Service

must be

became bankrupt, and a commission issued on the 10th of July, 1828. He had been imprisoned about a month before that time under an Exchequer process, at the suit of the Crown, and remained in prison a year after the commission had issued. From the commencement of the imprisonment till the issuing of the commission, and for ten days after, the defendant's business was conducted by his brother. The plaintiff attended from October, 1826, as long as the brother conducted the business, but ceased to do so when the brother ceased to conduct the business, and when he ceased, 107. wages were due pro rata; it was left to the jury to say whether the contract had been dissolved after the issuing of the commission by mutual consent; and they found that it had. In the following term a motion was made for a rule to enter a nonsuit, on the ground that the bankruptcy operated to dissolve the contract. But the rule was refused, and Lord Denman said, "That the 48th sect. of 6 Geo. 4, c. 16, made no alteration in the legal effect of the contract of hiring, and, consequently, that as the wages had not become due at the time of the commission, either by efflux of time or by a dissolution of the contract, the bankrupt certificate forms no defence to this action ;" and added, "that no inconvenience was likely to occur from his decision, as persons in the plaintiff's situation must be expected to avail themselves of the section above referred to."

It will be observed, however, that in Thomas v. Williams, the plaintiff continued to act as the defendant's clerk after the commission issued; and, therefore, it was unnecessary to decide, and that case cannot be considered as an authority, that where a servant, whose wages are due periodically, ceases to act immediately on his master becoming bankrupt, the master will be liable, after he has obtained his certificate, to an action for wages for such period as may have elapsed between the last time when wages became due and the bankruptcy. In such case it is conceived that the certificate would be a bar; since the bankruptcy, and the fact that the servant thereupon ceased to serve, would be evidence from which might be inferred a dissolution of the contract of hiring by mutual consent, and an agreement that the servant should be paid pro rata for the broken period of service (k). It can only be on the ground that the contract of hiring is rescinded, that a servant, whose wages are due periodically, is entitled, on his master's bankruptcy, to be paid in full wages for a broken period of service-for the Act of Parliament only authorizes the payment of wages in full where the master shall have been indebted at the time of issuing the fiat-and unless the contract was rescinded, he was not indebted. And it must be borne in mind, that this provision, which gives a preference to one class of creditors over another, must on that account be construed strictly (7).

And in order to entitle a servant to the benefit of the above under a con- provision of the bankrupt law, Lord Eldon held, that his service must have been rendered under a contract of hiring. And, therefore, where a son had lived with his father seven years as a

tract of

hiring.

(k) See Lamburn v. Cruden, 2 M. & G. 253.

(1) See Ex parte Hampson, 2 Mont. D. & D. 462.

Glover.

clerk, receiving only board and lodging, and there was no Erx parte actual contract for wages,-though the father swore it was always his intention to pay him something for his services, and the assignees did not object,-yet Lord Eldon, though he lamented the hardness of the case, said, "that as there was in reality no contract for wages, he could make no order for the son to prove" (m).

tracts within

sufficient.

Yearly

But it seems to have been considered, that there was no What congeneral rule as to what hiring was sufficient to entitle a ser- the statute. vant or clerk to the benefit of the act 6 Geo. 4, c. 16, s. 48(n). No general However, weekly labourers and workmen, employed as exca- rule. vators, were considered not to come within the meaning of that Weekly section (o). But it was not thought necessary that the service hiring not should be under a yearly hiring, though there must have been an engagement of a more permanent nature than a weekly hiring not hiring (p). And, therefore, where an overlooker or manager necessary. of a cotton mill was engaged at 33s. per week, but subsequently a contract was entered into that he should be paid 1047. per annum, to be paid in weekly sums, he was held to come within the act (q). And a person engaged as traveller, at an annual salary, was also held within the act (r). And where a person entered into an agreement with his father, to serve him as clerk and foreman in consideration of two suits per annum and two guineas a week, he was held within the act (s).

And it was also held, that the mate of a vessel, hired by the Mate of bankrupt, who was master and part owner, under a verbal vessel. agreement, was entitled to six months' wages (t).

And a French teacher in a school at Brighton has been held French to be within 12 & 13 Vict. c. 106, s. 168, and entitled to a quarter's master. salary (u).

The provision as to clerks is not limited to trade clerks, nor is Who are it necessary that the trading should have continued during the clerks. whole of the period for which wages are claimed (x).

Harris.

