Hewlett v. Allen & Sons, App. very similar in its circumstances to the present case; in fact, there is no substantial difference between that and the present case. We are of opinion that the plaintiff has not made out her right to recover the deductions which have been made from her wages, and applied with her consent to the club. It makes no substantial difference that she has not been thrown on the club. It is true she has had no benefit from it, but she would have had it if she had been ill. It makes no difference that the money is payable at her death; it is substantially a sick and medical club; and it is a mere accident that she has received no benefit. The judgment of the learned County Court Judge will therefore be reversed, and the appeal allowed, with costs. CHARLES, J.-I have come to the same conclusion. The case involves questions under the Truck Acts, and is based on a contract in writing. The principle of Lamb v. The Great Northern Railway Company (2) is applicable to this case. The employer in that case was authorised to make certain deductions, and to apply them not only to a sick or medical attendance fund, but also to a funeral allowance fund. The contract in that case was undoubtedly within the protection of the 24th section of the Truck Act of 1831. It is true that in that case the plaintiff had the benefit of the sick fund. That, in our opinion, makes no difference. The principle is that it is a contract to contribute to a sick fund, which is substantially a contract to contribute to medical attendance. It is contended here there is no contract that the employer is to be at liberty to make deductions, but that the contract is that the plaintiff shall merely conform to the rules of the defendant company. No doubt, according to Pillar v. The Llynvi Coal and Iron Company (3), there must be a contract in writing. Here there is a contract in writing, which, when read with the rules of the defendant company, is really a contract authorising the employer to make the deductions. Then it is said, even if there be such a contract, the deductions which have been made are (3) 38 Law J. Rep. C.P. 294; Law Rep. 4 C.P. 752. not within the protection of sections 23 and 24 of the Truck Act of 1831, inasmuch as they were in respect of accident and death money. But there is no substantial difference between that and a sick and funeral allowance fund, as in Lamb's Case (2), by the decision in which this case is covered. Moreover, the weekly tickets amounted to evidence of the request and consent on the part of the plaintiff that these sums should be, and were, in fact, paid. On both these grounds, therefore, the appeal should be allowed, with costs. Appeal allowed; leave to appeal given. The plaintiff appealed. Corrie Grant and Compton Smith, for the plaintiff. The judgment of the learned County Court Judge was right, and should be restored. The deductions, except in so far as they were for medicine and medical attendance, were illegal. The effect of ductions illegal, unless they come within the Truck Act, 1831, is to make all dethe exception in section 23 of the Act— Lamb v. The Great Northern Railway Company (2), per Smith, J., and Cutts v. Ward (4), per Blackburn, J. The artificer is entitled to be paid his full wages in current coin of the realm. In the present case, except as to the 6s. 9d., none of the deductions came within section 23 of the Act. Even if the sums paid over to the fund are not strictly deductions from wages, they are payments which are void under section 2 of the Truck Act, 1831, and section 6 of the Truck Amendment Act, 1887. [Pillar v. The Llynvi Coal and Iron Company (3) and Ex parte Cooper; in re Morris (5) were referred to.] Finlay, Q.C., and Crispe, for the defendants. It is submitted that primarily the deductions in the present case fall within the exception in section 23; but, assuming that they are not within that section, it is contended that they are not illegal within the Truck Act, 1831. They do not fall within the mischief against which that Act was directed. The object (4) 36 Law J. Rep. Q.B. 161, at p. 164; Law Rep. 2 Q.B. 357, at p. 362. (5) Law Rep. 26 Ch. D. 693. Hewlett v. Allen & Sons, App. of the Act was to ensure the payment of wages in current coin of the realm. This is clearly shewn by section 4 of the Act, where the word "actually" there, as also in section 3, has reference only to the mode of payment-namely, in current coin-and does not mean that the coins shall actually be paid into the hands of the artificer himself. The case of In re Morris; ex parte Cooper (5) shews that the employer may, at the request of the artificer, make the payment to another person. The payments, therefore, by the defendants to the sick and accident fund were not illegal; they were made at the plaintiff's request; and the defendants are entitled to rely upon them as a defence by way of set-off or counter-claim, or otherwise, to the plaintiff's claim. The prohibition in section 5 of set-off in the cases there specified implies that set-off may exist in other cases. Cur. adv. vult, BOWEN, L.J. (on August 10, 1892), read the following judgment, in which Lord Esher, M.R., concurred: This case raises a very important enquiry as to the meaning and construction of the Truck Acts, and more particularly of sections 2, 3, 4, and 23 of 1 & 2 Will. 4. c. 37. The plaintiff was at different periods, ranging over some years, in the employ of the defendants, who are proprietors of large confectionery works, and her action was brought to recover arrears of unpaid wages amounting to 1. 13s. 7d. The contention of the defendants is that the sums sued for are deductions which represent payments made with the plaintiff's consent during the period of her service to a sick and benefit society in connection with the works, and that such deductions either are excepted by section 23 from the general scope of the Act, or else are payments made at her request to a fund under circumstances which would constitute a defence for the defendants by way of setoff, or counter-claim, or otherwise. The case was heard before the County Court Judge. At the hearing the plaintiff withdrew from her claim the sum of 6s. 9d., which represented contributions for medicine and medical attendance, and the Judge directed judgment to be entered in her favour for the residue, 11. 68. 