of drama or music, the penalty is fixed by 3 & 4 Will. 4, c. 15, at not less than £2 for every performance, or the full benefit arising from the performance, or the injury or loss sustained to the plaintiff therefrom, whichever shall be the greater damages, together with double costs of suit, to go to the author or proprietor.

Under the Patent Act, 1883 (46 & 47 Vict. c. 57), ss. 58 and 59, the penalty for infringement of designs is to be not more than £50 to the registered proprietor, to be recovered as a simple contract debt; and notwithstanding the penalty, he may, if he elect to do so, bring an action for damages.

The somewhat intricate question as to what constitutes an infringement of the rights under these statutes does not come within the province of this work, but will be found fully discussed in the text-books dealing with the subject.

The examples of the different penalties which we have given are, however, sufficient to illustrate the object of the legislature in fixing the limit where it is possible, or at least the measure

of the damages recoverable by the party aggrieved. One bus

LondonOmnibus

consideration we shall find not unfrequently depends on the Co., post, p. 198.] station of the person on whom the duty is cast, and a penalty smaller perhaps than the damage actually sustained is given to the party aggrieved on this account.

In the next two cases we have instances of the violation of Relative

a relative duty and breach of its correlative right.

duties.

In Vallance v. Falle the question arose under sect. 172 of 13 Q. B. D. the Merchant Shipping Act, 1854, by which it is provided 149. that on discharge of a seaman the master of the ship is to give him a certificate of discharge. A penalty of £10 is affixed for the refusal; "the whole or part to go to compensate the seaman if he has suffered damage, or to the payment of expenses, or to the Crown." The plaintiff, although he had suffered more damage than £10 would compensate him for, Iwas held not entitled to recover more. There can be very little doubt that this was not a Crown penalty purely.

In the well-known case of Stevens v. Jeacocke the same

11 Q. B. 741.

Public duties.

14 Q. B. D. 209.

2 Q. B. D. 271.

question was discussed. The case, however, cannot be fairly understood by the report alone, without reference to the statute. The pilchard fishery in a certain arm of the sea was made the subject of statutory regulations, a proper turn and station being allotted to each fisherman. A. fished out of his turn and caught fish which would otherwise have come into B.'s seine. B. suffered loss by A.'s breach of the statutory duty (which was clearly a relative one), but was held not entitled to recover damages in respect of it. There was a pecuniary penalty provided, to go equally between the St. Ives fishery fund and the informer; "and if any fish should be taken out of turn, they were to be forfeited to the fisherman whose turn had been infringed." There is no doubt that the plaintiff's case was thus specially provided for by the statute; and though this special remedy was not alluded to in the judgment, it is clear that the learned judge had that in his mind, and not the pecuniary penalty, when he said, "If any infringement of a right was shewn, it was one in respect of which a specific remedy had been given."

We now proceed to the examination of cases in which there has been a breach of a public duty.

In Manchester Ry. v. Denaby Main Co., a breach of the Railway and Canal Traffic Act, 1854, s. 2, was alleged. Sect. 3 provided a remedy for parties complaining, and sect. 6 prescribed that "no proceeding shall be taken for any violation or contravention of the above enactment, except in manner herein provided." Consequently an attempt to recover in respect of the peculiar injury which arose from the breach of the public duty failed.

In Wright v. London Omnibus Co. the question arose under the provisions of 6 & 7 Vict. c. 86, s. 28, against furious driving of hackney carriages. The penalty against the driver fixed. by the Act was £3; "and where any hurt has been caused the justice may adjudge as and for compensation to any party aggrieved not more than £10." The plaintiff was run over,

prosecuted the driver and accepted the £10 compensation.
He afterwards sued the driver's master for further compensa-
tion, because he had suffered a greater amount of damage.
Cockburn, C.J., held that as against the master the matter
was res judicata, because the liability fell either on the master
or the servant, but not first on one and then on the other.
the servant's liability were accepted that must be taken sub-
ject to the limit imposed by the statute; this limit would of
course not apply if the master's liability had been first
accepted.

If

: "Joint

Tortfeasors,"

P. 47-1

In Watkins v. Great Northern Ry. Co., the railway had 16 Q. B. 961. power to obstruct a public road; but if they did so, the duty of making another road was cast on them. The Act provided, besides the usual compensation clause, a penalty in case of breach of this duty to the trustees of the road, or owner if a private road; and allowed a party aggrieved to bring an action if specially damaged. The Court held that an action would not lie unless some special damage were alleged.

