1. But successive income tax statutes quaintly retain the rule that the holder of an office or employment who is necessarily obliged in fulfilling his duties to incur the expenses ‘of keeping and maintaining a horse to enable him to perform the same’ is entitled to deduct them from his earnings for tax purposes. The current provision is in s. 189 of the Income and Corporation Taxes Act 1970, c. 10.

2. For instance the Sexual Offences Act 1967, c. 60 (amending the law on homosexual practices); Part III of the Finance Act 1975, c. 7 (replacing estate duty by capital transfer tax); and the Theft Act 1978, c. 31 (replacing s. 16 (2) (a) of the Theft Act 1968, c. 60) respectively.

3. Within this part, the property legislation of 1925, 15 Geo. 5, cc. 18–23, still dominates land law and much of equity, and has been little revised; it is now causing quite severe problems, one of which I touched on in my article ‘The Transmission of Restrictive Covenants’ (1982) 2 Legal Studies 53 and another I briefly consider later in this article.

4. The construction problem is not limited to statutes. There is an equivalent one (though possibly the solution is or ought to be different) when the court is faced with obsolete phrases in a deed or will. Thus the phrase ‘working classes’ has fallen to be construed not only in relation to the Housing Acts (for instance by Lord Denning in H. F. Green & Sons Ltd v Ministry of Housing (No 2) [1948] I KB 34 at 38 and Blackett-Ord V-C in Chorley BC v Barratt Developments (North West) Ltd [1979] 3 All ER 634), but also as found in a will in Re Sunders' Will Trusts [1954] Ch 265, a case of Harman J. The question in this latter case, and also in Re Niyazi's Will Trusts [1978] 1 WLR 910, which had similar facts, was whether a bequest had the quality of being intended to relieve poverty, in the sense of charity law.

5. Of course the meanings of words sometimes alter without any apparent underlying moral or social change: thus, ‘antique’ today might mean ‘made before 1900’, but in 1900 something quite different. See Bennett v Brown (1980) 71 Cr App R 109.

6. For brief but now somewhat outdated accounts see SirMaxwell, P. B. The Interpretation of Statutes (12th edn, 1969) pp. 264–270 Google Scholar, Craies, W. F. Statute Law (7th edn, 1971) pp. 79–82Google Scholar, and SirCross, R. Statutory Interpretation (1976) pp. 44–48, 126–127Google Scholar. The best treatment is in Bennion's, F. Statute Law (1980) pp. 124–129 and 136–140Google Scholar, but Mr Bennion places similar emphasis on the (in my opinion, relatively easily resolved) problems arising from variations of meaning in place, and those arising from variations of meaning in time. Furthermore, the examples given of obsolete phrases are almost all drawn from obsolete and largely non-operational statutes, implying that the problems are only academic.

7. (1888) 22 QBD 239; affd. [1891] AC 173.

8. At p. 242. For a case in which Lord Esher applied his proviso, see Gaslight and Coke Co v Knight (1883) 17 QBD 619, CA. The proviso covers, as well as later statutes, Orders in Council; Post Office v Estuary Radio Ltd [1968] 2 QB 740. But the later statute must be related to and bearing upon the earlier: A-G v Mutual Tontine Westminster Chambers Assn (1875) LR 10 Ex 305 at 315.

9. In The Longford (1889) 14 PD 34 at 36.

10. 2 Co Inst 2. Commenting on the opening phrase on Magna Carta, ‘Imprimis Concessimus Deo’ Coke said ‘We have graunted to God: when anything is granted for God, it is deemed in Law to be granted to God … And this and the like were the formes of ancient Acts and Graunts, and those ancient acts and graunts must be construed and taken as the Law was holden at that time when they were made’.

