Contracts with Corpora tions. of seal of urban authority. may CH. IX. s. 4. directory but imperative, so that, notwithstanding the other party have executed the contract, he cannot recover against the urban authority if the contract was not under seal. "The LegisRequirement lature," observed Lord Bramwell in that case, "has made provisions for the protection of ratepayers, shareholders, and others who must act through the agency of a representative body by requiring the observance of certain solemn ties and formalities. which involve deliberation and reflection. That is the importance of the seal. It is idle to say there is no magic in a wafer. It continually happens that carelessness and indifference on the one side, and the greed of gain on the other, cause a disregard of the safeguards, and improvident engagements are entered into." Specification of penalty. Borough councillors. County councillors. District and parish councillors and guardians. And a similar construction must be put on the 2nd sub-section of the section, so that a contract not specifying any pecuniary penalty cannot be enforced against an urban authority (1). So it was held in British Insulated Wire Co. v. Prescot Union District Council (1). (d) Disqualification of Councillors and Officers. Any person is by sect. 12 of the Municipal Corporations Act, 1882, 45 & 46 Vict. c. 50, disqualified for being elected and being a borough councillor if and while he "has directly or indirectly, by himself or his partner, any share or interest in any contract or employment" [with exceptions for leases, sales of land, loans, newspaper advertisements, and the interests of shareholders in companies]" with, by, or on behalf of the council." This section has been held to apply to an accepted tender from which a councillor had been released (m); but the penalty under sect. 41 of the Act for acting though disqualified is not recoverable for acting after a contract has ceased (n). County councillors, by the incorporation of sect. 12 of the Municipal Corporations Act, 1882, in the Local Government Act, 1888, 51 & 52 Vict. c. 41, by sect. 75 of that Act, are subject to the same disqualifications for interest in contracts as borough councillors. District councillors (except where the council is that of a municipal borough), parish councillors and guardians of the (1) British Insulated Wire Co. v. Prescot Union District Council, [1895] 2 Q. B. 463. An appeal in this case (id. 538) was dismissed without any judg ments, upon it being stated that the Local Government Board would sanction the payment of the arrears due on the invalid contract, in place of which a new contract, containing a penalty clause, had been arranged for. (m) Ford v. Newth, [1901] 1 K. B. 683. (n) Lewis v. Carr (1876), 1 Ex. D. 484, C. A., decided on the repealed sects. 28, 52, 53 of the repealed Municipal Corporations Act, 1835, 4 & 5 Will. 4, c. 76, poor are subject to disqualifications for interest in contracts (with exceptions similar to those in the Municipal Corporations Act) by sect. 46 of the Local Government Act, 1894, 56 & 57 Vict. c. 73; but the disqualification may in the case of a parish councillor be removed by the county council by sect. 46 (3). CH. IX. s. 4. with Corpora Contracts tions. of Education Members of education committees are subject to the same dis- Members qualifications as the members of the councils appointing them, Committees. by sect. 17 (4) of the Education Act, 1902, 2 Edw. 7, c. 42, subject to the proviso of that section that "no such disqualification shall apply to a person by reason only of his holding office in a school or college aided, provided, or maintained by the council," and a short discretionary power of the council to postpone the disqualification under par. 9 of Sched. II. of the Act. not to be interested. Sect. 193 of the Public Health Act, 1875, provides that officers Officers of a local authority shall not be interested in any contract with the authority for any of the purposes of that Act, and sect. 77 of the Poor Law Amendment Act, 1834, 4 & 5 Will. 4, c. 76, has a similar provision in relation to guardians (o) of the poor and any other officers employed in poor relief; and the effect of these sections is, besides subjecting the officer to a penalty, to render the contract illegal, so that it cannot be sued upon by the officer (p). This was held in Melliss v. Shirley Local Board (p). SECT. 5.