A trustee in bankruptcy has no right to the proceeds of the personal and daily labour of a bankrupt.

66

The old law-and it is still in force-was that wages earned by a bankrupt before his discharge did not pass to his assignees, at all events so far as the wages were necessary to his maintenance (b). Williams v. Chambers (c) decided that the assignee of an insolvent debtor could not recover in respect of work and labour performed by the debtor if the remuneration were necessary for his maintenance. But if the claim were not for mere personal labour" -if, as in Elliot v. Clayton (d), the claim were for medical attendance and medicines, or for services rendered by a furniture broker, who employed men and vans in the course of the services for which he sued (e)—a different rule prevailed. No doubt, too, if a person accumulated a large sum, even by personal labour, the assignees might claim it (f). In like manner the trustee could intervene and claim (g) a sum which was not the remuneration for work and labour, but damages for breach of contract; as in Wailing v. Oliphant (h), where the trustee was entitled to claim a sum awarded by the Court of Chancery to the bankrupt, after bankruptcy and before discharge, in lieu of proper notice of dismissal.

"If salary or wages, or commission under a contract of service," says Wilde, C. J., in Beckham v. Drake (i)-in which the question was whether a sum in the nature of a penalty for breach of a contract to employ passed to the assignees of a servant-" are due at the time of the bankruptcy, the right to recover such wages, salary, or commission would pass to the assignees as part of the personal estate, without regard to the consideration of whether the contractor's services had had relation to the personal skill or labour

(b) Chippendall v. Tomlinson (1785), 4 Doug. 318. (In this case the assignees did not interfere.) Silk v. Osborn (1794), 1 Esp. 139; Ex parte Walters (1842), 2 M. D. & D. 635; Ex parte Grimstead (1844), De G. 72; In re Graydon, [1896] Q. B. 417; In re Roberts, [1900] I Q. B. 122; Mercer v. Vans Colina, reported in note to preceding case, ibid., at p. 130; Bailey v. Thurston, [1903] 1 K. B., per Collins, M. R, 137, 142.

(c) (1847), 10 Q. B. 337. (d) (1851), 16 Q. B. 581.

(e) Crofton v. Poole (1830), 1 B. & Ad.

568.

(f) Hesse v. Stevenson (1803), 3 B. & P. 578.

(g) See the remarks on this case in Bailey v. Thurston: see note (b). (h) (1875), 1 Q. B. D. 145. See also Beckham v. Drake (1847), 2 H. L. C. 579; right of action for breach of agreement to hire for seven years which accrued before bankruptcy passed to assignees; and on the other hand, Ex parte Dewhurst (1871), L. R. 7 Ch. 185, (i) (1849), 2 H. L. C. 633,

of the bankrupt," &c. . . . To the argument that the action was personal to the bankrupt, Wilde, C. J., replied:

It arose out of a contract founded on the personal confidence in the bankrupt, and which could only be performed by his personal labour and skill; and, in the same sense, contracts are personal made with factors, salesmen, agents of various kinds, masters of ships, bankers, attorneys, architects, engineers, and various other persons whose personal skill, knowledge, and integrity are the inducements to the contracts. But surely it cannot be contended that the right of action for breaches of contract in relation to such employments accruing before the bankruptcy would not pass to the assignees.

In Emden v. Carte (k), the trustee of an architect was held entitled to sue as co-plaintiff with the bankrupt for remuneration in respect of a contract to employ the bankrupt as architect, and for damages for wrongful dismissal from such employment. But unless and until the trustee intervenes, an undischarged bankrupt can maintain an action for damages for wrongful dismissal in respect of a breach, since the bankruptcy, of a contract of service made before the bankruptcy (7). "The circumstance that the master is likely to become bankrupt, or that his property has been all taken in execution, will not exonerate the servant from performance of his contract" (m).

Sect. 53, sub-sect. (2), of the Act of 1883 provides :

Where the bankrupt is in receipt of a salary or income other than as aforesaid (officers, civil servants, &c.), or is entitled to any half-pay, pension, or to any compensation granted by the Treasury, the Court, upon the application of the trustee, shall from time to time make such order as it thinks just for the payment of such salary, income, half-pay, compensation, or of any part thereof, to the trustee, to be applied by him in such manner as the Court may direct (n).

This section does not apply to a purely voluntary allowance (0); nor to a compassionate allowance to a retired Indian officer (p); nor to the fluctuating income of a professional man acquired by his skill and knowledge (q); nor to the wages of a workman

(k) (1880), 17 Ch. D. 169; 17 Ch. D. 768. See remarks on this case in Bailey v. Thurston, ubi supra; also Wadling v. Oliphant (1875), 1 Q. B. D. 145.

(1) Bailey v. Thurston & Co., Ltd., [1903] 1 K. B. 137.

(m) Wood, 307,

(n) See Bankruptcy Rules, 1886, r. 79, as to notice by the trustee; and r. 82, as to power to review the order.