11. For instance in the Sussex Peerage Case (1844) 11 CI & F 85 at 143 (Tindal CJ); Aerated Bread Co Ltd v Gregg (1873) LR 8 QB 355 at 359 (Blackburn J) and 361 (Archbald J); Corpn of Dublin v Trinity College (1903) 88 LT 305 at 306 (Lord Halsbury LC); A-G's Reference (No 5 of 1980) [1981] 1 WLR 88 at 92E (per Lawton LJ). In Sir P. B. Maxwell's The Interpretation of Statutes (12th edn, 1969) we read (at p. 85): ‘The words of an Act will generally be understood in the sense which they bore when it was passed. They are to be construed, it has been said, “as if we had to read it the day after it was passed”, though this does not prevent old words from being applied to things not known or invented at the time of the enactment’; and again (at p. 264) ‘It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed …’ Both these passages have been cited with approval in judgments in Helby v Rafferty [1979] 1 WLR 13, CA, at 25–6 (per Stamp LJ) and (from an earlier edition) in R v Casement [1917] 1 KB 98 (Court of Criminal Appeal) at 138–9 (per Darling J). There are similar statements in Craies Statute Law (7th edn, 1971) pp. 79–80 and Sir R. Cross Statutory Interpretation (1976) p. 45.

12. Not all modern lawyers realise how central maxims were to the knowledge and formulations of the law until quite modern times. Thus we read in Sheppard's Epitome, published in 1656, ‘Our laws are divided into three sorts. Common law, which is nothing else but Common Custom, and that which is commonly used through the whole nation; and this is founded especially upon certain principles or Maxims made out of the Law of God, and the Law of Reason’ (Ch. 102, p. 684); and see generally Doctor and Student, cc. 7–9 (reprinted in 1974 by the Selden Society, Vol 71) and Co Litt 11. For a general history of maxims in the law, see R. Pound (1921) 34 Haw LR 809, especially pp. 827–836.

13. 2 Co Inst 11.

14. Holdsworth, History of English Law Vol 2 Google Scholar.

15. 2 Co Inst 136.

16. 4 Co Inst 138. The judgment was in Burton v Put (1427) 6 Hen 6 Rot 303, but the statute Coke apparently had in mind was 2 Hen 4, c. 11 enacted in 1401, over 20 years before the judgment.

17. For instance in Harcourt v Fox (1693) 1 Show KB 506 at 535 (Holt CJ said, of a statute of 1545, 37 Hen. 8, c. 1, ’Contemporanea expositio legis est optima, a contemporary exposition of the law, if there be any question about it, as our books tell us, is always the best because the temper of the law makers is then best known); Morgan v Crawshay (1871) LR 5 HL 304 at 315 (per Martin B, considering a statute of 1601, 43 Eliz. 1, c. 2); Associated Newspapers Ltd v City of London Corpn [1916) 2 AC 429 at 440 (per Lord Haldane on a statute of 1767, 7 Geo. 3, c. 73).

18. For instance in Gorham v Bishop of Exeter (1850) 15 QB 52 at 69–74 (per Campbell LCJ, relying on an interpretation by Coke himself, at 4 Co Inst 340, of a statute of 1533, 25 Hen 8, c. 19).

19. Latin scholars will recall that the infinitive form of the verb can be used in an imperative sense: only thus could it be a maxim. But cf’ It is better stare decisis' per Grose J in R v Inhabitants of St Paul Deptford (1811) 13 East 320 at 321.

20. For instance SirAllen, C. K. Law in the Making (7th edn, 1964) p. 197 Google Scholar; Lord Lloyd of Hampstead Introduction to Jurisprudence (3rd edn 1972) pp. 702–715 Google ScholarPubMed; Walker and Walker The English Legal System 5th edn, 1980) p. 130; Baker, J. H. An Introduction to English Legal History (2nd edn, 1979) p. 173 Google Scholar; Hood-Phillips, O. A First Book of English Law (7th edn, 1977) p. 200 Google Scholar. In his Precedent in English Law (3rd edn, 1977) at pp. 105–107, Sir Rupert Cross considered the phrase at some length but did not note the earlier usage.

21. For instance D. H. Laird ‘The Doctrine of Stare Decisis’ (1935) 13 Can BR 1; G. F. P. Mason ‘Stare Decisis in the Court of Appeal (1956) 19 MLR 136, Sir R. Cross ‘Stare Decisis in Contemporary England’ (1966) 82 LQR 203; P. P. Kavanagh ‘Stare Decisis in the House of Lords’ (1972–73) 5 NZWLR 323.