-Contracts with Parish Officers, &c. Parish officers are bound by law to take care of the casual poor Contracts in the parish (q). And it has been held, that if a private person the poor. relating to pay for absolute necessaries for such casual poor, he may recover the money on an implied contract from the parish officers personally (r). So it has been held, that parish officers cannot recover from the master of a pauper the amount of a surgeon's bill for curing the pauper, although the injury to the latter happened whilst he was acting in his master's employ; the master not having expressly rendered himself liable (s). And where a pauper being casually in the parish of A., met with an accident. therein which disabled her, so that she required immediate medical assistance; but the constable of that parish improperly (0) Davies v. Harvey (1874), L. R., 9 Q. B. 433. (p) Melliss v. Shirley Local Board (1885), 16 Q. B. D. 446, C. A. (q) See 4 & 5 Will. 4, c. 76, s. 54. 91; and see Watson v. Turner (1767), CH. IX. s. 5. with Parish Officers, &c. Contracts Guardians of the poor. removed her to her own parish, and sent for the surgeon of that parish to attend her: the Court held, that it was the duty of the parish officers of A. to have taken the pauper to the nearest house in A., and to have procured medical attendance there; and that they could not, by improperly removing her to another parish, relieve themselves from this liability, and were therefore bound to pay the surgeon's bill (t). But where a pauper had his leg accidentally fractured in one parish, and was conveyed to the nearest and most convenient house, which was in an adjoining parish, and was confined there and was visited by the overseer of the poor of the latter parish, and was, with his knowledge, attended by the surgeon who had the charge of such poor: it was held, that the surgeon might have an action against the overseer for the expenses of the cure; for the overseer's knowledge that the parish surgeon attended the invalid, and his omission to repudiate such attendance, were evidence of a request to the surgeon to render his assistance (u). But the law will not raise an implied promise on the part of the parish where a pauper is settled, to reimburse the money laid out by another parish, in which he happened to be upon the occasion of his illness, in providing necessary medical assistance for him in the latter parish (x). Nor will an action lie by the guardians of one union against those of another, for money paid for the relief of poor persons belonging to the latter, but resident in the former (y). By the Union and Parish Property Act, 1835, 5 & 6 Will. 4, c. 69, s. 7, the guardians of the poor of every union are constituted, from the day of their first meeting as a board, a corporation with power to sue, &c., on contracts (2). And, accordingly, they cannot bind themselves by any contract not under seal, unless it be a contract which is necessarily incident to the purpose and object for which they were incorporated (a); or, unless, after the work ordered is completed, it be adopted by them for corporate purposes (b); and see ante, pp. 271 et seq., as to corporations. (t) Tomlinson v. Bentall (1826), 5 B. & C. 738. (u) Lamb v. Bunce (1815), 4 M. & S. 275; and see Painter v. Williams (1833), 1 C. & M. 810. Deputy overseer not liable unless he personally retain the surgeon, Watling v. Walters (1823), 1 C. & P. 132; and see id. n. (a). (x) Atkins v. Banwell (1802), 2 East, 505. (y) Wycombe Union v. Eton Union (z) And see 5 & 6 Vict. c. 57, s. 16. 349; followed in Nicholson v. Bradfield Union (1866), L. R., 1 Q. B. 620. The engagement of a clerk by the master of the workhouse must, to bind the guardians, be under seal. Austin v. Guardians of Bethnal Green (1874), L. R., 9 C. P. 91. (b) Sanders v. St. Neot's Union (1846), 8 Q. B. 810; Haigh v. North Bierley Union (1858), E., B. & E. 873; Nicholson v. Bradfield Union (1866), L. R., 1 Q. B. 620. For suggestions as to the true limits of the rules stated in the text, see Bramwell, Brett, and Cotton, L.JJ., Hunt v. Wimbledon Local Board (1878), 4 C. P. D. 48. Nor are guardians of the poor liable to pay the salary of a collector of poor-rates, appointed by them in pursuance of an order of the Local Government Board (c). CH. IX. s. 5. Contracts with Parish Officers, &c. And an action cannot be maintained against the guardians of Limit of time a parish or union, for any debt, claim, or demand due from them, for suing guardians. unless such action be commenced within the half-year in which such debt, claim, or demand shall have been incurred or become due; or within three months after the expiration of such halfyear; or unless the Local Government Board has extended the time for payment, by an order made under the Poor Law (Payment of Debts) Act, 1859, 22 & 23 Vict. c. 49, s. 1 (d). Overseers. Churchwardens are so far a corporation that they may make Churchan agreement which is beneficial to the parish, and thereby bind wardens and the parishioners and the succeeding churchwardens. And, accordingly, where the plaintiff's house was