In Boyce v. Higgins, an action was under the Public Health 14 C. B. 1. Act, 11 & 12 Vict. c. 63, s. 19, which provided a penalty against a member of a local board acting when he participated in the profits of a contract; by sect. 133 proceedings for recovery of the penalty were not to be had or taken by any person other than the party grieved without consent in writing of the Attorney-General. The "party grieved" was held to mean a person specially damaged.

In Gray v. Pullen, the facts of which have already been 5 B. & S. 970. considered, the Exchequer Chamber held that an action could [ante, p. 93. be brought, although the work had been done negligently by

a contractor, and that the penalty was only a cumulative remedy.

This concludes the third and last division of the subject.

The results of the three divisions may now be summarised, as follows:

General sum

(1.) For the violation of statutory rights (whether in rem mary.

L. R. 6 Ex:

404.

or in personam), or for the breach of statutory private duties, an action will lie for damages.

(2.) If a remedy is given by statute for the purpose of enforcing the obligation, that is the only remedy which can be used for that purpose; but the giving of this remedy does not take away the right to sue for (at least past) damages.

(3.) If a remedy or penalty is given by the statute to the owner of the right for a violation of the right, the action for damages is taken away.

(4.) If a penalty is given by the statute to the Crown or a common informer, the action for damages for a violation of the right is not taken away.

(5.) For a breach of a statutory public duty the punishment is by indictment.

(6.) If a Crown or common informer's penalty is given in the statute for breach of the public duty, the punishment by indictment is taken away.

(7.) If a person has been specially damaged by the breach of the public duty, he has an action for damages at common law.

(8.) If a penalty is given by the statute to the party aggrieved by a breach of this duty, this common law action is taken away.

(9.) Where it is possible, any of the above rules may be applied simultaneously.

§ 4. THE EFFECT OF THE DECISION IN Atkinson's Case.

We propose now to consider how these rules are affected

2 Ex: D. 441. by the decision of the Court of Appeal in Atkinson v. Newcastle and Gateshead Waterworks Co.

Facts of the case.

The facts were shortly as follow:-The water company was required by the Waterworks Clauses Act, 1847, to keep their pipes so charged as to ensure a proper supply of water in the fire-plugs to reach the highest storey of the highest house in the area supplied. A fire occurred in the plaintiff's house;

there was not a sufficient pressure at the fire-plug, water could not be obtained to extinguish the fire, and the house was burnt down; the action was then brought to recover damages resulting from the breach of the statutory duty. There was a Crown penalty provided in the statute, but not a penalty to the party aggrieved. The Court of Exchequer held that the case was concluded by the authority of Couch v. [ante, p. 194.] Steel, which in its turn had been decided on the authority of Rowning v. Goodchild; that is to say, that there had been a [ante, p. 191.] public duty cast on the defendant company (Baron Bramwell considered it a private duty: and in point of fact, the area of

the duty was limited in the same way as that in Harrop v. [ante, p. 158.] Hirst); that there had been a breach of that duty; and that the plaintiff having been specially damaged had a common law right to recover such damage, which was not taken away by reason of the imposition of a Crown penalty, and which still existed by reason of no penalty having been provided for the benefit of the party aggrieved. Judgment was therefore given for the plaintiff.

The defendant appealed, and the Court of Appeal (Lord Cairns, C., Cockburn, C.J., and Brett, L.J.) reversed the judgment of the Court below.

decision in

C. A.

The principle of the decision is to be found in the Lord Grounds of Chancellor's judgment, and may be shortly stated to be as follows:-The duty to keep the fire-plugs charged was a public duty; the guarantee taken by Parliament for the fulfilment of this duty was the public penalty of £10; the 43rd section (see below) made it apparent that it was no part of the scheme of the Act to create any such right as that claimed in individuals with a power of enforcing that right by action; and that on the construction of that section, "there being in a certain number of cases" [in which other duties were laid down] "a penalty which the plaintiff himself admits excludes the right of action, the conclusion is irresistible that in the remaining cases also in the same section the legislature intended to give no right of action." Lord Campbell's proposi- [:p. 194.]