10d., on the ground that the defendants, by reason of the Truck Acts, could not justify the retention or deduction of the latter sum. The Divisional Court reversed his judgment, and the appeal has been brought by leave from their decision. The clear intention of the Truck Acts was to insure to workmen the payment of the entire amount of their wages in actual current coin of the realm, unfettered by any promise or obligation that it should be spent in any particular manner or at any particular shop. The Legislature endeavoured to secure that the workman might have in his hand the very actual coin representing his wages, in order that he and his family might freely carry it home, or expend it without impediment in the open market. Subject to certain exceptions to be considered hereafter, such was (speaking broadly) the object of this legislation. The Truck Act of 1831-with which alone, for the practical purposes of this case, we need concern ourselves, for the statute of 1887 does not substantially differ so far as this case is concerned-attempted to enforce this object by rendering illegal every payment, or contract for payment, of wages except in the mode provided by the Act. One head of sections imposed penalties upon all those who made such illegal contracts or payments. Another class of sections, the range of which was not altogether commensurate with the former, gave the right to the workman to recover the arrears of wages not actually paid over in coin, while it prevented the employer from setting up in answer to such action some rights of set-off of which he might otherwise at law have availed himself, while, on the other hand, other rights of set-off were still left available to the employer. It is on the effect of this latter portion of the legislation, and the similar provision in the later statute, that this appeal, in our view, turns; and the present case depends mainly on the exact extent to which an employer's ordinary defence to an action at law has, in circumstances like the present, been interfered with by the Acts. The portion of the Act which deals with penalties is, nevertheless, worthy of consideration, since it may throw some light on the entire scope of Hewlett v. Allen & Sons, App. the Acts, as also on the construction of special parts of them. After reciting that it is necessary to prohibit the payment (in certain trades) of wages in goods, or otherwise than in the current coin of the realm, the statute (1 & 2 Will. 4. c. 37), by section 1, enacts that if in any contract the whole or any part of a workman's wages shall be made payable in any other manner than current coin of the realm, such contract shall be illegal, null, and void. The same fate is (under section 2) to befall any contract in which any provision, directly or indirectly, is made respecting the place where, or the manner in which, or the persons with whom, the whole or any part of the wages shall be laid out or expended. These two first sections of the Act prohibit contracts which infringe on the prescribed limitations. Section 3 deals, not with contracts, but with actual payments. The entire amount of the wages earned, it provides, "shall be actually paid to such artificer in the current coin of this realm, and not otherwise"; and every payment made to such artificer by his employer of or in respect of any such wages by the delivery to him of goods or otherwise than in the current coin aforesaid (except in certain excepted cases) is declared to be illegal, null, and void. Section 8 contains an exception in the case of bank-notes and drafts on neighbouring bankers; and section 23 a further exception in respect of specific deductions which are declared to be legitimate. Section 10 deals with penalties on offenders against the Act. Pausing here to consider what payments have been prohibited by the statute, we find that in order to be valid the payment to a workman must be of the entire amount of the wages due, and that it must be actually paid to the artificer in current coin of the realm, excepting in the excepted cases of bank-notes and cheques (section 8), and of specific deductions (under section 23). The statute insists (in all but the excepted cases) on actual payment in coin. Payment in account will not do. Payment in goods will not do. Nothing is to discharge the wages debt except actual payment in current coin. The first gloss, or interpretation, which we think principles of sound construction (in a highly penal Act) require us to adopt is that the payment will not be invalid simply because, instead of being made to the artificer himself, it is made to anybody lawfully and bona fide appointed to receive it as his agent. It cannot have been intended, where what is paid over is current coin of the realm, to make it a penal offence to pay such current coin to a man's wife or child instead of to the man himself. The principle of the common law is that what is paid to a man's agent lawfully authorised to receive it, is paid, in the eyes of the law, to himself; and although the language of a statute may, of course, provide that none but an actual personal payment shall suffice, unless this intention is to be discovered in the statute, the ordinary rule of the law applies. The point at which the statute aims appears to us to be that the entire amount should be paid in coin, and the statute has not interfered with the ordinary doctrine that what is paid to a man's agent is to be treated as if it were paid to himself. It is hardly necessary to observe that (since the Act prescribes payments in coin) deductions made by the employer, whether authorised by the workman or not, are not and cannot be payment to the workman in current coin of the realm. The employer cannot, for the purpose of compliance with the statute, be both payer and payee. To hold otherwise would be to make the statute idle. Secondly, it is to be observed that the legislation as to contracts for payments runs parallel to and is commensurate with the legislation as to payments. If the payment is in an illegal shape, the contract to make it in that shape is also declared not merely null and void, but also illegal. The result is that when such illegal contract has been made, an offence against the Act has been committed; and the other doctrines of English law applicable to illegal as distinct from merely voidable contracts follow. Not merely cannot such a contract be enforced, but the contract cannot by itself give rise to any right, or be vouched as an authority for any act done under it. far we have dealt with the prohibitory portion of the Act. We pass next to those provisions of the Act which affect directly civil litigation, and the defences So Hewlett v. Allen & Sons, App. open