The Dorset County Express and Agricultural Gazette.
Dorchester, Dorset, England, 1883-10-30 00:00:00

VALLENCE V. PALLE.

At the Weymouth County Court on Thursday Me.
Serjcant T° a! Atkinson gays judgment in this owe
as follows
This is an action brought by the plaintiff, a seaman,
to remover from the defendant, the master of • steam
vessel, 1:25, for alleged damages arising from his
refusing to give the plaintiff • certificate of discharge,
to which he was entitled under the provisions of the
172nd section of the Horseheads Shipping Ant, 1854.
That section enacts that upon the discharge of any
seaman the master shall sign and give him a certificate
of his discharge, specifying the period of his service,
and the time and place of discharge ; and if he fails to
give such discharge shall incur &penalty sot exceeding
ZlO. The fact a the refusal by the defendant to give
such discharge in this cam is admitted, but it is con-
tended by his advocate. Mr. Howard, that the par-
ticulars of the plaintiff'. elnim show ao cane° of action,
and also that the provisions of the section under
which the present claim is framed give this Court no
jurisdiction to entertain the action, on the ground that
the statute which created the duty of giving a discharge
having imposed a penalty for its refusal, recoverable
before jtistioss • that is the only remedy open to the
plaiutiff, and diet a common law action will not lie.
the case of Couch v. Still, 23 Law Journal,
Queen's Bauch, 121, not been questioned, distinguished,
sad shaken by subsequent decisions, there would not
be much difficulty in deciding the action before me at
ono* in favour of the plaintiff. The case would, in
fact, be governed by the rule there laid down by Lord
Campbell, vie., " That wherever • statutory duty is
created any person who can show that he has sustained
an injury arising from the non-performance of that
duty can bring an action for damages against the
pawn, for whom the duty is imposed." The rule
Imre expressed in such broad and compre-
hensive terms was questioned in Atkinson v.
the Normals Waterworks • 2, Exchequer Division,
44, in which the plaintiff brought an action against
the defendants for not keeping their pipes charged
with water as required by the Waterworks Act,
whereby his premises were burnt down, and the Coast
of Appeal, reversing the decision of the Court belows
held that • statute which does not by implication
give to persona who may be injured by the brat&
of the duties thereby imposed any remedy over and
above which it gives in exprese terms, the person
Injured must have recourse to the statutory remedy,
and cannot maintain an action for damages. Apply-
ing the principle of this rule to the facts of the present
case the question arises—ls there anything in the
language and provisions of the statute which by
reasonable construction, expressly or by implication,
gives • remedy beyond that to he found in the 1720 d
section—namely, the penalty of ZIO for refusing to
give • certificate of discharge. In looking through
the provisions of the Act it will be found that the
only section which relates to the mode of enforcing
penalties and their application is the 54th, which
enacts "That any justice imposing any penalty under
the Act for which no specific applicstion is provided,
may, if he thinks fit, direct the whole or any part
thereof to be applied in compensating any pawn
for any wrong or damage which he may
have sustained by the Act, or default in
respect of which such penalty is
imposed.
The statute contains no specific application of the
penalty in this aim, and it was offered to the plaintiff
t make • complaint b3fore the justice' under the pro.
visions of the section, and obtain the compensation
therein provide I—namely, the whole, or such part of
the penalty the just'saes might, on considering the
facts, think it right to award. It appears to me
that by the ass of the term " compensation," the Legis-
lature contemplated that no other remedy than that
prescribed in the motion was to be given. it being in
suh.tance and in form at ones simple, efficient, and
in •apensive. In this case, after considering the argu-
ment+ cited, I am of opinion that the statute in this
cam, lisving created • liability not existing at common
law, ha, given • partiouler remedy for enforcing it,
and that the plaintiff must adopt the remedy given by
the statute, and not haviog dune so in this instance, a
non-suit must be entered.
After delivering ju Igment, his Honour said the only
question now was with regard to costs. If there was
an appeal—aid this was • matter of public import.
acre—c ssta would f dlow ; but if there was not lobe
an &Plate'. than be should deal with the question el
e's in an equitable spirit.
Me. Jol,ffe, plaint re solicitor, said in this case be
felt hie client had sustained considerable damage. Thee
hat endeavoured to get their certificate—
His Honour remindscl Mr. Joni& the only question
was if he warn in the wrong he should be corrected by
a higher Court if Mr. Jolliffe carried it there, but If
he was c ntented with his decision, he would deal
with the quo, lion of eons in another way. Unfortu-
nately for Mr. J..lllffe'a client, he had lost his time for
'To 'Tering penalties, as that must be done within six
months, whereas the p t action was • year old.
Mr. &sniffs said a c meliorable amount of corres-
pondence bad passed upon this subject, not only with
Mr. iloward, but also Mears. An trews, Barrett, and
Andrews, the defendant's ',Holton.
Mr. Howard said that If Mr. Jolline brought in any
question of fact., he must ask to be allowed t, do the
same. He had a splendid equity defence as well as •
legal one. The object of that cuticular statute was
that a seaman should sign in the presence of hia
captain, so as to prevent forgery and fraud, but in this
case they c odd never get the plaintiff to sign, or his
solicitor, so that the whole onus ol the refusal in equity
bad been upon Mr. Jolliff,'s client.
Mr. Jai& sail no 'rder was made to his client
until 12 months had elqued.

The queetiou of coett wee theo adjourned for
mouth. - -

There fru co other business of interest at the Court.

THE PROPOSED ROOlB.

.then public meeting with regard to these Rooms
was held at the Gilithail on Thursday evening. Tte
meeting was inn unwed for 6.30, but at that time there
was scarcely anyone present, and the meeting did not
commence until seven. Amongst those present were
—Captain chimmo. Mes.,P. J. H. Devenish, R.
Thomas, Rob-rtao, Denni., Proem, dlett, E.
L„,,,thw, if. 8,.t h r, el It ,we, W. J. P 1 mtn tn W.
M. TAN:4ton, W. hint, (1. Read, Ittirths,
T. Foch.. J. 11. N &
-

If mg the prvn.iti ,t 1 of Mr. DIVOTIBII, second,d
by BILr. DENNim. It 141 (Minna.> took the ohalr.
Captain in th, course of tin able 'peacb.
said that beini: ,to ir second meeting on the subject he
had taken t't • lib ty of writing oat cud studying
what be intsnde ' avig bef .1, thew, fo• he thottatt
that where a spe.k.r was oath .r fluent and far [um
alocluset It was far to,.re satisfactory In every way.