22. For instance, Jowett, S Dictionary of English Law (2nd edn, 1977) Vol 2, p. 1693 Google Scholar; Black's, Law Dictionary (5th edn, 1979) p. 1261 Google Scholar. SirMegarry, Robert, in his Miscellany-at-Law (1955) has a whole chapter, called’ The Trail of the Calf (pp. 304–332)Google Scholar on stare decisis in this sense.

23. R v Taylor [1950] 2 KB 368 at 371 (Lord Goddard LJ); Morrelle Ltd v Wakeling [1955] 2 QB 379 at 407 (Evershed MR); Scruttons Ltd v Midland Silicones Ltd [1962] AC 446, 469 (Lord Simonds); R v Gould (1968) 2 QB 65 at 69 (Diplock LJ).

24. By the middle of the eighteenth century it was being cited in the narrower sense, as if it were a familiar maxim: Ellis v Smith (1755) 1 Ves Jun 11 at 16 (Lord Hardwicke LC); R v Inhabitants of Underbarrow (1766) Burrow's Settlement Cases 548 (Lord Hardwicke LC); Keiley v Fowler (1768) Wilm 298 at 312 (Wilmot CJ). But it does not appear in any of the standard collections of legal maxims published from the sixteenth to the nineteenth centuries, such as Principia sive Maxima Legum Angliae (1546); Ashe's, T. Fasciculus Floris (1617)Google Scholar; Finch's, H. Law or a Discourse Theory (1627)Google Scholar; Bacon's, Lord Maxims (1630)Google Scholar; Noy's, W. Treatise of the Principall Grounds and Maxims (1641)Google Scholar; Wingate's, E. Maxims of Reason (1658)Google Scholar; Francis', R. Maxims of Equity (1728)Google Scholar, Capel Lofft's Colleiction of 651 maxims in an appendix to his Reports of Cases heard in King's Bench etc; Halkerston's, P. Maxims (1823)Google Scholar; Branche's, T. Principia legis et aequitatis (1824)Google Scholar and Broom's, H. Legal Maxims (1845)Google Scholar. It is not in the Digest (and indeed is not in the spirit of Roman Law: see, e.g. Buckland's Text Book of Roman Law, (3rd edn, 1966), nor the Sext (see Corpus Ius Canonici ed. A. Friedburg, Vol 2, p. 1122, De Regulis Iuris), nor in Erasmus' Adagiorum Chiliades (‘Thousands of Adages’) (1500) which by 1599 had run to 130 editions, nor in Manutius' Phrases Linguae Latinae(1579), nor in Coke (even in places where it might have been expected, such as Co Litt 379b or 4 Rep 93b), nor in Blackstone; it is not in the law dictionaries of either Rastell (1624) or Sheppard (1656) or Blount (1656) or Cowell (1658) or Jacob (1729). The earliest appearance in print (other than in the report of a case) that I have found is in the 3rd edition, by W. Moore - it is not in the 1st or 2nd - of D. E. Macdonnel's (non-legal) Dictionary of Latin Quotations, published in 1818, where it is given in a fuller form stare decisis et non quieta movere (with commentary ‘to stand by things as decided, and not to disturb those which are tranquil - it is advisable to act upon the ground of precedent and to resist all innovation’) and it is this form which has been used in several judgments in America: Ballard County v Kentucky Debt Commission 290 Ky 770; Willis & Turner v Moore & Davis 151 Tenn 562; Kimball v Grantsville 19 Utah 368. The phrase quieta movere appears in Sallust (Catalina c. 21, 1) but in the sense of ‘to create civil disturbance’.

25. For instance Lord Chelmsford in Mersey Docks and Harbour Board Trustees v Cameron(1865) 11 HL Cas 443 at 510; Jessel MR in Exp Willey (1883) 23 Ch D 118 at 127–8; Lord Upjohn in Governors of Campbell College, Belfast v Commr of Valuation for Northern Ireland [1964] 1 WLR 912 at 942; Salmon LJ in R v Bow Road Justices ex p Adedigba [1968] 2 QB 572 at 582; and in America, Brandeis J in Di Santo v Commonwealth of Pennsylvania (1927) 273 US 34 at 42.

