Covenants in restraint of trade may be enforced by the assignees of the business, for the protection of which they were obtained (x), save where they are of a purely personal character (y), or by the personal representatives of the covenantee (s).

A covenant of this character cannot be enforced by an employer who has terminated the contract of service by wrongful dismissal (zz). A group of cases akin to the above is formed by those involving the validity of agreements to regulate business, to determine hours of work, wages, and strikes according to the decision of the majority. The Courts have treated such schemes as in restraint of trade. In Collins v. Locke (a), the facts were as follows:

Certain persons carrying on the business of stevedores in Melbourne entered into an agreement with a view to prevent competition. One provision was that, if any merchant refused to allow the stevedoring of any ship consigned to them to be done by the party entitled to it under the agreement, but should require any other of the parties to the agreement to do it, the party doing the work should give an equivalent to the persons so losing the stevedoring of an amount to be determined by arbitration. The Privy Council thought this not unreasonable.

It provides in a fair and reasonable way for each party obtaining the benefit of the stevedoring of the ships to which by the contract he was to be entitled. Each party might in turn derive benefit from this clause, and one of the four firms would always get the profit of the ship stevedored, though the work might be done by another of them. As regards the merchant, also, he can have his ship stevedored by the party whom he may require to do it; at least, there is no prohibition against his having it so done (b).

Another provision in the agreement was, that the parties to it would not "undertake or be in any way concerned in or interfere in the stevedoring, either in whole or in part, of any ship or vessel consigned to any of the said persons or firms otherwise than according to the provision in that behalf hereinbefore contained."

The covenant in such cases restrains three of the four parties to the agreement from exercising their trade, without giving any profit or benefit to compensate for the restriction to either of the four, whilst

(x) Benwell v. Inns (1857), 24 Beav. 307; Barnes v. Peary (1887), 35 Ch. D. 154, at p. 159; Jacoby Whitmore (1883), 49 L. T. (N. S.) 335; Hood v. Jones (1899), 81 L. T. (N. S.) 169.

(y) Davies v. Davies (1887), 36 Ch. D.

359.

(z) Archer v. Marsh (1837), 6 A. & E.

959; Green v. Price (1845), 13 M. & W. 695; 16 M. & W. 346.

(zz) General Bill-posting Co. v. Atkinson, [1908] 1 Ch. 537.

(a) (1879), 4 A. C. 674. The subject is fully discussed with reference to trade unions at p. 570, infra. (b) l. c., p. 687.

the combination they have thus entered into is obviously detrimental to the public, by depriving the merchants of the power of employing any of these parties, who are probably the chief stevedores of the port, to load their ships, unless in each case they employ the one of the four to whom the ship, as between themselves, has been allotted, however great and well founded their objection may be to employ him. Such a restriction cannot be justified upon any of the grounds on which partial restraints of trade have been supported. It is entirely beyond anything the legitimate interests of the parties required, and is utterly unprofitable and unnecessary at least for any purpose that can be avowed (c).

APPENDIX.

Cases on Mutuality (pp. 93 et seq.).

(c) l. c., p. 688.

NO CONSIDERATION.

should be laid off work, and, when required, to do a full day's work on every working day. Defendants not obliged to employ plaintiff for a reasonable number of working days during the term.

Aspdin v. Austin (1844), 5 Q. B. 671. The plaintiff agreed to manufacture for the defendant cement, and the defendant, on con

dition of his faithfully performing

CONSIDERATION.

vanced to him by certain persons
mentioned in the agreement and of
wages to be paid by them, agreed to
serve them and no one else, without
their consent, for twelve months and
during and until the expiration of
three months from notice of his de-
sire to terminate the service. The
employers agreed to pay on Saturday
night in every week during the
the term
all such wages as the articles made

by Whittaker amounted to. There
was a proviso that either party to
the agreement might, after twelve
months, give three months' notice.
Held, that the agreement might be
enforced by magistrates under the
4 Geo. IV. c. 34, and was not void
for want of mutuality.

