are applicable thereto, except so far as expressly varied by the special act. of company, By the 91st section of the Companies Clauses Consolidation Binding if Act, 1845, the determination as to the remuneration of the within scope secretary of a company is to be exercised only at a general meeting. But it is no answer to an action by a secretary for his salary, that no determination as to such salary has ever been exercised at any general meeting of the company (1). It may be a breach of trust as between the directors and the shareholders to agree to give the secretary a salary without the authority of a general meeting, but yet the company may be bound to pay it. The principle of this decision is an important one, and is in conformity with the cases in which it has been held, that a joint stock company registered under 7 & 8 Vict. c. 110(m) was liable upon a contract within the scope and objects of the company bona fide entered into by the directors under seal, but not though not in conformity with the provisions of the deed of settlement of in conformity the company. If such a contract were illegal, of course it settlement, would not be binding (n). with deed of if not illegal, And although, generally speaking, where the seal is affixed to a contract made by a corporation in a manner binding upon them, the contract is the contract of the corporation, to be governed by the same rules of law as the contracts of private persons: yet, where a corporation is created by an Act of Parliament for particular purposes, with special powers, the contract does not bind them if it appear by the express provisions of the statute creating the corporation, or by necessary and reasonable or ultra vires. inference from its enactment, that the contract was ultra vires, that is, that the Legislature meant that such a contract should not be made (o). be sued in In modern times, also, another anomaly has been introduced Public trusinto the law, which may not improperly be adverted to in this tees, &c. may place, viz., that persons acting as trustees for public purposes, name of visiting justices and the like, may contract, though not bodies clerk. corporate, without rendering themselves personally liable, and may sue and be sued in the name of their clerk or secretary. This, no doubt, leads to difficulties; but it has become familiar, and it is perfectly well settled, that judgments so recovered are (1) Bill v. Darenth Valley Railway Company, 1 H. & N. 305; S. C. 26 L. J., Exc. 81. (m) This act is repealed by 19 & 20 Vict. c. 47, s. 107; 20 & 21 Vict. c. 14, s. 23, except as to insurance companies, 20 & 21 Vict. c. 80. (n) Agar v. Athenæum Life Assurance Society, 3 C. B.,N. S. 725; S. C. 27 L. J., C. P. 95; Prince of Wales Assurance Society v. Athenæum Assurance Society, 27 L. J., Q. B. 297, and cases there cited; Re Athenæum Life Assur- (o) South Yorkshire Railway Hall v. Taylor. Local Commissioners may be sued for salary of clerk. Power to appoint servants with not to be enforced otherwise than by mandamus, or bill in equity (p). And accordingly, in a case (q) where commissioners, who were elected annually under a local act, and were authorized to carry out its provisions for the internal management of a town, were empowered to appoint a clerk and other necessary officers, and to pay them reasonable salaries out of the monies to be raised by rates and tolls: they were to sue and be sued in the name of their clerk, who was to be reimbursed all costs and expenses out of the same fund, and not to be personally liable for them; power was given to them to enter into certain specified contracts; no power was expressly given to them to retain an attorney, but the nature of their powers would render legal assistance necessary, and the plaintiff was appointed clerk by one set of commissioners, no salary being mentioned, and reappointed next year, by the succeeding commissioners, at a fixed salary, and he also did business within the scope of the act for the same commissioners on their retainer: it was held, that he might maintain an action of contract against the commissioners for the time being, in the name of their clerk, for the services thus rendered to former commissioners. It has been decided, that where the special Act of Parliament gave power to the directors of a company to appoint servants out seal only and workmen, &c., without using the corporate seal, they could applies to only exercise that power with regard to the appointment of ordinary servants; and that it did not extend to enable them to enter into a contract for extraordinary services, which would be binding upon the company, without affixing the corporate seal (r). ordinary servants. Railway The question as to how far the directors of a railway company had power, under their special act, to appoint serCox v. Mid- vants otherwise than by deed was raised in the case of Cor v. land Counties The Midland Counties Railway Company (s), and the court, in giving judgment (t), intimated an opinion that, under their act, they probably did possess the power; but it became unnecessary to decide the point on that occasion, as it was held that, assuming the servant in that case to have been properly appointed, yet that he had not power to bind the company by entering into the contract on which the action was brought. It has been laid down by all the judges in the Exchequer Chamber (u), that it is the duty of a company carrying on Trading company bound to have authorized officer on the spot. (p) Kendall v. King, 17 C. B. 510. The mere fact that they have no funds would not prevent the plaintiff recovering