was performed; and it is brought avowedly to question in this Court of error the decision of the Queen's Bench in Chawner v. Cummings (a). If that case was well decided, the plaintiff cannot maintain the present action. The question turns entirely on the true construction of the statute referred to. There is a very old rule in the construction of statutes, that a remedial law shall be construed liberally, but a penal law strictly; and occasions sometimes arise where this rule is applicable, and may govern the construction; but, whether the statute be remedial or penal, it is the duty of the Court to ascertain its true construction, according to the language used, and with reference to the subject about which it is used, and to give effect to that which they discover to be the plain meaning of the legislature. The present statute is a very remarkable one it is extremely stringent and prohibitory; it interferes with the common law rights of masters and servants in making their contracts, and it is in some respects penal; it renders null any payment, however honest, and any set-off, however just and correct, if contrary to the statute; its general policy and object is not avowed and declared by the legislature; it is a collection of enactments to which we are bound to give effect, but which we cannot extend, under the notion of acting in the spirit of the statute; and the question is, does the statute in any of its enactments apply to the present case? There is nothing in the case before us to throw any doubt on the bona fides of the contract between the employer and the artificer. We must assume that this (a) 8 Q. B. 311. 1862. ARCHER V. JAMES. 1862. ARCHER V. JAMES. is not an arrangement to evade or defeat the statute, but is the honest agreement between the parties; and with that assumption, which I think we are bound to make, what are the wages of the plaintiff? Certainly not the entire sum claimed, for that includes matter which is not furnished by him, but by the master. Is, then, the agreement anything more than a detail of the manner in which the wages shall be calculated and ascertained? Or is the use of the machine a mode of payment? I think not. Suppose the marketable value of the article produced were made the basis of the calculation, and there were deducted from that, first, the material of which it was composed; then the other matters mentioned in this case, and the balance remaining were taken to be the wages due, could it be said that the workman was entitled to recover the full marketable value of the article as wages, and that the value of the material was a deduction from his wages prohibited by the statute. I should say, very clearly, no. And I cannot in principle distinguish the case before us from the case here supposed. The deduction of the value of the material from the marketable value of the article is so obviously a matter of plain justice, that I cannot conceive any one acquainted with the subject entertaining any doubt about it; and the benefit the workman derives from the use of the machine and the deduction made in consequence appear to me to stand upon precisely the same footing. I think, therefore, that the case of Chawner v. Cummings (a) was rightly decided, and that the judgment of the Queen's Bench ought to be affirmed. This Court being equally divided, the judgment of the Court of Queen's Bench will be affirmed. (a) 8 Q. B. 311. Hayes Serjt., for the plaintiff, asked what direction. the Court would give as to costs. POLLOCK C. B. The general rule is, that costs follow the affirmance of the judgment of the Court below (a). Is there any rule as to costs in appeals to the House of Lords when the Law Lords are equally divided in opinion? 1862. ARCHER V. JAMES. Cur. adv. vult. Feb. 3. C. G. Merewether said that the defendants did not ask for costs. In Easter Vacation, May 14, POLLOCK C. B. said. The Court being equally divided there will be no costs: the judgment of the Court below is affirmed without costs. Judgment affirmed without costs. (a) See Young v. Moeller, 6 E. & B. 681.. Notice of appeal to the House of Lords has been given. THOMPSON and others against The NORTH EASTERN In an action by the owners of a ship against the proprietors of a dock and tidal basin, made under the powers of an Act of Parliament, and for the use of which they were entitled to receive tolls, it appeared that the dock and basin were opened for public use on the 3d March, 1859. The basin opened into the river T. between two piers, distant 120 feet apart in constructing the basin a bank was put across it for keeping out the water during the excavation: when the excavation was completed, the operation of cutting through the bank was commenced, and, at the time of the accident to the plaintiffs' ship, a channel 70 feet wide had been cleared through the bank, opposite the middle of the space between the piers at the entrance of the basin: at the time when the dock was opened, the 70 feet channel had been excavated to about 3 feet 6 inches above the bottom of the rest of the basin, and the dredging of the channel was continued from that time until the plaintiffs' ship went out. The plaintiffs' ship, which was of 674 tons burthen, entered the dock on the 9th March, and, having received a cargo, went out on the 19th March under the charge of a river pilot, and, whilst proceeding through the basin, grounded on the bank. The channel was not marked by buoys or otherwise. The pilot, who had taken a larger ship out on the 8th March, knew the state of the basin. Held by this Court, and affirmed by the Exchequer Chamber, 1. That it was the duty of the defendants to take reasonable care to make their dock and basin safe for navigation before they opened them to the public; and therefore they were liable for negligence in opening them before the channel had been well cleared. 2. That assuming the knowledge of the state of the basin by the pilot to be the knowledge of the plaintiffs, it was no excuse for the defendants, inasmuch as they contended that the state of the basin was not such as to make it imprudent to take the vessel out; and the jury had negatived mismanagement on the part of those who had charge of the vessel. THE first count of the declaration alleged that the plaintiffs were the owners of a vessel called The New Zealand, then loaded with a cargo of coals, and that the vessel was about to proceed from Shields to Aden, and that the defendants were the owners of a dock and a basin called "The low water basin," constructed under an Act of Parliament, and received rates from vessels navigating the dock; and that the defendants, though they well knew that the said "Low water basin" was, by the irregular depth of the bottom thereof and of certain great accumulations and ridges of earth and stone across the same, in an unfit and dangerous state for vessels suffered and permitted by the defendants to navigate the same, did not take due and reasonable care to put the same in a fit state for that purpose, and negligently suffered the basin to be navigated whilst it was in a dangerous state, insomuch that the plaintiffs' vessel, whilst navigating the basin with her cargo, struck upon the irregular bottom and upon a ridge; and that the defendants further neglected their duty by suffering the basin to be open for navigation of vessels of the size and draught of water of the plaintiffs' when the basin was, as the defendants knew, in an unfit and dangerous state to be navigated by such vessels, and that by reason thereof the plaintiffs' vessel ran on a ridge. The second count alleged that the defendants did not take due and reasonable care in making and constructing the basin so as to be in a fit and proper state for vessels lawfully using the dock and passing through the basin, and that by their carelessness a large heap or ridge of earth and rock was left remaining in the basin, and that the plaintiff's vessel, whilst lawfully navigating the basin, ran on such rock or ridge. The third count was on an alleged promise on the part of the defendants, in consideration of the plaintiffs using the dock for their vessel and paying the rates, that the defendants would take reasonable care to keep and maintain the basin in a fit state to be navigated by the plaintiffs' vessel, and alleged that the vessel was lost through a breach of that promise. The defendants pleaded, to the first and second counts, that they were not guilty: and, to the third count, thirdly, a denial of the promise; fourthly, a denial of the [1860.] THOMPSON V. NORTH EASTERN Railway Company. |