Elderton

the aforesaid contract, covenanted to pay the plaintiff the weekly sum of 41. during the two years following wing the date of the agreement, and the weekly sum of ōl. during the next year following, and to receive him into partnership, &c. at the expiration of three years. Plaintiff also agreed to instruct defendant in the art of manufacturing cement on condition that defendant should not engage in the manufacture otherwise than under plaintiff's management or with his consent. By a deed subsequently executed, defendant covenanted with plaintiff to perform the several stipulations and agreements in the first agreement. Breach alleged, that defendant wrongfully discharged plaintiff from the service of defendant, and prevented him from manufacturing cement, &c. No implied covenant to retain the plaintiff resolution that plaintiff be ap

two or three years in the defendant's service, though the defendant was bound by the express words to pay the plaintiff the stipulated wages during those periods, if he performed, or was ready and willing to perform, the condition precedent on his part. The principle affirmed in the case is highly doubtful. The Courts today would no doubt imply a covenant to retain.

Dunn v. Sayles (1844), 5 Q. B. 685. Deed by which plaintiff covenanted that his son should serve the defendant for five years from the date of the agreement in the art of a dentistsurgeon, and attend for nine hours a day, and the defendant, in consideration of the services to be performed by the plaintiff's son, covenanted to pay certain wages. Breach, that the defendant refused to permit the son to remain in his service. Held, on motion in arrest of judgment, that there was no covenant corresponding

v. Emmens (1847), 4 С. В. 479; (1848), 6 С. В. 160; (1853), 4 H. L. Cas. 624. Count in a declaration on assumpsit on an agreement that in consideration that the plaintiff had agreed to become the permanent solicitor of the defendant's company for reward, &c., the company promised to retain and employ the plaintiff as such permanent solicitor, &c. Breach, that the company wrongfully refused to continue him in his employment as the solicitor of such company. This count not supported proof of a

pointed permanent solicitor to the company"; "permanent" meaning "no other than a general employment, as distinguished from an occasional employment in particular matters": Wilde, C. J. Second count on an agreement that, “from January then next the plaintiff, as the attorney and solicitor of the company, should receive a salary of 100l. per annum in lieu of rendering an annual bill of costs for general business transacted by him for the company as such attorney and solicitor, and should for such salary advise and act for the company on all occasions in all matters connected with the company, and he should attend the secretary and the board of directors when required." The Court of Common Pleas arrested judgment on a count for wrongful dismissal setting forth this agreement. The Exchequer Chamber reversed the judgment of the Common Pleas; the

CHAPTER IX.

WAGES AND REMUNERATION.

It is impossible to state all the duties of masters and servants. They vary with the nature of the employment; they are regulated partly by usage; they are also laid down in a multitude of Acts of Parliament; they may be contained in the "shop rules" or "working rules," sliding scales and awards of arbitrators with reference to which contracts of service are made. A few of the principal duties of masters at Common Law are here stated. They correspond to rights belonging to their servants. They are implied in all contracts of hiring and service, and, unless the contrary be stipulated, they are part alike of written and verbal

contracts.

It is the duty of a master to pay to his servant the wages (a) or salary agreed upon. No presumption that wages or salary is payable arises from the mere fact that services are performed or work is done for another.

It is not certain that the second of these propositions expresses correctly the purport of the authorities. They are not quite consistent. Thus, in Viner's Abridgment (6), it is said that "every

(a) In the Truck Act, 1831 (s. 25), "wages" is defined as "recompense for.. labour." Read strictly, but

this would exclude anything wages" in the narrowest sense of the word. See Chawner v. Cummins (1845), 15 L. J. Q. B. 161; Archer v. James (1862), 31 L. J. Q. B. 153, and the notes on the Truck Act, p. 334, infra. See as to "sliding scales" of wages, Royal Commission on Labour, 1892, Group A, vol. i. p. 482. Sometimes a copy of the sliding scale is printed and put in the "contract-book," which is signed by each workman. The following is an

example: "The standard of wages upon which future advances and reductions are to be made shall be the several rates actually paid at the respective collieries for the month of December, 1879; and such wages shall be equivalent to a standard nett selling price of 78. 10 d. to 88. a ton." As to "earnings" in the Workmen's Compensation Act, 1897, Sched. I. (1) (a), see Abram Coal Co. v. Southern, [1903] A. С. 306.

(b) Vol. v. p. 362, citing Pinchon's Case, 9 Rep. 86 b (which seems scarcely in point). See Le Blanc. J., in R. v. Shinfield (1811), 14 East, 547.