26. Beal, E. Cardinal Rules on Legal Interpretation (3rd edn, 1924) p. 16 Google Scholar; Craies Statute Law (7th edn, 1971) p. 155.

27. For example by Lord Brougham in The Earl of Waterford's Claim (1832) 6 CI & F 133 at 172–5; Lord Westbury in Morgan v Crawshay (1871) LR 5 HL 304 at 320; Lord Halsbury and Lord Atkinson in Guardians of the Poor of West Ham Union v Guardians of the Poor of Edmonton Union [1908] AC 1 at 6–8; Lord Loreburn and Lord Atkinson in Hanau v Ehrlich [1912] AC 39 at 41, 43; Sachs J in Thompson v Nixon [1966] 1 QB 103 at 109 G.

28. I, 3, 37. Coke used a variant Optimus legum interpres consuetudo: 4 Co Inst 75.

29. 4 Co Inst 240; Holt CJ in Clay v Sudgrave (1700) 1 Salk 33, Eyre CB in Re Marquis of Tweeddale (1793) 1 Anst 143 at 154; Scott LJ in Re Warden and Hotchkiss Ltd [1945] Ch 270 at 274. Lord Ellenborough CJ proposed a revised version of this tag, communis opinio facit jus: Isherwood v Oldknow (1815) 3 M & S 382 at 396 and this was approved by Lord Goddad in Manchester Corpn v Manchester Palace of Varieties Ltd [1955] P 133 at 149.

30. 2nd edn, 1977, p. 441.

31. These are the ‘two important cases’ just mentioned.

32. (1873) 8 App Cas 658. For the full story of the case one must consult the Session Cases Reports (1879) 6 R (Ct of Sess) 756; (1880) 7 R (HL) 115; (1882) 9 R (Ct of Sess) 711; (1883) 10 R (HL) 77. The last corresponds to that in the Appeal Cases series.

33. [1964] 1 WLR 912.

34. The Clyde Navigation Consolidation Act, 21 & 22 Vict, c. 149.

35. (1882) 9 R (Ct of Session) 711 at 719.

36. (1883) 8 App Cas 658 at 670.

37. Loc cit, at 673.

38. [1964] 1 WLR 912.

39. Valuation (Ireland) Act Amendment Act, 17 & 18 Vict, C. 8.

40. 43 Eliz 1, c. 4.

41. 10 Car 1, Sess 3, c. 1.

42. A-G v Bagot (1861) 13 Ir CLR 48 at 60–61, per Fitzgerald B; The Commrs for Special Purposes of the Income Tax v Premsel (1891) AC 531 (HL (E) at 570, per Lord Herschell.

43. Valuation (Ireland) Act, 2 & 3 Gul 4, c. 73.

44. [1914] 2 Ir R 447. See also MrGahan v Commr of Valuation [1934] Ir R 736, Elliott v Commrs of Valuation [1935] Ir R 607, relying on this case.

45. [1964] 1 WLR 912 at 927.

46. He might, however, have noted that the minority in Pemsel, including Halsbury LC, favoured the non-technical, Irish (i.e. ‘poverty’) tradition of interpretation.

47. 2 Ir CLR 577:

48. [1914] 2 Ir R 447.

49. [1911] 2 Ir R 173.

50. At 941–3.

51. At p. 25 supra.

52. Lord Radcliffe seems to have been using the phrase in its traditional sense.

53. There is nothing particularly remarkable about such confusion. Thus in Magistrates of Dunbar v Dowager Duchess of Roxburgh (1835) 3 CI & Fin 335 at 354, Lord Brougham stated that’ where the statute uses a language of doubtful import, the acting under it for a long course of years may well give an interpretation to that obscure meaning and reduce that uncertainty to a fixed rule, optimus legis interpres consuetudo, which is sometimes termed contemporanea expositio..‘

54. The Interpretation of statutes (12th edn, 1969) p. 264.

55. In Earl of Waterford's Claim (1832) 6 CI & F 133 per Lord Cottenham at 172; Bourne v Keane (1919) AC 815 per Buckmaster J at 874; and Thompson v Nixon [1966] 1 QB 103 per Sachs J at 109–110. Lord Buckmaster is actually represented (at 269) as enunciating certain principles of contemporanea expositio although he never once referred to that doctrine in his speech, indeed he went out of his way to say that one case, West v Shuttleworth (1835) 2 My & K 684, heard a few years before the passing of the relevant Act, was wrongly decided.

