artificer, workman, laborer, or other person whatsoever,' shall do or exercise any worldly labor, business, or work of his ordinary calling on Sunday (works of necessity and charity only excepted), and that *every person of the age of fourteen years offending in [*24] the premises shall forfeit the sum of 58.2 The effect of which enactment is, that if a man, in the exercise of his ordinary calling," make a contract on a Sunday, that contract will be void, so as to prevent a party who was privy to what made it illegal from suing it in a court of law, but not so as to defeat a claim made upon it by an innocent party. A horse-dealer, for instance, cannot maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday;5 though, if the contract be not completed on the Sunday, it will not be affected by the statute."

upon

In a case before the House of Lords, it appeared, that an apprentice to a barber in Scotland, who was bound by his indentures "not to absent himself from his master's business on holiday or week-day, late hours or early, without leave, went away on Sundays without leave, and without shaving his master's customers:-Held by the Lords (reversing the interlocutors of the Court of Session), that the apprentice could not be lawfully required to attend his master's shop on Sundays, for the purpose of shaving his customers, and that that work, and all other sorts of handicraft, were illegal *in England as well as in Scotland, not being works of necessity, 7, mercy, or charity.7

[*25]

Where, in an action of assumpsit for breach of the warranty of a

1A farmer is not within the statute, Reg. v. Cleworth, 4 B. & S. 927 (116 E. C. L. R.).

2

Exceptions to the above general rule are in certain cases allowed by statute, see R. v. Younger, 5 T. R. 449; Reg. v. Whiteley, 3 H. & N. 143.

3 See R. v. Inhabs. of Whitnash, 7 B. & C. 596 (14 E. C. L. R.); Smith v. Sparrow, 4 Bing. 84 (13 E. C. L. R.); Peate v. Dicken, 1 Cr., M. & R. 422; Scarfe v. Morgan, 4 M. &. W. 270.

✦ Judgm., Fennell v. Ridler, 5 B. &. C. 408 (11 E. C. L. R.), explaining Lord Mansfield's remarks in Drury v. De la Fontaine, 1 Taunt. 135.

5

6

Fennell v. Ridler, 5 B. &. C. 406 (11 E. C. L. R.).

Bloxsome v. Williams, 3 B. & C. 232 (10 E. C. L. R.); Smith v. Sparrow, 4 Bing. 84 (13 E. C. L. R.). See also Williams v. Paul, 6 Bing. 653 (19 E. C. L. R.), (observed upon in Simpson v. Nicholls. 3 M. &. W. 240); BeauBrengeri, 5 C. B. 301 (57 E. C. L. R.); Norton v. Powell, 4 M. & Gr.

mont v.

42 (43 E. C. L. R.)

horse, the defendant alone was in the exercise of his ordinary calling, and it appeared that the plaintiff did not know what his calling was, so that, in fact, defendant was the only person who had violated the statute:-The Court held that it would be against justice to allow the defendant to take advantage of his own wrong, so as to defeat the rights of the plaintiff, who was innocent.' And for the like reason, in an action by the endorsee against the acceptor of a bill of exchange which was drawn on a Sunday, it was held that the plaintiff might recover, there being no evidence that it had been accepted on that day; but the Court said, that, if it had been accepted on a Sunday, and such acceptance had been made in the ordinary calling of the defendant, and if the plaintiff was acquainted with this circumstance when he took the bill, he would be precluded from recovering on it, though the defendant would not be permitted to set up his own illegal act as a defence to an action at the suit of an innocent holder.2 A bill of exchange falling due on a Sunday is payable on the preceding day.

