1862. ARCHER V. JAMES. is paid for in current coin, and the other otherwise than Again: could the defendants, in this case, in calculating the cost of the stocking heels, say that the first six dozen and a half had cost them nothing for labour, but only the use of the frame and machine, fire, light, &c., and the last sixteen dozen had cost them only labour, and nothing for their frame and machine, fire, light, &c.? That cannot be. Take the case of two carpenters-one, A., finds his tools, and is paid 3s. a day; the other, B., has them found by the master, and is paid 2s. 6d. a day; at the end of the week A. is paid 18s., B. is paid 15s. Has B. worked one day for nothing, or been paid for it by the use of the tools? I say neither. If not, would it make any difference that they were paid piece-work instead of day-work, and at the end of the week received, as before, 18s. and 15s. respectively? Again, I say, no. If not, would it make any difference that B. was to be paid piece-work at the same rate as A., with a fixed deduction of 3s. per week because the tools were furnished him? I cannot think it would. That is this case. In truth, the contract in its entirety between the parties must be looked at. The whole of the agreement of the master is the consideration for the whole of the agreement of the workman. The master is content to find the frame and machine, fire, light, &c., and let 7d. per dozen be taken as the price, if the workman is content to start with a fixed deduction of 3s. 9d. The workman is content to start with that fixed deduction if the master will find the frame and machine, fire, light, &c., and let 7d. a dozen be taken as the price. And, in truth, neither the first six dozen and a half is paid for by the use of the frame and machine, fire, light, &c., any more than the second or any other six dozen and a half. It might equally well be said by the plaintiff, when he makes twenty-two dozen and a half a weekthat is, three dozen and three quarters daily-and receives at the end of the week 13s. 1d. less 3s. 9d., "I have earned a sixth of 13s. 1d., that is, 2s. 24d. each day, but I have been paid only 1s. 63d. a day, which, at the rate of 7d. a dozen, shews that I have been paid in money for about two dozen five-eighths only, at 7d. a dozen; therefore I have made my first one dozen and one-eighth heels daily for nothing, unless paid by the use of the frame and machine, fire, light, &c. ;" or he might go farther, and say, "I work twelve hours a day, therefore I am paid nothing for the first heel and one-eighth in each hour, unless by the use of the frame and machine, fire, light, &c." In truth, no one part of his work is paid in a way different to any other. If he makes 1862. ARCHER V. JAMES. 1862. ARCHER v. JAMES. six dozen and a half only in the week, and so at the end receives nothing, I say that the master does not pay 7d. a dozen for them, nor does he get them for nothing. He has given to the workman the right to charge 7d. a dozen for all he makes beyond, and it might as well be said that the workman had the frame and machine, fire, light, &c., given to him for nothing as to all the heels made after the first six dozen and a half. If the workman does not avail himself of the right by making more, he has not the less had it. Suppose, by great skill and diligence, he made thirty dozen a week, is he not better off than the man paid at 5d. a dozen? Why? By having used the right. It is true that the quantity of work to be given is at the option of the master; but it is not contended that if the master contracted to give as much as the workman could do, the case would not be within the Act, but is because he does not so contract. That makes no difference in the question. I think this answers the arguments I have referred to, but I protest against those being taken to be real grounds because I cannot answer them; and I call attention to arguments in favour of the defendants which have received no answer, viz., that whatever can be argued of this case could equally be said of the man who works at 5d. a dozen, and that though the 3s. 9d. is arrived at in a particular way, the reasons in the minds of the master and workman may be entirely different; and there is no difference in principle between this case and one where 3s. 9d. had been fixed arbitrarily, and without reference to any basis of calculation, save that 7d. a dozen, less 3s. 9d., was a fair price. I am therefore of opinion that this case is neither within the letter nor spirit of the Act, and that there are collateral guides in the statute to the same conclusion. Independently of that, there is the case of Chawner v. Cummings (a), decided now more than fifteen years ago. Since that decision the practice described in this case has been adopted in the three great counties of the trade, though not uniformly. In Dalby v. The India and London Life Assurance Company (b), the Court of Common Pleas, speaking of a case cited, say, "Though we are quite satisfied that it was founded on a mistaken analogy, and wrong, we should hesitate to overrule it, though sitting in a Court of error, if it had been constantly approved and followed, and not questioned, though many opportunities had been offered to question it." They proceed to say that it has not been acted on, but disregarded, and they overrule it. Apply those remarks to this case. The Court was satisfied the decision was wrong, yet they would hesitate to overrule it if acted on. Can this Court be satisfied Chawner v. Cummings (a) is wrong? As to being acted upon, it has been so to an extent that makes the consequences of reversing it frightful to contemplate. The litigation will be enormous; the temptation to fraudulent claims by artificers who have no real cause of complaint against their masters, but who can bring their cases within the present, will be irresistible and most mischievous; and persons who have acted with perfect honesty and fairness, trusting to that decision, will find themselves, by its reversal, turned into criminals, subject to indictment (sect. 9), and liable to the oppression and extortion (a) 8 Q. B. 311. (b) 15 C. B. 365, 392. 1862. ARCHER V. JAMES. 1862. ARCHER V. JAMES. consequent thereon. If ever there was a case in which it was better to persist in a wrong construction of a statute (if this has been wrongly construed, which I deny), this is the case. For these reasons I think the judgment should be affirmed. I am not, that I am aware of, influenced by any prejudice against the policy of the statute, nor by any love for the character of a truck master. I think every right-minded man would wish the artificer to have his wages in the way they are most useful to him, viz. in coin, to do freely with them as he pleases; and though it may sometimes be beneficial that the master should keep a shop at which the artificer can be supplied, every reflecting person will see that is so liable to abuse that it may be better no one should be permitted to do it. Nor have I any prejudice in favour of the practice stated in this case. I think that the 3s. 9d. being fixed, though the work given to the artificer varies at the pleasure of the master, is very objectionable. I do not suppose, with my brother Hayes, there is any contrivance by which the wages of a particular trade can be permanently depressed below their natural price, but such an arrangement gives a power to harass and oppress, and practically defraud, mischievous in itself, and which, I think, no well disposed person would desire to possess. POLLOCK C. B. This action is brought, under the 1 & 2 W. 4. c. 37., to recover wages alleged to be unpaid in coin, and to have been stopped or deducted by reason of a claim of the employer against the workman for room, light, heat, and the use of the implement or machine by means of which the labour of the workman |