A trader borrowed 5501. under an agreement, by which the Ex parte lender was to become his clerk at a salary of 2227. 10s. per annum, the trader to produce his accounts and balance sheet to the lender, who was to collect debts and alone draw cheques. If the balance was in the trader's favour at any time, he might draw to the amount of it. On payment of the loan, or on proceedings being taken to recover it, the agreement was to be at an end. The lender to have the option of becoming a partner.

(m) Ex parte Glover, 1 Mont. Dig. 165; see Deac. & De G. on Bankr. vol. i. 261, 262.

(n) Per Sir G. Rose, Ex parte Collyer, 2 Mont. & A. 29; S. C. 4 D. & C. 520.

(0) Ex parte Crawfoot, Mont. 270; Ex parte Skinner, Mont. & Bli. 417; S. C. 3 D. & C. 332, where a coach-guard and weekly servant at 21. per week was held not to be entitled to the benefit of the act. See now sect. 169,

Er parte
Hickin.

Clerk leaving service six

months before fiat, in

of act of

within the

act.

The trader became bankrupt, and it was held that the lender was a clerk, and entitled to three months' salary in full, under 12 & 13 Vict. c. 106, s. 168; and, also, that his having been absent from business, owing to ill health, for the three months immediately preceding the bankruptcy, with the bankrupt's leave, did not take away this right (y).

A. entered the service of B., as book-keeper and cashier, in 1844, and remained till December, 1848, without any agreement being made as to the amount of his salary, but he drew small sums from time to time. A. stated that in December, 1848, it was agreed between him and B. that his salary should be at the rate of 2507. per annum from 1844, and that the reason why no arrangement was made before was, that B. was making experiments in a manufacture, from which he hoped to derive a large fortune, out of which A. expected to be paid. B. became bankrupt in February, 1849, and A. was allowed to prove for his salary (z).

In a case (a), in which it was decided that a clerk who left the bankrupt's service six months before the fiat issued, on account of his having assigned all his property in trust for his consequence creditors, thereby putting it out of his power to pay the clerk, bankruptcy, was entitled to six months' wages, under 6 Geo. 4, c. 16, the court pronounced no opinion whether servants voluntarily quitting the service of their masters did or did not come within section 48. The ground, however, on which that case was decided was, that although there was an interval of six months between the quitting of the service and the fiat, yet the servant quitted in consequence of his master having assigned all his estate and effects, and thereupon ceased to carry on his trade, which was an act of bankruptcy, whereby the servant lost his employment as well as his wages (b).

Query, as to

servant vo

luntarily quitting.

Such a servant not within the

act after he

dividend

be declared.

But in another case (c), where it appeared that about twelve months before the bankruptcy, the bankrupt compounded with his creditors, and it was then agreed between the bankrupt and had allowed his clerk that he should quit the service of the bankrupt, and that a year's wages, amounting to 2501., should remain as a debt instead of being included in the composition. And the clerk then quitted the service and obtained another similar situation, the bankrupt's sou succeeding him as clerk to the bankrupt, and the trade being carried on as usual for another year, when the bankruptcy took place. The clerk was not allowed six months' wages in full after he had allowed a first and final dividend to be declared.

Workmen by

within act.

And it was held that the workmen of a coachmaker, who the piece not worked by the piece, and received a specified sum for each particular job under separate and distinct contracts, and where there was no hiring for a specific time, were not servants within 6 Geo. 4, c. 16, s. 48 (d).

(y) Ex parte Harris, 1 De G. 165.

(z) Ex parte Hickin, 19 L. J., Bank. 8.

(a) Ex parte Saunders, 2 Mont. & A.684.

(b) Ex parte Gee, Mont. & Ch.

108.

(c) Ibid.

(d) Ex parte Grellier, Mont. & M. 95.

of servant

It would seem, however, that if the misconduct of the clerk Semble, that has been such as would have justified his dismissal without misconduct wages, he might be deprived of his right to be paid his wages in would defull (e).

prive him

act.

And it is to be observed, that the payment of wages is not to of benefit of be out of the first monies got in, but as soon as there is a suffi- Out of what cient fund for the purpose after providing for the expense of monies wages working the fiat (ƒ). to be paid.

not exceed

workman.

And by 12 & 13 Vict. c. 106, s. 169 (g), it is also enacted, Court may that when any bankrupt shall have been indebted at the time of order wages issuing the fiat, or filing the petition for adjudication of bank- ing 40s. to ruptcy, to any labourer or workman of such bankrupt in respect labourer or of the wages or labour of such labourer or workman, it shall be lawful for the court, upon proof thereof, to order so much as shall be so due, not exceeding 40s., to be paid to such labourer or workman out of the estate of such bankrupt; and such labourer or workman shall be at liberty to prove for any sum exceeding such amount.