A person, however, can commit but one offence on the same day by exercising his ordinary calling in violation of the statute of Charles; and if a justice of the peace convict him in more than one penalty for the same day, it is an excess of jurisdiction.3

*In addition to the class of cases decided under the statute [*26] just cited, we may refer to one of a somewhat different description, in which, however, the principle of public policy which dictated that statute was discussed. In the case alluded to, a question arose as to the validity of a by-law, by which the navigation of a certain canal was ordered to be closed on every Sunday throughout the year (works of necessity only excepted). In support of this by-law was urged the reasonableness of the restriction sought to be imposed thereby, and its conformity in spirit and tendency with those enactments by which Sunday trading is prohibited; the Court, however, held, that the navigation company had no power, under their Act, to make the by-law in question, their power being confined to the making of laws for the government and orderly use of the navigation, but not extending to the regulation of moral or

1 Bloxsome v. Williams, 3 B. & C. 232 (10 E. C. L. R.); cited 5 B. & C. 408, 409 (11 E. C. L. R.).

2 Begbie v. Levi, 1 Cr. & J. 180.

3

Crepps v. Durden, Cowp. 640; cited 4 E. & B. 422 (82 E. C. L. R.).

religious conduct, which must be left to the general law of the land, and to the laws of God.' A railway company is bound to deliver up luggage deposited at the luggage and cloak office on Sunday as on other days, unless protected by special condition printed on the receipt ticket.2

§ II. RULES OF LEGISLATIVE POLICY.

In this section are comprised certain maxims relating to the operation of statutes, and developing elementary principles, which the legislature of every civilized country must, for the most part, observe in its enactments. These maxims are three in [*27] number: 1st, that a later shall repeal an earlier and conflicting statute; 2dly, that laws shall not have a retrospective operation; and, thirdly, that enactments should be framed with a view to ordinary rather than extraordinary occurrences. We shall hereafter have occasion to consider the rules applicable to the construction of statutes, and may, for the present, confine our attention to the maxims of legislative policy just enumerated.

LEGES POSTERIORES PRIORES CONTRARIAS ABROGANT.
(1 Rep. 25 b.)

When the provisions of a later statute are opposed to those of an earlier, the earlier statute is considered as repealed.

The legislature, which possesses the supreme power in the State, possesses, as incidental to that power, the right of changing, modifying, and abrogating the existing laws. To assert that any one Parliament can bind a subsequent Parliament by its ordinances, would in fact be to contradict the above plain proposition; if, therefore, an Act of Parliament contains a clause, "that it shall not be lawful for the King, by authority of Parliament, during the space of seven years, to repeal and determine the same Act," such a clause, which is technically termed "clausula derogatoria," will be simply void,

1 Calder and Hebble Nav. Co. v. Pilling, 14 M. & W. 76.
'Stallard v. Great Western R. C., 2 B. & S. 419 (110 E. C. L. R.).

2

and the Act may, nevertheless, be repealed within seven years,1 for non impedit clausula derogatoria quo minus ab eâdem potestate res dissolvantur a quibus constituentur. And again, perpetua lex est nullam legem humanam ac positivam perpetuam esse, et clausula quæ abrogationem excludit ab initio non valet. The principle thus set forth seems to be of universal application, and it will be [*28] remembered that, as regards our own Parliament, an Act may now be altered, amended or repealed in the same session in which it is passed, "any law or usage to the contrary notwithstanding."3

It is then an elementary and necessary rule, that a prior statute shall give place to a later-Lex posterior derogat priori. Non est novum ut priores leges ad posteriores trahantur, provided the intention of the legislature to repeal the previous statute be expressed in clear and unambiguous language, and be not merely left to be inferred from the subsequent statute. For a more ancient statute will not be repealed by a more modern one, unless the later expressly negative the former, or unless the provisions of the two statutes are manifestly repugnant, in which latter case the earlier enactment will be impliedly modified or repealed: implied repeals, moreover, are not favored by the law, since they carry with them a tacit reproach, that the legislature has ignorantly, and without knowing it, made one Act repugnant to and inconsistent with another and the repeal itself casts a reflection upon the wisdom of former Parliaments."

*The rule," says Lord Hardwicke, "touching the repeal [*29] of laws, is leges posteriores priores contrarias abrogant; but

1 Bac. Max., reg. 19.

3 13 & 14 Vict. c. 21, s. 1.