56. From Holt CJ in Clay v Sudgrave (1700) I Salk 33.

57. Gorham v Bishop of Exeter (1850) 15 QB 52; Herbert v Purchas (1871) LR 3 PC 605; Martin v Mackonochie (1868) LR 2 PC 365; Ridsdale v Clifton (1877) 2 PD 276. But in R v Cutbush (1867) LR 2 QB 379, also cited in this context, the phrase is used by Cockburn C.J at 382, to describe an instance of stare decisis.

58. Op. cit. at p. 269.

59. See for instance the way the phrase is used at p. 71 of Maxwell.

60. The development was briefly noted by SirCross, Rupert in his Statutory Interpretation (1976) at pp. 45–7Google Scholar; Maxwell, Craies and Odgers, op. cit., must all now be considered out of date on this as on many other points. There is however a good discussion in Bennion, F. D. R. Statute Law (1980), pp. 124–9Google Scholar.

61. Properly speaking, the golden rule consists of the literal rule qualified by one, or perhaps more than one, condition, though this has sometimes been imperfectly understood, for instance by Lord Cranworth in Gundry v Pinninger (1852) 1 De G, M & G 502, at 505, inaccurately citing (as a ‘cardinal rule’) an earlier formulation. Some writers treat the rule as standing in opposition to, rather than as a modification of the literal rule, for instance Walker and Walker The English Legal system (5th edn, 1980) p. 104; Glanville Williams Learning the Law (11th edn, 1982) p. 106. Probably the most satisfactory statement of the rule was by Parke B in Becke v Smith (1836) 2 M & W 191 at 195, but the first recorded use of the phrase ‘golden rule’ seems to have been by Jervis CJ in Mattison v Hart (1854) 14 CB 357 at 385 (‘We must, therefore, in this case have recourse to what is called the golden rule of construction, as applied to acts of parliament, viz. to give to the words used by the legislature their plain and natural meaning unless it is manifest from the general scope and intention of the statute injustice and absurdity would result’). Lord Wensleydale used the phrase often: Grey v Pearson (1857) 6 HLC 61 at 106; Abbott v Middleton (1858) 7 HLC 68 at 115, and see remarks by Lord Blackburn in River Wear Commrs v Adamson (1877) 2 App Cas 743 at 764–5 and Caledonian Railways v North British Railway (1881) 6 App Cas 114 at 122. Lord Ellenborough CJ had called the rule itself ‘a rule of common sense as strong as can be’: Doe d Usher v Jessep (1810) 12 East 288 at 293, but it was often attributed to an Irish Judge, Burton J, in Warburton v Loveland d Ivie (1828) I Hud & B 623 at 648. It is notable that, by the early nineteenth century, judges were prepared to treat as ‘rules’ vague, prolix, variable, and above all novel statements in English which even fifty years before would have needed to come in precise, succinct, fixed and ostensibly established Latin maxims. The golden rule had classical ancestors: Benignius leges interpretendae sunt quo voluntas etiam conservetur; in ambigua voce legis ea potius accipienda est signtficatio quae vitio caret, pracsertim cum etiam voluntas legis hoc colligi possit (Dig. 1, 3, 18 and 19); etc (Artist Rhet I, xv, 4 ff). For a good modem statement of the rule, see Mackinnon LJ in Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1938] Ch 174 at 201. But Lord Esher did not care for the golden rule: ‘If the words of an Act are clear you must follow them, even though they lead to a manifest absurdity. The Court has nothing to do with the question whether the legislature has committed an absurdity.’R v City of London Court [1892] 1 QB 273 at 290.

62. 1 Ed 8 & 1 Geo 6, c. 6.

63. [1973] AC 854 at 861C.

64. [1975] AC 373 at 391F.

