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may seem some reasons against it where a change in the partnership involves no change in the duties of the servant; and it may be urged that the decision in Tasker v. Shepherd turned on the construction of the particular contract before the Court, which was made with reference to partnership business, and in which was a proviso that the servant should be paid according to the profits of the firm. But, on principle, it seems clear that a contract in which A. contracted to serve B. and C., would not be binding between A. and C. only.
There are few authorities with regard to the question whether, if a master assumes partners, they will have the rights of masters over servants. The law upon the subject is thus stated in Fraser's Law of Master and Servant (l): " He (a partner) cannot assume partners who will have the right of masters over domestic servants, governesses, or perhaps over clerks. It is part of such agreements that the servant shall do the work of the master who hires him, and of him alone. With regard, however, to artisans, it has been found that they cannot consider themselves free, although their master assume a partner along with himself, who will have the rights of a master. This is a contingency to be looked for and expected; and it would often be productive of ruinous consequences, if, on such a common event, the whole servants of a large establishment were freed from their contracts. This was decided in a case where a master, conducting business alone, assumed two partners. But an opinion was expressed that it would have been different if the original master had not remained in the firm " (m). It is submitted that in English law it would be generally a question whether there was a novation ; if there was no novation, the new partner would not have the rights of a master. (1835), 2 A. & E. 655, and the cases Cambridge v. Baldwin (1839), 5 M. in which bonds are given by sureties & W. 581 ; Simson v. Cooke (1824), to partners for good conduct of clerks 1 Bing. 452 ; Addison on Contracts, and servants. The security does not 7th ed. p. 857. apply when a change by death or (1) p. 123. otherwise occurs in the partner- (m) Harkins v. Smith, March 11, ship; Chancellor of the University of 1841 ; 16 F. 938.
Dissolution of Contract by Consent. The contract may, of course, be dissolved by consent of both parties, express or implied (o). No particular words are required, and consent may be implied from conduct. Scotch case, decided in 1815, an apprentice was impressed as a seaman; he remained in the navy sixteen years, and he returned home having reached the rank of lieutenant. His master made a claim for breach of contract, but the Courts thought that the fact that he had not made the claim for a number of years amounted to a tacit permission to the apprentice to consider himself released (p).
A master who had made no effort to reclaim an apprentice for years, would no doubt be regarded as having tacitly consented to his release.
BANKRUPTCY does not operate as a dissolution of a contract of hiring and service (9).
The contract of apprenticeship is terminated by bankruptcy.
The Bankruptcy Act of 1869, sec. 33, provides that, where at the time of the presentation of the petition for adjudication, any person is apprenticed or is an articled clerk to the
(0) Rex v. Weddington (1774), Bur. S. C. 766 ; Rex v. Harburton (1789), 1 T. R. 139 ; on other hand, Rex v. Warden (1828), 2 M. & R. 24, and Rex v. Skejjington (1820), 3 B. & A. 382.
(P) Fraser's Master and Servant, 3rd ed. p. 315.
(9) Thomas v. Williams (1834), 1 A. & E. 685; 3 N. & M. 545, clerk hired by the year continues in bankrupt's office after bankrupt. In the middle of year by mutual consent
contract is rescinded ; clerk not
bankrupt, the order of adjudication shall, if either the bankrupt or apprentice require notice in writing to the trustee to the effect, be a complete discharge of the indenture of apprenticeship or articles of agreement.
A trustee has no right to the proceeds of the personal and daily labour of a bankrupt.
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 (r). Williams v. Chambers (8) 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 (t), 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 (u)-a different rule prevailed. No doubt, too, if a person accumulated a large sum, even by personal labour, the assignees might claim it (w). In like manner the trustee, and not the bankrupt, could sue in respect of a sum which was not the remuneration for work and labour, but damages for breach of contract; as in Wadling v. Oliphant (y), 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 (2)—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 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 (a), the trustee of an architect was held entitled to sue for remuneration in respect of a contract to employ the bankrupt as architect, and for damages for wrongful dismissal from such employment. 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” (b).
Sec. 90 of the Act of 1869 says that, “where the bankrupt is in receipt of a salary or income other than as aforesaid (officers, &c.), the Court, upon the application of the trustee,
(z) (1849), 2 H. L. C. 633.
(a) L. R. (1880), 17 Ch. D. 169; L. R. 17 Ch. D. 768 ; also Wadling
v. Oliphant, L. R. 1 Q. B. 145.
(6) Wood, 307.