and extensive liability beyond the liability imposed by the Common Law (d). But where the language used in a special Act is not capable of a narrower construction than one which would take away the rights of strangers, or would create a new liability, that effect must be given to it. Thus, where a local and personal Act recited that letters patent had been granted to the plaintiff upon certain conditions, and confirmed the grant, although some of the conditions had not been duly performed, it was held that this confirmation was effectual against all the world, and that it rendered invalid a patent for a similar invention, which had been granted to the defendant between the time of the plaintiff's grant and its confirmation (e). "The Legislature," says Byles, J., "in passing a private Act, is as omnipotent as in passing a public Act; and if the words of the Act do clearly and inevitably comprehend the estates or rights of strangers, a Court of law must hold those estates or rights of strangers bound" (f). Again, a special Act affects the rights of those interested in its subject-matter, although it may have passed without their receiving due notice of its introduction (g), and persons dealing with a company incorporated by a special Act of Parliament are presumed to be acquainted with the provisions of that statute (h). (d) Wear Commissioners v. Adamson, L. R. 2 App. Cas. 743. (e) Stead v. Carey, 1 C. B. 496. (f) Earl of Shrewsbury v. Scott, 6 C. B. N. S. at p. 219. See also the expressions of Cockburn, C.J., at pp. 157, 158, and of Pollock, C.B., at p. 222. (g) Edinburgh Rail. Co. v. Wauchope, 8 Cl. & Fin. 710. (h) Cahill v. L. and N. W. Rail. Co., 10 C. B. N. S. 154; 30 L. J. C. P. 289. AFFIRMATIVE AND NEGATIVE STATUTES. tive Acts a custom, Another classification which has been commonly adopted, but the accuracy of which has been questioned (i), consists in the division of Acts of Parliament into affirmative and negative statutes. Originally, no doubt, these terms were employed. with reference to the language of the statutes themselves, and affirmative words were regarded as permissive, negative words as prohibitory. Acting on this principle, the older authorities laid it down that an affirmative Act did not take away a cus- Affirmatom (k). The 11 Geo. IV. and 1 Will. IV. c. 64, do not which made it lawful for any person licensed as the take away Act provided, to sell beer by retail in any part of England, did not supersede the custom of a borough that no one but a burgess should keep an alehouse (1). Nor was a custom of the city of London for the mayor and aldermen, after any person whom they considered unfit to be an alderman had been chosen at three successive elections, to fill up the vacancy themselves, taken away by away by an Act which provided that the right of election should belong to the freemen of the city (m). It has also been or alter laid down that an affirmative statute does not take away the Common Law (n), affect or abridge Common Law rights and privileges, such as the manner in which the panel of assize was arrayed (0), or the (1) R. v. Mayor of London, 13 Q. B. at p. 33, per Alderson, B. (1) Mayor of Leicester v. Burgess, 5 B. & Ad. 246. (m) R. v. Johnson, 6 Cl. & Fin. 41. (n) 2 Inst. 200; Escott v. Mastin, 4 Moo. P. C. at p. 131. (0) Brooke's Abridgement, tit. Parlement, pl. 70. the Common Law. power of the sheriff to take the posse comitatus for the purpose of serving process (p), or the right of a tenant in tail to cut timber (q), or interfere with an existing exemption, such as an immemorial exemption from serving on juries ('). The distinction between affirmative and negative words which has thus been established prevails in more modern cases. The provision of the 3 & 4 Vict. c. 61, that an applicant for a licence for the sale of beer by retail should produce to the officer of excise a certificate that he was the real resident holder and occupier of the house for which he applied to be licensed, was held not to be imperative, while an opposite construction was placed on the negative words in the same Act, providing that no licence should be granted to one who was not a real resident holder (s). The 5 Vict. c. 27 (sess. 2), enabled incumbents to demise the lands belonging to their benefices on farming leases for fourteen years, reserving the rent quarterly, and complying with other special conditions. By the Common Law, as modified by 13 Eliz. c. 10, a parson or vicar might grant a lease of any part of his glebe for twentyone years, or three lives, so long as the lease was confirmed by the patron of the living and the ordinary. It was held that this existing power of granting a lease for twenty-one years was not restrained by the affirmative words of the Act which enabled leases to be granted for fourteen (P) Brooke's Abridgement, tit. Parlement, pl. 108. (r) R. v. Pugh, 1 Doug. 188. (s) Thompson v. Harvey, 4 H. & N. 254. years (t). Another case was decided upon the affirmative words of the Companies Clauses Act, 8 Vict. c. 16, the 97th section of which enacted that the power of directors to make contracts might lawfully be exercised in certain specified ways, and that all contracts so made should be effectual in law, and binding upon the company. It was held that an agreement which was not made according to the provisions of the Act might be specifically enforced by the Court of Chancery (u). "The Legislature," said Turner, L.J., in that case (x), "has in this section pointed out modes in which the powers of directors to contract may lawfully be exercised, and has enacted that all contracts made according to those provisions shall be binding and effectual; but it has not said that contracts made in other modes shall not be binding and effectual where there is power so to make them." We may contrast with this decision the effect given to negative words in the Municipal Corporation Act, 5 & 6 Will. IV. c. 76, which provided that a list of the persons elected councillors of a borough should be published by the mayor "not later than two of the clock." It was held that under these words a publication could not be made after two o'clock, even for the purpose of correcting an error (y). (t) Green v. Jenkins, 1 De G., F. & J. 454. (u) Wilson v. West Hartlepool Rail. Co., 2 De G., J. & S. 475. (x) At p. 496. (y) R. v. Mayor of Leeds, 11 A. &. E. 512. DECLARATORY AND ENACTING STATUTES. Although in all these cases the Courts attached the greatest weight to the language of the statutes, at other times they considered whether the Legislature intended to declare the existing law, or to replace it by a new enactment. In the former case the use of negative words was not imperative; in the latter, affirmative words were not merely permissive. It is stated in the older authorities that affirmative statutes which introduce a new law imply a negative to all that is not in the purview (2), and that the express designation of one person in such statutes is the exclusion of all others (a). Thus where an action founded on the Statute 34 & 35 Hen. VIII. was appointed by that Act to be returned before the justice of Glamorgan at his sessions, it was held that it could not be sued or returned elsewhere, or before any other. And where Statute 31 Edw. III. c. 12, provided that error in the Exchequer should be corrected and amended before the Chancellor and Treasurer, it could not be corrected before any other (b). In a modern case it was decided that where the words of an Act, though affirmative, were absolutely inconsistent with the continuance of a custom, the custom must yield to the statute (c). "A well-known passage from Lord Coke has been cited by Quain, J.," said (2) Slade v. Drake, Hob. 298. (a) Foster's Case, 11 Rep. at p. 64. (b) Stradling v. Morgan, Plowd. at p. 206 a. |