65. For instance R v Feely [1973] 1 QB 530 (‘dishonestly’ in s. 1 (1) of the Theft Act 1968, c.60); Evans v Godber [1974] 1 WLR 1317 (‘mooring’ in the West Sussex Byelaws made under s. 20(1) of the National Parks and Access to the Countryside Act 1949, 12, 13 & 14 Geo 6, c. 97); Maunsell v Olins, loc. cit. (’premises' in s. 18(5) of the Rent Act 1968, c. 23).

66. Thring, Lord H. Practical Legislation (1878) p. 32 Google Scholar.

67. 6 & 7 Gul 4, c. 37.

68. (1873) LR 8 QB 355.

69. 32 & 33 Vict, c. 73.

70. S.3 of the Act referred to a circumlocutory definition of ‘telegraph’ in the Telegraph Act 1863, ss. 26 and 27 (Vict, c. 112).

71. (1880) 6 QBD 244.

72. 42 & 43 Vict, c. 11.

73. [1980] 1 WLR 884. For other cases involving technical words, see 44 Digest (Reissue) 218–9.

74. 7 & 8 Eliz 2, c. 66.

75. The definition was, in fact, adopted from a passage in a judgment of Cockburn CJ in R v Hicklin (1868) LR 3 QB 360 at 371.

76. [1977] AC 699 at 719. There seems no reason why technical terms an general should not, in suitable instances, be treated as mobile. But to treat a legal technical term, a ‘term of art’, in this way would be to commit the logical fallacy of circularity.

77. [1973] AC 854.

78. [1976] QB 503. Though appearing in the Law Reports for the following year, the judgments in Brutus v Cozens were available to the Court of Appeal in this case.

79. Mr Right also it would seem: they had been living together for 21 years.

80. 10 & 11 Geo 5, c. 17.

81. The provision was replaced first by s. 3 of and Sch. 1 to the Rent Act 1968, c. 23 and then by s. 2 of the Sch. 1 to the Rent Act 1977, c. 42.

82. At p. 508.

83. ‘Would an ordinary man addressing his mind to the question whether Mrs wollams was a member of the family or not, have answered ‘yes’ or ‘no’? To that question, I think there is only one possible answer, and that is ‘yes’, per Cohen LJ at 395. An examination candidate is reported to have stated that in order to satisfy the requirement, a potential successor ‘had to show that he had had regular sexual intercourse with the deceased tenant’.

84. [1950] 2 KB 328.

85. Ibid., at 333.

86. lbid., at 331.

87. [1953] 1 WLR 1169.

88. [1976] QB 503.

89. At 509 D-F

90. At p. 34 supra.

91. At 511 B-512D

92. At 513 B-C

93. For instance in [1976] 39 MLR 222 (D. C. Bradley) and [1978] 31 CLP 81 (D. Oliver). However there were brief considerations of the point concerning statutory interpretation, sympathetic to the robust view, in (1979) 95 LQR 761 (P. V. Baker) and (1980) 96 LQR 248 at 265 (A. A. S. Zuckerman).

94. In strict law, Dyson must have been wrongly decided since at least three cases in which Lord Esher stated the principle were heard in the Court of Appeal: See p. 22 and notes 7, 8 and 9 supra. Though Lord Halsbury confirmed the principle in the House of Lords, in Corpn of Dublin v Trinity College (1903) 88 LT 305 at 306 the case was heard in the House's Irish Jurisdiction and so not binding in England. However, Sharpe v Wakefield was affd in the House of Lords: [1891] AC 173.

95. There had been a series of judicial pronouncements that the legislature was using words such as ‘family’ in a popular sense: ‘[t]he language used in [the Increase of Rent and Mortgage Interest (Restrictions) Act 1920] resembles that of popular journalism …’per Mackinnon J in Salter v Lask [1925] 1 KB 584 at 588; ‘the legislature had used the word “family” to introduce a flexible and wide term’per Wright J in Price v Could (1930) 46 TLR 41 1 at 412, approved in Brock v Wollams [1949] 2 KB 388, in Jones v Whitehill [1950] 2 KB 204 and, at one remove, in Langdon v Horton [1951] 1KB 666; Hawes v Evenden [1953] 1 WLR 1169 and Ross v Collins [1964] I WLR 425. However Price v Gould was not mentioned in Dyson at all, and Salter v Lask was not referred to in a judgment. ‘Family’ was also held to have had a ‘popular’ meaning in s. 3(3) of the Rent and Mortgage Interest Restrictions (Amendment) Act 1933, 23 & 24 Geo 5, c. 32: Standingford v Probert [1950] 1 KB 377; Darnell v Millward [1950] WN 567.