(0) Ex parte Wicks, Re Wicks (1881), 17 Ch. D. 70.

(p) Ex parte Webber, Re Webber (1887), 18 Q. B. D. 111.

(9) Ex parte Benwell, Re Hutton (1884), 14 Q. B. D. 301,

employed in a colliery (r). But it does apply to a salary dependent on the annual vote of Parliament or a colonial legislature (s); to a commercial traveller's salary paid weekly under an engagement terminable at a week's notice (t); and to an actor's fixed salary payable under a contract (u).

The following are the modes in which a contract of service may be lawfully terminated :

(a) By consent.

(b) By expiration of the agreed period of service.

(c) By notice, including

(i) payment of wages in lieu of notice.

(ii) expiration of the time for which notice is given. (d) By dismissal or departure without notice for good cause. (e) By impossibility of service.

(f) By death of one of the parties.

(r) Re Jones, Ex parte Lloyd, [1891] 2 Q. B. 231.

(s) Ex parte Huggins, Re Huggins (1882), 21 Ch. D. 85.

(t) Re Brindley, Ex parte Brindley (1887), 4 Mor. 104.

(u) Ex parte Shine, Re Shine, [1892] 1 Q. B. 522.

CHAPTER XXI.

ASSIGNMENT OF PERSONAL CONTRACTS.

CONTRACTS of hiring and service cannot be transferred or assigned without the consent of the parties thereto (a).

Master and servant both contract with regard to the personal qualities of each other. The relation is one of personal confidence, and the one cannot compel the other to accept a third person in substitution. If A., for example, sells his business to B., he cannot turn over D., his servant, to the purchaser. Neither will a servant be permitted to say to his master, "I decline to work myself, but I have procured a competent substitute," or "I have let out a part of the work." In one case the plaintiff was

employed as master of a ship; he engaged A. to act for him. In an action which the former brought for wages, it was held that he could not recover, as the contract contemplated personal service (b).

In like manner the contract of apprenticeship is primâ facie not assignable (c). As it is expressed in Coventry v. Woodhall, "The matter of putting an apprentice is a matter of great trust, for his diet, for his health, for his safety; and therefore I will, by choice, commit him to one and not to another" (d). All the parties to the original contract must join in an assignment to make it effective (e). It must be properly stamped, and operates as an agreement between the master and the assignee that the apprentice shall,

(a) Leake's Law of Contract, 5th ed. 825; Pollock on Contracts, p. 472.

(b) Campbell v. Price (1831), 9 S. 261; Schmaling v. Tomlinson (1815), 6 Taunt. 147. (A. employed by defendant to carry goods to a foreign market; A. delegated the performance to plaintiff, who did the work without knowledge of the defendant; plaintiff could not recover compensation for services from defendant.) See also Stevens v. Benning (1854), 1 K. & J. 168; Hole v. Bradbury (1879), 12 Ch. D. 886 (agreements between author and publisher); Griffith

v. Tower Publishing Co., [1897] 1 Ch. 21, where the principle was applied to a limited company; Robson v. Sharpe (1831), 2 B. & A. 302. As to servant agreeing to serve master's assignee, Benwell v. Inns (1857), 26 L. J. Ch. 663.

(c) Baxter v. Burfield (1747), 2 Str. 1266; Horne v. Blake, 2 Str. 1267. See Austin on Apprentices, 72.

(d) Hob. 134 A.

(e) Baxter v. Burfield (see note (c)). Strictly this is no assignment, but a new contract.

with his own consent, perform his contract with the former by doing service to the latter (f). Such a contract, however, may be assignable if the master's assignees or executors are named (g), or if there be, as is the case in the City of London, a custom in virtue of which an apprentice may be turned over to a new master (h).

(f) Caister v. Eccles (1701), 1 Ld. Raym. 683. See Austin on Apprentices, 73.

(g) Cooper v. Simmonds (1862), 7 H. & N. 707. An infant bound himself apprentice to a tradesman, his executors and administrators for seven years carrying on the same business in the town of Wolverhampton; the apprentice bound to serve the widow, who was sole executrix, and who carried on the same business in Wolverhampton.

(h) Rex v. Peck (1699), 1 Salk. 66; Bouchier v. Coster (1662), Keble, 250. But apparently the assignee could not

sue on the deed: Show. 4. There are authorities (Wadsworth v. Gye (1665), Sid. 216; Walker v. Hull (1666), 1 Lev. 177) that where a master covenants to find the apprentice in meat, drink, and necessaries during the term of apprenticeship, his executors are bound, to the extent of the assets, to perform the covenant. As to right to appoint deputies, Phelps v. Winchcombe (1616), 3 Bulst. 77; Walsh v. Southworth (1850), 6 Ex 150. As to assignability of covenants in restraint of trade, see Jacoby v. Whitmore (1883), 49 L. T. (N. S.) 335; and p. 105, supra.