sub-sect. (4) of the Stamp Act, 1891, unstamped documents are admissible in all criminal proceedings.

In view of the provisions of sect. 14, sub-sect. (4), the Stamp Act of 1870 still applies to instruments of apprenticeship executed before January 1, 1892; so that the consideration in such cases must be stated correctly and fully in the instrument, and the ad valorem duty be calculated on the amount of the consideration (ƒ). By the Customs and Revenue Act of 1869 (32 & 33 Vict. c. 14, s. 18), a duty of 15s. is payable" for every male servant." By sect. 19 it is provided :

(3.) The term "male servant means and includes any male servant employed either wholly or partially in any of the following capacities; that is to say, maître d'hôtel, house steward, master of the horse, groom of the chambers, valet de chambre, butler, under butler, clerk of the kitchen, confectioner, cook, house porter, footman, page, waiter, coachman, groom, postilion, stable-boy or helper in the stables, gardener, undergardener (g), park-keeper, game-keeper, under game-keeper, huntsman and whipper-in, or in any capacity involving the duties of any of the above descriptions of servants, by whatever style the person acting in such capacity may be called: (4.) Every person who shall furnish any male servant on hire shall, for the purposes of this Act, be deemed to be the employer of such servant: (5.) It shall not be necessary for licences to be taken out in the following cases, viz. :-By any officer in Her Majesty's army or navy for any servant, being a soldier in the army or a person actually borne upon the books of a ship, and employed by such officer in accordance with the regulations of Her Majesty's service: By any licensed retailer of exciseable liquors or licensed keeper of a refreshment house for any servant employed by him solely for the purposes of his business, such servant being the only male servant employed by him: By any person who shall have made entry of his premises in accordance with section twenty-eight of this Act for any servant employed by him at such premises in the course of his trade, other than a servant employed to drive a carriage with any horse let to hire for any period exceeding twenty-eight days; provided that such person shall have complied with all the provisions contained in the said section By any person duly licensed by proper authority to keep or use any public stage or hackney carriage for any servant necessarily employed by him to drive such stage or hackney carriage, or in the care of such stage or hackney carriage, or of the horse or horses kept and used by him to draw the same.

Sect. 27 imposes a penalty of 207. for not taking out a licence. Every person who shall furnish a servant on hire is required to

(f) Vide sect. 40 and the schedule of 33 & 34 Vict. c. 97.

(g) Dillon v. Marquis of Bath (1899), 15 Times L. R. 393. The employer of an apprentice under a bona fide contract

of apprenticeship requires no licence for the apprentice under this section, even though the apprentice is employed in one of the capacities specified in this definition: Horan v. Hayhoe, [1904] 1 K. B. 288.

enter in a book the name of the servant and the name and address of the person hiring such servant (sect. 29).

The Court of Exchequer, in Spencer v. Sheerman (h), decided that hotel-keepers must take out licences for waiters engaged only for two or three weeks. But the 36 & 37 Vict. c. 18, s. 4, annuls the effect of this, by enacting that it shall not be necessary for a licence to be taken out under 32 & 33 Vict. c. 14, by any hotelkeeper, retailer of intoxicating liquor, or refreshment-house keeper, for any servant wholly employed by him for the purposes of his business.

(A) (1871), 23 L. T. 873. See also 39 Vict. c. 16, s. 5, as to "male servant."

CHAPTER VIII.

THE CONSIDERATION.

AGREEMENTS of hiring and service require consideration in order that they may be enforced.

Mandate, that is, a gratuitous undertaking to perform services, is of much less consequence in English law, than it is in Roman law (a). The former has to do mainly with promises to serve for some consideration. If A. promises to serve B., and B. does or gives or promises nothing in return, no action (unless in the case of contracts under seal) lies; the maxim ex nudo pacto non oritur actio applies (b). Consideration embraces many things besides money. It will not include the ties of relationship or friendship, or merely moral duties. To support a promise it is, however, enough that there should be, to quote the judgment of the Court in Currie v. Misa (c), "some right, interest, profit or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility, given, suffered, or undertaken by the other." The consideration need not be such as in fairness would be adequate ; that is a matter for the parties to the agreement. The Courts will not, for example, inquire whether a servant's wages are too low, or whether the agreement of hiring is too much to the advantage of one of the parties (d). The consideration cannot consist of bygone transactions, unless anything was done at the request of the person making the promise (e). A promise made in respect of a past

(a) Sohm's Institutes of Roman Law (Ledlie's translation), p. 422; Hunter's Roman Law, 308.

(b) Promise by directors to work gratuitously not binding: Lambert v. Buenos Ayres Co. (1869), 18 W. R. 180. In Dunston v. Imperial Gas Light Co. (1831), 3 B. & Ad. 125, it was held that directors of a company, not being ser

vants, but managers or governors, could recover no remuneration from the company unless by virtue of an express resolution under seal.

(c) (1875), L. R. 10 Ex. 162.