Where coal proprietors employed colliers to whom work was Colliers' let off at so much per score baskets, and each collier had a drawers. drawer attached to him, it was held that as the drawers could not have maintained an action against the proprietors for their wages, they were not entitled to wages under this section (h).

DEATH OF MASTER.

entire year's

By the death of the master the servant is discharged (i); and Discharges the sureties to a bond for the faithful service of the servant are servant. released (k). And it seems that where there is no custom upon Where conthe subject which can be imported into the contract, and the tract for an service is under an entire contract for a year's service and a service, seryear's pay, if the master dies in the middle of the year the ser- vant not vant is not legally entitled to any wages for a broken period of strictly enservice. Thus, where (1) debt was brought upon a writing, by which Countess of the defendant's testator had appointed the plaintiff's testator to Plymouth v. Throgmorreceive his rents, and promised to pay him 1007. per annum for ton.

(e) Ex parte Hampson, 2 Mont. D. & D. 462.

(f) Ibid.

(g) See the corresponding enactment in 5 & 6 Vict. c. 122, s. 29.

(h) Ex parte Ball, 3 De G., M. & G. 155.

(i) Wentw. Off. Ex. 141, 14th edit.; Wms. Exors. 644. But see R. v. Ladock, Burr. S. C. 179; 2 Bott. 277; 1 Nol. P. L. 461, where it was held that a pauper gained a settlement by serving out the year with the executors of the master, who died in the middle of the year; on the

titled to any wages.

Where there is a custom to that effect, servant entitled to wages for actual service.

So where

his service, the plaintiff showed that the defendant's testator died three quarters of a year after, during which time he served him, and he demanded 751. for three quarters; after judgment for the plaintiff in the Common Pleas, the defendant brought a writ of error, and it was argued that without a full year's service nothing could be due, for that it was in nature of a condition precedent, that it being one consideration and one debt, it could not be divided: and the Court of Queen's Bench were of that opinion, and reversed the judgment.

Where, however, there is a custom applicable to persons in the situation in which the servant was, as there is with regard to domestic servants, who are generally considered entitled to wages for the time they serve, though they do not continue in the service during the whole year, the servant would probably be held entitled to recover wages for the period of actual service (m). And it is conceived that in all cases where the contract not contract is not an entire contract for a whole year's service on one side, and a whole year's pay on the other, a servant, whose master dies in the middle of a year, might recover, in the common action for wages, his wages for the broken period of service, upon principles similar to those which allow a servant, wrongfully discharged, to treat the contract as rescinded, and sue for his wages for the period of actual service (n).

for an entire

year.

Query, whether wages entitled to preference over other debts.

Legacies to servants.

The Apportionment Act, 4 & 5 Will. 4, c. 22, would not in general apply to cases of hiring and service (o).

The executors or administrators of their master are the persons to whom servants must look for payment of their wages, after his decease.

It is stated by some authorities (p), that the wages of domestic servants and of labourers are entitled to preference over other debts of the deceased. But it is difficult to point out any legal ground on which such preference can be claimed in England (q), though they are entitled to priority in France (r).

The subject of legacies to servants, showing how far such legacies operate to extinguish the servant's claim to wages, will be treated of hereafter in a separate Chapter (s).

(m) See Cutter v. Powell, post, p. 129.

(n) Ante, p. 108.

(o) Lowndes v. Earl of Stamford, 18 Q. B. 425.

(p) 2 Bl. Comm. 511, citing 1 Roll. Abr. 927; and see Toller on Exors. 286.

(q) 2 Wms.Exors. 822, note(s), 3rd edit. It may be here mentioned as a caution to servants, that upon the death of their master the only persons entitled to deal with his personal property are his legal personal representatives, that is, his executors if he has left any; or, if not, his administrators; and that in a case

where a housekeeper, on her master's death, without leaving any executors, applied certain cash in the house, and the produce of the sale of some of her master's property, to the payment of the expenses of his funeral and other expenses, without any authority to do so; she was afterwards held liable to an action at the suit of the widow and administratrix for the money so received and applied, Welchman v. Sturgis, 13 Q. B. 552.

(r) Code Civ. liv. iii. tit. xviii. s. 1. 2101.

(s) See the last Chapter in the Book.