96. Assuming that Gammans v Ekins [1950] 2 KB 328 and its successors in the Court of Appeal, Langdon v Horton [1951] 1 KB 666; Perry v Dombowski [1951] 2 KB 420; Hawes v Evenden [1953] 1 WLR 1169 and Ross v Collins [1964] 1 WLR 425, were rightly decided, and that the Court in Dyson was bound by them - and neither of these propositions was contested in Dyson - then at some time between 1964 (the year of Ross v Collins) and 1976 (the year of Dyson), the meaning of ‘family’ had undergone a radical change. In fact, Dyson went further, since James and Bridge LJJ explicitly and Lord Denning implicitly held that the relevant date was the cause of action, that is 1961, when Mr Wright died, i.e., three years before an apparently valid decision to the contrary. The anomaly was pointed out by Oliver LJ in Watson v Lucas [1980] 1 WLR 1493 at 1503. Technically therefore, Dyson must be regarded as having been decided per incuriam on this ground also.

97. [1979] I WLR 13.

98. [1980] 1 WLR 1493.

99. [1979] 1 WLR 3.

100. [1979] 1 WLR 928.

101. Articles and notes dealing with those cases in the periodical literature have been mainly concerned with the substantive law: [1978] Conv 397 at 411, (1980) 43 MLR 77, (1980) 96 LQR 248 at 260–268. Remarks in (1979) 45 LQR 161 at 162 and (1980) 96 LQR 248 at 265–6 are not, in my view, conclusive: see Part (V) infra, pp. 41–2.

102. [1979] I WLR 13 at 16 G and 23 H.

103. Loc. cit. at 23 E, H.

104. Loc. cit. at 25 C-F.

105. [1979] 1 WLR 13.

106. [1979] I WLR 3.

107. See Watson v Lucas [1980] 1 WLR 1493 at 1497 G.

108. In the Court of Appeal, Megaw LJ at 8 E; Lawton LJ at 10 B; in the House of Lords, Lord Diplock at 930 B. Three of the other judges in the Lords agreed with the latter's speech without reservation.

109. [1980] 1 WLR 1493.

110. With a complication: the male cohabitor was still married to a woman he had abandoned, so the question arose whether a man could have two ‘families’ for the purposes of the Rent Act. It was held that he could.

111. See for instance the remarks of Stephenson LJ at 1501, B and R, of Oliver LJ at 1503 E and F and 1506 G and H, and of Sir David Cairns at 1507 E.

112. Pointed out with characteristic pungency by Sir Robert Megarry VC in (1958) 74 LQR 33 at 37: ‘The exception in Young's case… operates much as if a law giver were to say “You must follow and apply the existing law: but if in any sphere you fail to do so, whether or not by inadvertence, you are free thereafter not to follow the existing law in that sphere”.’

113. 20 & 21 Vict, c. 85.

114. Cloborn's Case (1630) Hetley 149; Evans v Evans (1790) 1 Hagg Con 35, per Sir W. Scott, later Lord Stowell; D'Aguilur v D'Aguilar (1794) 1 Hagg Ecc 773; Holden v Holden (1810) 1 Hagg Con 453; Otway v Otway (1812) 2 Phill Ecc 95; Neeld v Neeld (1831) 4 Hagg Ecc 263; Gale v Gale (1852) 2 Rob Ecc 421. For a summary of the old law, see G. Browne Law and Practice in Divorce and Matrimonial Cases (1864) Ch. 3. In the early cases, the word used was not ‘cruelty’ but ‘saevitia’, presumably to emphasise the technicality of the term.

115. D’ Aguilar v D'Aguilar, loc. cit.; Kirkman v Kirkman (1807) 1 Hagg Con 409; Kenrick v Kenrick (1831) 4 Hagg Ecc 114; see also Birch v Birch (1873) 42 LJ (P & M) 23.