(d) Hitchcock v. Coker (1837), 6 A. & E. 438.

(e) Leake's Law of Contracts (5th ed.), 6, and authorities there cited.

matter may be induced by gratitude for what has been done; the transaction is not the less, in a legal point of view, purely voluntary.

If the contract be within the Statute of Frauds, the consideration must be stated in writing (f). It may consist either in money or goods-subject to the provisions of the Truck Acts.

In many contracts of service the consideration is not expressed. The parties have in their minds certain usages. They do not state that which they assume need not be stated, and they are content to take for granted many of the terms of their agreement. Questions of difficulty frequently arise as to whether there exists a contract the consideration of which is implied or may be fairly inferred, or whether there is a mere promise which is not binding owing to the absence of consideration. In other words, is there, to use an expression common in the earlier cases, "mutuality"? A., for instance, agrees to serve B. for seven years. Does B. thereby by implication agree to retain A. in his service for the same period? The current of the authorities is, as will be seen from Appendix A., far from uniform (g); and it is difficult to reconcile them, the Courts, in the later cases, being more ready to imply terms. An action will not lie where A. is not bound to serve, or B. is not bound to retain him in service. No doubt, if A. enter upon his duties, and perform certain work, the law will imply a promise by B. to pay, and A. will be entitled to recover on a quantum meruit (h). But when B. seeks to compel A. to fulfil an agreement to work, or to obtain damages for non-fulfilment, it must be shown that there is an obligation on the part of B. to retain him in service. Thus, in Dunn v. Sayles (i), the Court refused to imply a covenant to retain the plaintiff's son in the service of the defendant for five years, when it was agreed by deed that the plaintiff's son should continue with the defendant as an assistant surgeon dentist for five years, and that the defendant should pay weekly wages. This decision has been much criticised; and the tendency in recent cases has been to imply a promise on the part of

(f) Wain v. Warlters (1804), 5 East, 10.

(g) There is much ambiguity as to the meaning of "mutuality : Crompton, J., in Whittle v. Frankland (1862), 2 B. & S. 55. Here it is taken in the sense of mutual promises; one party makes one promise, and another makes a promise to support it. See as to want of mutuality, Mayor of Kidderminster v.

Hardwick (1873), L. R. 9 Ex. 13; Arnold v. Mayor of Poole (1842), 4 M. & G. 896. See Appendix to this Chapter for chief decisions on this question.

(h) See Elsee v. Gatward (1793), 5 T. R. 143. See Ap

(i) (1844), 5 Q. B. 685. pendix to this Chapter.

the master to retain "whenever there is something not expressed which it is clear to all men of ordinary intelligence and knowledge of business must either have been latent in, or palpably present to, the minds of both parties when the contract was made" (k); or as Lindley, L. J., put it in a recent case (7), "the contract will be treated as subject to an implied condition that it is to be in force only so long as a certain state of things continues, in those cases only where the parties must have contemplated the continuing of that state of things as the foundation of what was to be done." Thus, when A. agreed to serve B. for seven years on certain terms, and B. to pay his wages so long as he was so employed, it was held that B. was bound to employ A. for seven years (m).

While the Courts will often presume a promise to hire or retain in service, though it be not actually expressed, they will sometimes imply a right to terminate a contract of hiring or service, though no such right be expressed. Suppose that it is agreed between A. and B. that for seven years, or so long as A. shall continue to carry on business in Liverpool, A. shall be the sole agent there for the sale of B.'s coals, and that B. shall not employ any other agent there. Suppose further, that it is a term of the agreement that if A. does not sell a certain amount a year, or if B. cannot supply a certain amount a year, either party may determine the agreement; and that B. sells the colliery at the end of four years. Has B. been guilty of a breach of contract? Such were the chief facts in Rhodes v. Forwood (n). The House of Lords, reversing the decision of the Exchequer Chamber and affirming that of the Court of Exchequer, held that no action would lie against B. for breach of contract. The House of Lords thought that there was no implied obligation on the part of B. to carry on his business and not to sell it for seven years. It would be different if the agreement were in effect, that the business should be carried on in order that the profits might be remuneration for advantages

(k) Brett, J., in Thorn v. Mayor of London (1875), L. R. 10 Ex. 123.

(1) Turner v. Goldsmith, [1891] 1 Q. B. 544, at p. 550. (A case of contract of service.)

(m) Hartley v. Cummings. See Appendix.

(n) (1876), 1 App. Cas. 256. See Brace v. Calder, [1895] 2 Q. B. 253; especially remarks of Esher, M. R., at p. 259. (Defendants, a firm of four members, engaged plaintiff as manager

for two years. Before this time expired two of the partners retired, and the business was carried on by two. They were willing to continue to employ plaintiff on the same terms as before, but he declined to serve. Held, in an action for wrongful dismissal, by Lopes and Rigby, L. JJ., Esher, M. R., dissenting, that the dissolution of the partnership operated as a wrongful dismissal, but that the plaintiff was entitled only to nominal damages.)