Thus section 4 of the Trade Disputes Act, 1906,1 is not retrospective, and does not prevent the further maintenance of an action against a trade union which was commenced before the passing of the Act. Again, the Prevention of Crime Act, 1908,3 was held to apply to a person convicted of a crime committed between the date of the passing of the Act and the date of its coming into operation, the trial and conviction taking place after the latter date, the words of the Act being "a crime committed after the passing of this Act." 4

(v.) If general words in a statute follow particular terms, they will be construed as applying only to persons or things of the same class (ejusdem generis) as those already mentioned. Thus a bicycle is not included in the words "coach, chariot, hearse, chaise, gig, car, chair, and every other carriage hung on springs."

(vi.) If particular terms only be used and no general words follow, the statute will be construed as not applying to any other persons or things of the same class, but only to those already expressly mentioned. Expressio Expressio unius est exclusio

alterius.

Thus the first great Poor Law Act, passed in 1601,6 imposed rates on "lands, houses, tithes, coal mines, or saleable underwoods in the parish;" and it was held that no other mines could be rated. "As there may be a reason for the strict letter of the statute, and none appears for extending it beyond the letter, we have no ground or authority or pretence for giving it that extensive construction."7

(vii.) If one statute deals generally with a whole class of persons or things, and another statute, whether earlier or later in date, deals exclusively with a particular species of the persons or things included in that class, the special provision will restrict the general enactment and will control the particular species of persons or things.8

Thas, as we have seen above, a general enactment that no county court 16 Edw. VII., c. 47.

2 Smithies v. National Association of Operative Plasterers, [1909] 1 K. B. 310. 38 Edw. VII., c. 59, s. 10.

R. v. Smith, [1910] 1 K. B. 17.

5 Simpson v. Teignmouth & Shaldon Bridge Co., [1903] 1 K. B. 405; Smith v. Kynnersley, ib. 788; Plymouth, &c., Tramways Co. v. General Tolls Co., Ltd. (1896), 75 L. T. 467; (H. L.) (1898), 14 Times L. R. 531; and see Cannan v. Earl of Abingdon, [1900] 2 Q. B. 66.

6 43 Eliz. C. 2.

7 Per Lord Mansfield in Lead Co. v. Richardson (1762), 3 Burr. at p. 1344; and

see R. v. Bell (1798), 7 T. R. at p. 600; R. v. The Ìnhabitants of Woodland (1802),

2 East, at p. 164; R. v. Cunningham and others (1804), 5 East, 478.

As to the construction of private Acts, see In re Verrall, [1916] 1 Ch. 100.

9

Cargo ex" Argos," suprà.

can try any action arising out of a contract, if the amount claimed exceeds £50, must yield to a special provision that certain county courts can try any claim arising out of an agreement for the use or hire of any ship, even if it exceeds £50.

2

Again, by section 3 of the Fatal Accidents Act, 1846,1 an action for the benefit of the wife or child of a person whose death has been caused by the wrongful act, neglect, or default of another must be commenced within twelve calendar months of the death of the deceased. By section 1 of the Public Authorities Protection Act, 1893, an action against any person for any act done in pursuance, or execution, or intended execution of any Act of Parliament, or in respect of any alleged neglect or default in the execution of any Act, must be commenced within six months. An action under the Fatal Accidents Act, 1846, was brought against the defendants, a statutory body formed to maintain a hospital, to recover damages for the death of a patient in the hospital caused by the negligent act of a nurse in the defendants' employment; the writ was issued more than six months, but less than twelve months, after the death of the deceased. Held, that the action was brought too late, and was not maintainable.3

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(viii.) A statute which destroys, infringes or restricts any existing right will be construed strictly. "The burthen lies on those who seek to establish that the Legislature intended to take away the private rights of individuals to show that by express words, or by necessary implication, such an intention appears." Thus cases not infrequently occur in which it is necessary for the benefit of the community as a whole to take private property away from its owner. But such an invasion of private right is never sanctioned without due inquiry, and when it is sanctioned compensation should always be granted to the owner of the property taken. A clause to this effect is almost invariably inserted in the Act which legalises the infringement. And even in the absence of any such clause, "it is a proper rule of construction not to construe an Act of Parliament as interfering with or injuring persons' rights without compensation, unless one is obliged to so construe it."5

19 & 10 Vict. c. 93.