116. Ciocci v Ciocci (1853) 1 Sp Ecc & Ad 121.

117. Tomkins v Tomkins (1858) 1 Sw & Tr 168; Cousen v Cousen (1864) 4 Sw & Tr 164; Milford v Milford (1866) LR 1 P & D 295; Birch v Birch, loc. cit.

118. for instance, Bray v Bray (1828) 1 Hagg Ecc 162.

119. [1895] P 315, CA; affd. [1897] AC 395, HL; see especially the remarks of Lopes LJ in the Court of Appeal at 322–3 and Lords Shand and Davey in the House of Lords at 463 and 467 respectively.

120. 15 & 16 Geo 5, c. 49

121. 1 Ed 8 & 1 Geo 6, c. 57.

122. 14 Geo 6, c. 25.

123. C. 72.

124. C.55.

125. 8 & 9 Eliz 2, c. 48.

126. C. 22.

127. For instance Gollins v Gollins [1964] AC 644; William v William [1964] AC 698; Le Brocq v Le Brocq [1964] 1 WLR 1085.

128. Bromley's, Family Law (4th edn, 1971) p. 156 Google Scholar.

129. Browne, G. and Powles, L. D. Law and Practice in Matrimonial Causes (6th edn. 1897) p. 125 Google Scholar. The first suggestion of ‘moral’ cruelty appears to have been in Kelly v Kelly (1869) LR 2 P & D 31; affd. 59, a case of Lord Penzance. But even there it was held that force, physical or moral, had to be exerted to compel the submission of a wife ‘in such a manner, to such a degree, and during such a length of time as to break down her health and render serious malady imminent’ (p. 32).

130. For instance Lord Evershed MR and Lord Hodson in Gollins v Gollins [1964] AC 644 at 670 and 683 and, more forthrightly, Harman LJ in Le Brocq v Le Brocg [1964] 1 WLR 1085 at 1089. Nowhere to my knowledge has it been suggested that when ‘cruelty’ was used in one family law statute it was intended to have a different meaning from the one it bore in the preceding statute.

131. [1966] 1 WLR 1234.

132. I hope shortly to publish a detailed analysis to justify what is said in this paragraph.

133. S. 70(1) of the Land Registration Act 1925, 15 & 16 Geo 5., c. 21, provides: ‘All registered land shall … be deemed to be subject to … the following overriding interests … (g) The rights of every person in actual occupation of the land …’

134. The original enactment of the provision summarised in the previous note was in para. 5(3) of Sch. 16 to the Law of Property Act 1922, 12 & 13 Geo 5, c. 16.

135. [1979] 1 WLR 440.

136. (1978) 36 P & CR 448. Both cases were heard by Templeman J (as he then was).

137. [1979] Ch 312; [1981] AC 487. The quotations are from the judgment of Lord Denning in the Court of Appeal, at 332, and the speech of Lord Wilberforce in the House of Lords, at 505. Lord Wilberforce was apparently extending his concept of the mobile statutory term to include legal technical terms, but as to this, see note 76, p.33 supra.

138. In Routhan v Arun District Council [1982] QB 502. Occupation of land was first used as a criterion for levying rates in s. 1 of the Poor Relief Act 1601, 43 Eliz 1, c. 2.

139. See the passage in the judgment of Bridge LJ in the Dyson case which was quoted supra at p. 36.

140. S. 3(1) of the Law Commissions Act 1965, c. 22, imposes a duty on the Commissions to take and keep the law under review ‘with a view to its systematic development and reform, including in particular the codification of such law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments … and generally the simplification and modernization of the law’. There have now been four Law Commission Working Papers on the Transfer of Land: nos. 32 (1970), 37 (1970), 45 (1972) and 67 (1976). In the third of these the problem of overriding interests was considered at length, and in place of s. 70(1) (9) of the 1925 Act (see note 133 supra) a new provision was proposed, but not perhaps such as to remove the difficulties emerging from the Boland decision. There seems no prospect of early legislation.

141. See ss. 45(1) and 46 of the Charities Act 1960, 8 & 9 Eliz 2, c. 58 concerning this phrase.

142. As it so nearly was in the Pemsel case: see note 46, p. 28, supra.