2 Id.

4 See Mackeld. Civ. L. 6.

5 D. 1. 3. 26. Constitutiones tempore posteriores potiores sunt his quæ ipsas præcesserunt. D. 1. 4. 4.. A rule of court may be overridden by a statute; see Harris v. Robinson, 2 C. B. 908 (52 E. C. L. R.).

6 See Phipson v. Harvett, 1 Cr., M. & R. 473 ; judgm., Reg. v. St. Edmund's, Salisbury, 2 Q. B. 84 (42 E. C. L. R.).

7 Gr. & Rud. of Law 190; arg. Reg. v. Mayor of London, 13 Q. B. 1 (66 E. C. L. R.); 19 Vin. Abr. 525, "Statutes," (E. 6), pl. 132. See per Lord Kenyon, C. J., Williams v. Pritchard, 4 T. R. 2, 4; Ablert v. Pritchard, L. R. 1 C. P. 210; Rix v. Borton, 12 A, & E. 470 (40 E. C. L. R.); Dakins v. Seaman, 9 M. &. W. 777.

8 Vin. Abr. "Statutes," (E. 6), 132, cited arg. Phipson & Harvett, 1 Cr., M. & R. 481.

9 Dwarr. Stats., 2d ed., 533.

subsequent Acts of Parliament, in the affirmative, giving new penalties, and instituting new methods of proceeding, do not [necessarily],' repeal former methods and penalties of proceeding, ordained by preceding Acts of Parliament, without negative words." Nor does an affirmative statute giving a new right of itself of necessity destroy a previously existing right, unless the intention of the legislature be apparent that the two rights should not exist together.3 In order to repeal an existing enactment, a statute must have either express words of repeal, or must be contrary to, or inconsistent with, the provisions of the law said to be repealed, or at least mention must be made of that law, showing an intention of the framers of the later Act of Parliament to repeal the former. But "the law will not allow the *exposition to revoke or alter by construction of general words any particular statute, where the words may have their proper operation without it."

[*30]

1 Michell v. Brown, 1 E. & E. 267, 274 (102 E. C. L. R.), where Lord Campbell, C.J., observes, "If a later statute again describes an offence created by a former statute, and affixes a different punishment to it, varying the procedure, &c., giving an appeal where there was no appeal before, 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 misdemeanor instead of a felony, or a felony instead of a misdemeanor, 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." See Evans v. Rees, 9 C. B. N. S. 391 (99 E. C. L. R.).

Middleton v. Crofts, 2 Atk. 674, cited Wynn v. Davis, 1 Curt. 79. Vin. Abr. "Statutes," (E. 6), pl. 132, cited arg. Macdougall v. Paterson, 11 C. B. 767 (73 E. C. L. R.).

3 O'Flaherty v. M'Dowell, 6 H. L. Cas. 142, 157.

4"It is a rule of law that one private Act of Parliament cannot repeal another, except by express enactment." Per Turner, L. J., Trustees of Birkenhead Docks v. Birkenhead Dock Co., 33 L. J. Ch. 457; s. c., 4 De G., M. & G. 732; Purnell app., Wolverhampton New Waterworks Co., resp., 10 C. B. N. S. 597, 591 (100 E. C. L. R.).

5 Per Sir H. Jenner, 1 Curt. 80. See also the cases cited; arg. Reg. v. Mayor of London, 13 Q. B. 1 (66 E. C. L. R.); Bramston v. Mayor, &c., of Colchester, 6 E. & B. 246 (88 E. C. L. R.); Parry v. Croydon Commercial Gas and Coke Co., 11 C. B. N. S. 579 (103 E. C. L. R.); Great Central Gas Co. v. Clarke, 11 C. B. N. S. 814, 835, 841 (103 E. C. L. R.) ; s. c., 13 Id. 838; Daw v. Metropolitan Board of Works, 12 C. B. N. S. 161 (104 E. C. L. R.); Michell v. Brown, 1 E. & E. 267 (102 E. C. L. R.).

Lyn v. Wyn, O. Bridgm. Judgments 122, 127; cited per Smith, J., Conservators of the Thames v. Hall, L. R. 3 C. P. 421.