swindon and Cheltenham Rail. Co. (1884), 9 App. Cas. 787, at p. 809; 53 L. J. Ch. 1075, at p. 1087, Lord Bramwell.

"When the repeal is not express, the burden is on those who assert that there is an implied repeal to show that the two statutes cannot stand consistently the one with the other."-Lybbe v. Hart (1885), 29 Ch. D. 8, at p. 15, Chitty, J.

"Now it is clear that the provisions of an earlier Act may be revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to that particular point, or from implication or inference from the language used."-In re Williams (1887), 36 Ch. D. 573, at p. 578; 57 L. J. Ch. 264, at p. 266, North, J.

"But it is a maxim of construction that where the provisions in two Acts of Parliament are clearly inconsistent, then there is of necessity an implied repeal of the inconsistent provisions of the earlier Act."-The Queen v. Commissioners of Inland Revenue (1888), 21 Q. B. D. 569, at p. 577; 57 L. J. M. C. 92, at p. 95, Field, J. "Now a repeal by implication is only effected when the provisions of a later enactment are so inconsistent with, or repugnant to, the provisions of an earlier one, that the two cannot stand together, in which case the maxim, Leges posteriores priores contrarias abrogant,' applies. Unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts unless there is a necessary inconsistency in the two Acts standing together. Thorpe v. Adams [ (1871), L. R. 6 C. P. 125; 40 L. J. M. C. 52]. Lord Coke, in Gregory's Case (1596), 3 Coke, p. 295, Part VI. 19 b, lays it down that a later statute in the affirmative shall not take away a former Act, and eo potior, if the former be particular and the latter be general.' And Lord Hardwicke, in the case of Middleton v. Crofts [(1736), 2 Atk.

650, at p. 675], is to the same effect."-Kutner v. Phillips, [1891] 2 Q. B. 267, at pp. 271, 272; 60 L. J. Q. B. 505, at p. 507, A. L. Smith, J.

"The test of whether there has been a repeal by implication by subsequent legislation is this: Are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together? In which cases Leges posteriores contrarias abrogant."-Churchwardens, &c. of West Ham v. Fourth City Mutual Building Society, [1892] 1 Q. B. 654, at p. 658; 61 L. J. M. C. 128, at p. 130, A. L. Smith, J.

"Where Parliament passes a later Act without reference to an earlier Act, and that earlier Act is one which has been in force for a long time, and is, therefore, well known, it seems reasonable that we should try to construe the two consistently if it is possible to do so."—Hill v. Pannifer, [1904] 1 K. B. 811, at p. 818; 73 L. J. K. B. 556, at p. 559, Kennedy, J.

·

"An enactment may no doubt be repealed by implication under very special conditions. In the case of Seward v. Vera Cruz' (1884), 10 App. Cas. 59, at p. 68; 54 L. J. P. 9, at p. 13, there is a very clear statement by Lord Selborne of the principle which governs the question of repeal by implication. He there said: 'Now, if anything be certain, &c.' (see ante, pp. 468, 469).”—Headland v. Coster, [1905] 1 K. B. 219, at p. 227; 74 L. J. K. B. 210, at p. 214, Collins, M. R.

Repeal of Proviso by Implication.

"It is a well-known rule in the construction of statutes, that if a substantive enactment in a former Act is repealed, that which comes by way of proviso upon it is impliedly repealed also."Horsnail v. Bruce (1873), L. R. 8 C. P. 378, at p. 385; 42 L. J. C. P. 140, at p. 143, Bovill, C. J.

Repeal saved by Incorporation.

"But there is a rule of construction that, where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second."-Clark v. Bradlaugh (1881), 8 Q. B. D. 63, at p. 69; 51 L. J. Q. B. 1, at p. 7, Brett, L. J.

"If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act you have no occasion to refer to the former Act at all."-In re Wood's Estate (1885), 31 Ch. D. 607, at p. 615; 55 L. J. Ch. 488, at p. 490, Lord Esher, M. R.

Interpretation Act, 1889 (52 & 53 Vict. c. 63).

Sect. 38 (2). "Where this Act or any Act passed after the commencement of this Act [1st January, 1890] repeals any other enactment, then, unless the contrary intention appears, the repeal shall not

"(b) affect the previous operation of any enactment so repealed, or any thing duly done or suffered under any enactment so repealed."

Repeal of Sections modifying an unrepealed Statute.

