Smith v Marshall [1907] HCA 33

OF AUSTRALIA. 1617

{HIGH COURT OF AUSTRALIA. }

SHALL AND OTHERS. 4 ; . APPELLANTS, DEFENDANTS,

AND

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

olidation of Statutes—Construction—Repeal of enactment modifying common H, ©. or A. law--Revival of previously existing law—Intention of legislature—Dower— 1907. Nature of right—Conveyancing and Law of Property (Supplemental) Act = ——

(W.8.1V.) 1901 (No, 37 of 1901), sec. 10. : oe . t 8, 9, See, 10 of the Conveyancing and Law of Property (Supplemental) Act 1901, "12, 13,

by repealing the Act 7 Wm. IV., No. 8, so far as it adopted the Imperial

Dower Act 3 & 4 Wm. IV., c. 105, did not revive the original common law as .bat0My to a wife's right of dower out of lands alienated by her husband during his Hissins JJ. "lifetime.

The repeal of an enactment altering the common law does not necessarily revive the common law that was displaced by the repealed enactment ; it merely raises a presumption that such a revival was intended. If the repeal- ing enactment is a consolidation, and it appears from it, or from other enact- - ments that may properly be read with it, that the legislature intended to leave the law as it stood at the time when the repealing enactment was passed, the presumption as to revival of the common law is rebutted.

The Wills, Probate, and Administration Act 1898, which consolidated the Probate Acts of 1890 and 1893, by express words, as to lands devised and as to Jands undevised, and by necessary implication as to lands alienated, destroyed the right of dower, and removed the basis upon which that right was founded, and thereby rendered unnecessary the previously existing Statutes on the 'subject, including 7 Wm. IV., No. 8; and, therefore, any presumption that the legislature, by repealing without re-enacting the latter Act in the Act of 1901, intended to revive the common law that had been displaced by 'it was negatived,