judgment in the action. Ibid. Wormell v. Hailstone, 6 Bing. 668; Emery v. Day, 1 C. M. & R. 245. (q) Hall v. Taylor, 1 E. B. & E. 107; S. C. 27 L. J., Q. B. 311. (r) Cope v. The Thames Haven Dock and Railway Company, 3 Exc. 841; see Diggle v. The London and Blackwall Railway Company, 5 Exc. 442; East London Waterworks Company v. Bailey, 4 Bing. 283. (s) 3 Exc. 268. (u) Giles v. Taff Vale Railway Company, 2 E. & B. 822; and see Birkett v. The Whitehaven Junction Railway Company, 28 L. J., Exc. 348. trade to have on the spot an officer with authority to do for the company all that in the ordinary exigencies of their business may require to be done promptly, and in this respect there is no difference between an ordinary partnership and a corporation, and that it was not necessary to show any authority under seal to the general superintendent of the company to render the company liable for acts which he was authorized to do. BANKRUPTS AND INSOLVENTS. may sue Jabour. An uncertificated bankrupt or an insolvent may himself main- Bankrupt or tain an action for the profits of his personal labour and skill insolvent after his bankruptcy or insolvency, and his assignees have no for wages in right to interfere (x); indeed, in one case, it was held that he respect of his might even sue them where they had employed him to carry on personal the business (y). And where materials furnished are necessary to the bankrupt's labour, the work and materials may become Materials so blended together as to form one joint cause of action, upon which the bankrupt himself may sue and be entitled to recover, his assignees not interfering (z). blended with work. broker. But a furniture broker, who was employed in moving goods, Furniture in the course of which employment he procured vans, supplied packing-cases, &c., and employed five or six men, and likewise cleaned and repaired furniture, was held not to be a man using merely his personal labour, and therefore that he could not recover the amount of his bill for so doing if the assignees thought proper to put in their claim (a). And so it was held, that a man carrying on business as a Surgeon and medical practitioner, who was in possession of his original stock apothecary. of medicines on credit, and procured more on credit, and with these and his personal skill pursued his occupation for profit, could not sue for his work and labour as a surgeon and apothecary, and for medicines, after he had become bankrupt and his assignees had claimed the debt (b). stipulated And where A. agreed to serve B. and C., who were type- Assignees founders, as their foreman, for seven years, at fixed wages, at entitled to the rate of three guineas a week, "the party making default damages for to pay to the other the sum of 5007. by way or in the nature of breach of specific damages." A. was dismissed, then became bankrupt, employ workand after the bankruptcy brought an action upon the agreement man who has for the amount of the penalty, to which the defendants pleaded (x) Chippendall v. Tomlinson, 4 Doug. 318; S. C. 1 Co. Bankr. Law, 432; see 7 East, 57, note 6; Beckham v. Drake, 2 Ho. Lords Cases, 579, 643; Williams v. Chambers, 10 Q. B. 337; and cas. cit. Ex parte Walters, 2 Mont. D. & De Gex, 635. (y) Coles v. Barrow, 4 Taunt. 754; but see Nias v. Adamson, 3 B. & Ald. 232, where Best, J., said of Coles v. Barrow, "If Mr. Justice Lawrence had continued in the Court of Common Pleas (z) Silk v. Osborn, 1 Esp. 140. (b) Elliot v. Clayton, 16 Q. B. 581. contract to become bankrupt. Bankrupt master. his bankruptcy: it was held by the House of Lords that the action could not be maintained, as the right of action passed to his assignees (c), on the ground that the contract contained a clause imposing a penalty for the breach thereof, for which penalty the action was substantially brought (d). Under the old Bankrupt Act (e) it was held that a commission of bankrupt did not operate as a dissolution of a contract of hiring between the bankrupt and his clerk, and the bankrupt was held liable to pay his clerk's wages due from the expiration of the year last before the commission up to the time of rescinding the contract of hiring notwithstanding the bankruptcy (ƒ). (c) Beckham v. Drake, 2 Ho. Lords Cases, 579. (d) See per Maule, J., in Bell v. Carey, 8 C. B. 894. (e) 6 Geo. 4, c. 16. (f) Thomas v. Williams, 1 A. & E. 685; see further on this point, post, Ch. 4. 1. THE REQUISITES OF A CONTRACT OF HIRING AND SERVICE. WHEN WRITING NECESSARY-THE STATUTE OF FRAUDS. By the Common Law a servant might be hired, either by deed By common or by a parol contract (a); but when hired or retained by deed, law might be either by could only be discharged by an equally formal instrument (b). deed or parol. When hired by parol, he might also be discharged by parol (c). Since the Since the passing of the Statute of Frauds, however, it has Statute of become necessary, in many cases, that contracts of hiring should Frauds, be in writing. writing necessary in By the fourth section of that statute (d) it is enacted, "that some cases. no action shall be brought (e) upon any agreement that is not to The Statute (a) A contract is called a Parol Contract, when either verbal, or in writing, but not under seal; see Beckham v. Drake, 9 M. & W. 79. (b) i. e., from the contract, for he might be discharged from the service, so as to prevent his gaining a settlement, by parol agreement. Pawlet v. Burnham, 1 Sess. Ca. 71; 2 Bott. 424. (c) Dalt. Just. c. 58; R. v. Daniel, 6 Mod. 182. (d) 29 Car. 2, c. 3. The cor responding Irish Act is 7 Will. (e) The case of Carrington v. of Frauds. |