"But then a further argument was raised on their [the appellants'] behalf, for which we are indebted to the ingenuity of Mr. Druce. He argued that, assuming Lord Campbell's Act [9 & 10 Vict. c. 93 (The Fatal Accidents Act, 1846)] to be modified only by the 504th and 505th sections of the Merchant Shipping Act, 1854 [17 & 18 Vict. c. 104], and not repealed by the Merchant Shipping Repeal Act, 1854 [17 & 18 Vict. c. 120], the modifications introduced by the above sections ought to be taken to have been incorporated into Lord Campbell's Act, and that, being so incorporated, they must subsist, notwithstanding the repeal of the above sections by the Merchant Shipping Amendment Act, 1862 [25 & 26 Vict. c. 63]. I must confess that in the complications of these Acts I felt at the time when this case was argued in some degree embarrassed by this argument; but on considering it I am satisfied that it cannot be supported. The modification introduced by these sections is not in terms incorporated into Lord Campbell's Act. It must, no doubt, have affected that Act so long as it subsisted, but when it was destroyed, its effect must have ceased. Otherwise, the consequence would be, that where any provision of an Act of Parliament has been modified by a subsequent Act, the modification would not be altered without at the same time repealing or altering the original Act, a proposi

tion which cannot, I think, be maintained."-Glaholm v. Barker (1865), L. R. 1 Ch. 223, at p. 229; 35 L. J. Ch. 259, at p. 264, Turner, L. J.

"That an Act which, while substituting temporary provisions only, purports to repeal a prior permanent one will not be read as merely suspending its operation during the currency of the repealing statute, unless the intention of the legislature to that effect be expressed, was decided by Lord Ellenborough in Warren v. Windle (1803), 3 East, 205."-Taylor v. New Windsor Corporation, [1898] 1 Q. B. 186, at pp. 204, 205; 67 L. J. Q. B. 96, at p. 103, Collins, L. J.

Repeal of one Private Statute by another.

One private statute cannot repeal another private statute except by express enactment, or necessary inconsistency.

"Now, it must be remembered that these several Acts, though declared public Acts, are substantially and in their nature private ones, and it is a rule of law that one private Act of Parliament cannot repeal another, except by express enactment; there is no such enactment in the defendants' Act in reference to those of the plaintiff; and the latter are therefore, I consider, unaffected by the former. I have said that, in my opinion, the rule of law as to the construction of such Acts is not to do anything which would be in effect a repeal of any clause, unless in a subsequent Act some words are inserted which would operate as an express repeal of the former. That appears to be the rule as laid down by the learned Judge Jenkyns in Sir Foulk Grevil's Case, reported in his work called Eight Centuries of Reports,' the Third Century, Case 41, p. 120."-The Trustees of the Birkenhead Docks v. Laird (1853), 23 L. J. Ch. 457, at pp. 458, 459; 4 D. M. & G. 732, Turner, L. J.

"Where two statutes give authority to two public bodies to exercise powers which cannot, consistently with the object of the legislature, co-exist, the earlier must necessarily be repealed by the later statute."-Daw v. The Metropolitan Board of Works (1862), 12 C. B. N. S. 161, at p. 174; 31 L. J. C. P. 223, at p. 224, Erle, C. J.

Repeal by Non-user.

"An Act of Parliament cannot be repealed by non-user, notwithstanding any practice that may have obtained to the contrary." -White v. Boot (1788), 2 T. R. 274, at p. 275, per curiam.

'Though, where the words of an Act of Parliament are plain, it cannot be repealed by non-user, yet where there has been a series of practice, without any exception, it goes a great way to explain them where there is any ambiguity."-Leigh v. Kent (1789), 3 T. R. 362, at p. 364, Lord Kenyon, C. J.

"No doubt exists that a British Act of Parliament does not become inoperative by mere non-user, however long the time may have been since it was known to have been actually put in force: but the fact of non-user may be extremely important when the question is whether there has been a repeal by implication."-The India (No. 2) (1864), B. & L. 221, at p. 224; 33 L. J. Ad. 193, Dr. Lushington.

"It is quite true that neither contrary practice nor disuse can repeal the positive enactment of a statute, but contemporaneous and continuous usage is of the greatest efficacy in law for determining the true construction of obscurely framed documents."Hebbert v. Purchas (1871), L. R. 3 P. C. 605, at p. 650, Lord Hatherley, L. C., delivering the judgment of the Judicial Committee.

(See also ante, p. 454, "Obsolete and Obsolescent Statutes.")

Repeal and Re-enactment.

"Their lordships conceive that, in dealing with a statute which professes merely to repeal a former statute of limited operation, and to re-enact its provisions in an amended form, they are not necessarily to presume an intention to extend the operation of those provisions to classes of persons not previously subject to them, unless the contrary is shown; but that they are to determine on a fair construction of the whole statute, considered with reference to the surrounding circumstances, whether such an intention existed.”—Brown v. McLachlan (1872), L. R. 4 P. C. 543, at p. 550; 42 L. J. P. C. 18, at p. 23, Sir W. Colville, delivering the judgment of the Judicial Committee.