so near the church that the five o'clock bell, rung in the morning, disturbed her; and she, to avoid the necessity of quitting her house in consequence, came to an agreement, in writing, with the churchwardens and inhabitants, at a vestry, to erect a cupola and clock at the church; and that, in consideration thereof, the five o'clock bell should not be rung; and a cupola and clock were accordingly erected at the plaintiff's charge: it was held, that the agreement bound the succeeding churchwardens and inhabitants; and an injunction against ringing the bell was granted (e). But churchwardens and overseers could not, even before the Repairs of church, &c. Compulsory Church Rates Abolition Act, 1868, enter into a contract, in their corporate character, to pay for repairs to be done to the parish church; and therefore they are personally liable on such contract (f). So, a churchwarden who employed a person to make a plan of the church, in order that such a plan might be laid before the commissioners for building new churches, was held to be personally liable for the cost of making such plan (g). So, if one churchwarden, without the knowledge of the others, order repairs to be done to the parish church, he will be personally responsible (h). So, an overseer has not, by virtue of his office, any authority to borrow money (i); and therefore a plaintiff cannot recover against several overseers of a parish, money lent to one of them in his capacity of overseer, unless such money was borrowed by the authority of the parishioners, or the rest have M. & G. 736, 751. (c) Smart v. Guardians of West Ham Union (1856), 11 Exch. 867. (d) Baker v. Guardians of Billericay Union (1863), 2 H. & C. 642. (e) Martin v. Nutkin (1724), 2 P. Wms. 266, 268. (f) Furnival v. Coombs (1843), 5 (g) Per Abbott, C.J., Brook v. Guest, cited (1825), 3 Bing. 481. (h) Northwaite v. Bennett (1834), 2 C. & M. 316. (i) Leigh v. Taylor (1827), 7 B. & C. 491. Contracts with Parish CH. IX. s. 5. expressly promised payment (k). So, where goods are supplied or money advanced to the order or at the request of one overseer, Officers, &c. it is for the jury to say, on all the facts of the case, whether credit was given to the parish, or to the overseer individually (1). And so, the retainer of a solicitor by one churchwarden or overseer, will not, per se, render the others liable to the solicitor for his bill of costs (m). Power to litigate. Power to bind their successors. Churchwardens who expended money in the necessary repairs of the church might before the Compulsory Church Rates Abolition Act, 1868, make a rate to reimburse themselves; but could not maintain an action for contribution against any one of the parishioners, who joined at a vestry in signing an order for the repairs (). And it has been held that vestrymen, who at a vestry meeting signed a resolution, ordering the parish surveyor to take steps to defend an indictment against the parish for not repairing a road, are not liable to the attorney employed by the surveyor; because the law considers the resolution of the vestry in such a case, not as the personal undertaking of each vestryman, but as being merely intended to put the surveyor in motion, who is afterwards to be reimbursed by a regular rate upon the whole parish (0). Further, the overseers are not mere ministerial officers, but are bound to make a rate with a proper margin, and to protect the rates by seeing that no improper, i.e., illegal, burden is cast upon them, so that they can litigate rating and settlement cases, and have been allowed the expenses of successfully opposing a bill in Parliament (p). By the Poor Law Audit Act, 1848, 11 & 12 Vict. c. 91, s. 1, if overseers of the poor, by virtue of their office, lawfully contract any debt on account of the parish, within three months prior to the termination of their year of office, and the same shall not have been discharged by them before the termination of their year of office, such debt shall be payable by and recoverable from their immediate successors in office, and chargeable upon the poor-rate of the said parish, in like manner as it would have been by the former overseer. But it has been held, that the statute merely empowers the succeeding overseers to levy a rate for the amount, and does not transfer the contract from one overseer to another (q). (k) Massey v. Knowles (1821), 3 Stark. 65. (1) Eaden v. Titchmarsh (1834), 1 A. & E. 691; and see Kirby v. Banister (1834), 5 B. & Ad. 1069. (m) Marsh v. Davies (1848), 1 Exch. 668. (n) Lanchester v. Frewer (1824), 2 Bing. 361. (0) Sprott v. Powell (1826), 3 Bing. 478, 484; but see Heudebourck v. Langton (1829), 3 C. & P. 566. (p) R. v. White (1884), 14 Q. B. D. 358, C. A. (q) Chambres v. Jones (1850), 5 Exch 229. |