to an employer who is sued for all the arrears of wages which he has not actually paid in current coin. This part of the legislation begins with section 4, by which it is enacted that every artificer shall be entitled to recover from his employer so much of his wages earned as shall have not been actually paid to him by his employer in the current coin of the realm. The effect of this section by itself would be that in any action brought to recover the wages an employer could not plead as "payment" anything but an actual payment in current coin, save only in the cases excepted in other sections of the Act. But it is manifest that, if no further provision was to be made, an action by workmen for such arrears might be barred, and the objects of the statute defeated, by other defences which at law would be left open still to the offending employer. The employer might, for example, have supplied goods to the amount of the wages deducted, or the workman might, by virtue of an express or other agreement with his employer, have taken some consideration other than goods in place of the wages, or have authorised the employer to spend the money in some way which, though not payment in actual coin, might, in an action to recover the arrears of wages, be set up by way of legal or equitable set-off, or used as a counter-claim to the action. Section 5 accordingly follows section 4, and is a section devoted to limiting a possible right of set-off. It will be seen that it extinguishes such right of set-off only in certain cases, leaving rights of legal and equitable set-off untouched in all other instances than those specifically mentioned. It is provided in the section that in such actions to recover wages due "the defendant shall not be allowed to make any set-off, nor to claim any reduction of the plaintiff's demand by reason or in respect of any goods, wares, or merchandise had or received by the plaintiff as or on account of his wages or in reward for his labour." The price of the goods in virtue of which the unpaid wages were deducted cannot accordingly be set off. But the section goes further, and debars the employer also from any set-off arising out of the sale to his workman of any other goods supplied at any other time, either by the employer's own Hewlett v. Allen & Sons, App. subscription to the fund proportioned to the weekly wages of each contributor. By virtue of this contract a proportionate deduction was in fact made each week from the plaintiff's wages, which was carried or paid over to the fund on her behalf. In what manner the deduction found its way into the fund is not clear, since the defendants called no witnesses before the County Court Judge; but it was stated to us, and did not appear to be disputed, that the deductions were taken each week to the secretary of the fund, who paid them into an account kept at a separate bank by one of the defendants' firm acting as treasurer to the fund. That the plaintiff herself knew of the deductions being made was evident, inasmuch as she had been for years in the defendants' service, during which period she had twice left. and twice returned and re-engaged herself, signing on each occasion the agreement above referred to. It is at this stage desirable to brush away one or two legal points which might otherwise obscure the exact point of law we have to decide. It was not argued before us that the deductions made from her wages were only another mode of calculating her wages which took the case outside the Truck Act altogether (as in Chawner v. Cummings (6) and Archer v. James (7)). The defendants' counsel, on the other hand, urged upon us the argument that the deductions made came within section 23 of the Act. This latter point seems to us untenable. The proportion of the arrears attributable to payments for medicine and medical attendance was struck out of the plaintiff's claim in the County Court, and the other objects. of the fund-namely, insurance against sickness, accident, and death-are not within section 23. The defendants' case therefore depends, not on the construction of section 23, but on the effect of the earlier clauses of the statute. It is clear, to begin with, that the contract between the defendants and the plaintiff that these deductions should be made was an illegal contract in question be even not within section 2 of the former and section 6 of the later Act, it appears to us still to be illegal under section 1, as being a contract that the wages shall be paid otherwise than in current coin. No justification can therefore be found in the signed contract for anything done under it. That the plaintiff has not actually received her entire wages in current coin of the realm seems obvious. Has there been any actual payment in current coin of the realm to any one at all? On the evidence this seems most doubtful, and a mere show of passing current coin from the firm to the secretary of the fund would not necessarily satisfy a Court or a jury that current coin was actually paid by the defendants to an agent of the plaintiff lawfully authorised to receive it. An offence against the Act has therefore to all appearance been committed, for the burden lay on the defendants to shew the actual coin payment, and they have not chosen to call witnesses. But, although an offence against the Act may have been committed, it remains still to be ascertained whether in a civil proceeding the employer in this case may not have an answer to the plaintiff's claim by way of set-off, counter-claim, or otherwise. No notice of set-off or counter-claim was given. But we should not allow justice to be defeated upon a mere defect of pleading, and the matter in the Court of Appeal must be treated as if all facts had properly been pleaded which are undisputed in the case. The question, therefore, arises whether the defendants are entitled on the facts of this case to say that, although an offence against the Act may have been committed, nevertheless the deductions from the plaintiff's wages have been disposed of with her consent in a manner which she cannot now impugn after the lapse of years. The defendants having called no witnesses, we cannot properly assume in their favour that the deductions were lodged in the hands of any third person for the purposes of the fund. We think, however, that having regard to the rules and the balance-sheet put in by the plaintiff, and the manner in which the case has been conducted, we must infer that a fund has been honestly and actually set aside in the defendants' |