2 56 & 57 Vict. c. 61.

8 Markey and another v. Tolworth Joint Isolation Hospital District Board, [1900] 2 Q. B. 454.

Per Lord Blackburn in Metropolitan Asylum District v. Hill (1881), 6 App. Cas. 193, at p. 208.

5 Per Brett, M. R., in Att.-Gen. v. Horner (1881), 14 Q. B. D. at p. 257; and

shall inherit his land in equal shares, and not the eldest son alone. Again, there is a custom in certain ancient boroughs, and therefore called boroughEnglish, that the youngest son shall inherit the estate in preference to all his elder brothers. These customs are so well known that the Court will take judicial notice of them; it is only necessary to prove that the custom is applicable to the lands in question. And in other boroughs there is at custom that a widow shall be entitled for her dower to the rents and profits of all her husband's lands during her lifetime, whereas at the common law she is entitled for dower to only one third part of them.

Again, where a tenant for life is forbidden to commit waste, he may not fell timber; and by the word "timber" is meant, as a rule, oak, ash and elm trees. In Buckinghamshire and other counties beech is also timber by custom; 2 so in other places is willow. But there cannot be a custom to prevent tenants for life from cutting down larch trees, as larch trees were unknown in England before the reign of James I.3 Agricultural and trade customs may vary, and this is for the public good. But a custom defining or restricting the rights of a limited owner of land must be immemorial.

A local custom, therefore, so far as it extends, supersedes the general law. It derives its validity from long-continued usage. From such usage, it was said, the consent of those immediately affected by it might be implied. But as a matter of fact such consent was never consciously asked or given; nor is proof of any such consent necessary to the validity of the custom. The fact that the custom is inconsistent with the general law of the land will not render it bad in law. But no local custom can prevail against an express Act of Parliament. Every custom-in theory at all events -must be anterior in date to any statute, and an express subsequent statute will override any antecedent custom.5

Thus all local customs with regard to wills and all customs, which declare that women and children shall have rights of succession indefeasible by will, have been abrogated by statute. Again, a custom to weigh 18 ounces to a pound is bad, for the statute 13 & 14 Car. II. c. 26 takes it for granted that a pound shall consist of 16 ounces.7

1 See Muggleton v. Barnett (1856), 1 H. & N. 282; 2 H. & N. 653.

2 Dashwood v. Magniac, [1891] 3 Ch. 306.

In re Harrison's Trusts (1884), 28 Ch. D. 220, 227; and see the dissenting judgment of Kay, L. J., in Dashwood v. Magniac, [1891] 3 Ch. at p. 379.

See the remarks of Best, C. J., in Lord Falmouth v. George (1828), 5 Bing. at p. 293.

Mayor, &c., of New Windsor v. Taylor, [1899] A. C. 41; but see Lanchbury v. Bode, [1898] 2 Ch. 120.

The Statute of Distributions (22 & 23 Car. II., c. 10), s. 4; and 19 & 20 Vict. c. 94. Noble v. Durrell (1789), 3 T. R. 271, 271. See further, as to a custom being abrogated by statute, Truscott v. Merchant Taylors' Co. (1856), 11 Ex. 855.

(1) In order that a local custom may be legal and binding, it must have been in use in the locality for a considerable time. If any one can show that it commenced after the first year of the reign of Richard I., it is no good custom. It is not, however, necessary to produce evidence extending over so long a period. On proof of enjoyment for a much less period (e.g., for twenty years or so), juries were held justified in finding, in the absence of evidence to the contrary, that the custom has existed from time immemorial. And now, where a claim by custom "may be lawfully made at common law" to any right of common or other profit or benefit to be taken. and enjoyed from or upon the land of any person, or "to any way or other easement, or to any watercourse, or to the use of any water to be enjoyed or derived" upon or from the land of any person, the period of use necessary to support such a claim is regulated by sections 1 and 2 of the Prescription Act, 1832,2 which was passed to shorten "the time of prescription in certain cases."

"A defendant may no doubt defeat a custom by showing that it could not have existed in the time of Richard I.; but he must demonstrate its impossibility, and the onus is on him to do so if the existence of the custom has been proved for a long period; this was done, for instance, in Simpson v. Wells, where the claim of a custom to set up stalls at the Statute Sessions for the hiring of servants was defeated by showing that such sessions were introduced by the Statutes of Labourers, the first of which was in the reign of Edward III. . . . Not only ought the Court to be slow to draw an inference of fact which would defeat a right that has been exercised during so long a period as the present unless such inference is irresistible, but it ought to presume everything that is reasonably possible to presume in favour of such a right."

(2) It must be proved to have been continuous; any interruption would cause a temporary ceasing, and the revival gives it a new beginning which will be within time of memory, and thereupon the custom will be void. But this must be under

1 Jenkins v. Harvey (1835), 1 Cr. M. & R. 877; cited in Master Pilots, &c., of Newcastle-upon-Tyne v. Bradley (1852), 21 L. J. Q. B. 196; R. v. Joliffe (1823), 2 B. & C. 54; Duke of Beaufort v. Smith (1849), 4 Exch. 450.

2 2 & 3 Will. IV. c. 71. See Disturbance of Easements, &c.. post, pp. 565-596. 3 (1872), L. R. 7 Q. B. 214. A different rule prevails in the case of such an immemorial custom at a fair; see the judgment of Blackburn, J., ib. at pp. 216, 217; and Elwood v. Bullock (1844), 6 Q. B. 383.

4 Per Farwell, J., in Mercer v. Denne, [1904] 2 Ch. at pp. 555, 556.

stood to relate to an interruption of the right; for an interruption of the enjoyment of the right for only ten or twenty years will not destroy the custom. Thus if the inhabitants of

a parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed though they do not use it for ten years: it only becomes more difficult to prove; but if the right be anyhow surrendered for a day, the custom is quite at an end.

(3) The particular customary right must have been asserted openly and acquiesced in by the persons whom it affected. The enjoyment under it must have been peaceable, and not the subject of contention and dispute. In other words, the user must have been "as of right."

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(4) The custom must also be reasonable.1 But a custom may be good though the particular reason of it cannot be assigned, for it sufficeth if no good legal reason can be assigned against it." A custom is not unreasonable merely because it is contrary to a particular maxim or rule of the common law. Thus the customs of gavelkind and boroughEnglish, mentioned above, are legal and binding though directly contrary to the law of descent. Again, "a custom is not unreasonable because it is prejudicial to the interests of a private man, if it be for the benefit of the commonwealth,' Thus a "custom to turn the plough upon the headland of another, in favour of husbandry, or to dry nets on the land of another in favour of fishing and for the benefit of navigation," or to take water from the well of another, is a legal and binding custom. But as such customs derogate from the general rights of property, they must be construed strictly; they must not be "enlarged beyond the usage.

996

5

The deputy day meters of the City of London were held to be entitled by immemorial custom to the exclusive right, by themselves or their

1

Sowerby v. Coleman (1867), L. R. 2 Ex. 96; R. v. Venn (1875), L. R. 10 Q. B. 310, 2 1 Bla. Com. 77.

3 Per Tindal, C. J., in Tyson v. Smith (1838), 9 A. & E. at p. 421; and see Lord Falmouth v. George (1828), 5 Bing. 286; Mercer v. Denne, [1904] 2 Ch. 534; [1905] 2 Ch. 538.

Race v. Ward (1855), 4 E. & B. 702; (1857), 7 E. & B. 384.

5 See the remarks of Lord Denman, C. J., in Rogers v. Brenton (1847), 10 Q. B. at p. 57; and of Bayley, J., in Richardson v. Walker (1824), 2 B. & C. at p. 839. Per Cockburn, C. J., in Muggleton v. Barnett (1857), 2 H. & N. at p. 680.