But although trustees and commissioners of public works have a public fund at their disposal, or may be authorized to impose tolls or make rates and assessments, and so collect money for their purposes, they may nevertheless pledge their own personal credit for the fulfillment of the contract they enter into. If they have borrowed money not in conformity with their borrowing powers, or have exceeded their borrowing powers, and have failed consequently to charge the fund at their disposal with the repayment of the loan, and have given the lender no remedy against the rates, tolls, or assessments they are authorized to levy, they may become personally liable, either on the ground that the money was borrowed on their own personal credit, and not on the credit of the fund, (y)1 or that they falsely represented to the borrower that

public moneys in the hands or under the control of the commissioners. Hall v. Taylor, 1 Ell. Bl. & Ell. 113. If judgment is recovered against the officer authorized to be sued, and the commissioners neglect to satisfy the judgment, they may be compelled by mandamus to make a rate and apply it in satisfaction and discharge of the judgment debt. Reg. v. Rotherham, &c., 27 L. J., Q. B. 156. Ward v. Lowndes, 29 L. J., Q. B. 40. Where a debt is due, the creditor is entitled to judgment, although there may be no funds for the payment of it, and the creditor may consequently never be able to enforce his judgment by execution. Bush v. Martin, 2 H. & C. 311; 33 L. J., Ex. 17. Where, by the Lunatic Asylums Act (8 & 9 Vict c. 126), a select number of justices, called "the committee of visitors," were empowered to contract for plans for the erection of a lunatic asylum, and were enabled to sue and be sued

1

in the name of their clerk, and provisions were made for raising funds by subscriptions and by rates, and resolutions were passed at meetings of the committee offering premiums for plans, specifications, and drawings, and appointing an architect, it was held that the committee might be sued in the name of their clerk upon the contracts authorized by these resolutions (Kendall v. King, 17 C. B. 483; 25 L. J., C. P. 132. Cane v. Chapman, 5 Ad. & E. 652), but that the members of the committee could not be made personally liable upon such contracts (Allen v. Waldegrave, 8 Taunt. 565; 2 Moore, 621), nor could execution upon a judgment recovered against the clerk be issued against him. Wormwell v. Hailstone, 4 M. & P. 512; 6 Bing. 668. But see Cobbett v. Wheeler, 7 Jur. N. S. 260.

(y) Parrott v. Eyre, 3 M. & Sc. 857; 10 Bing. 283.

Rockweller 7. Elkhorn Bank, 13 Wis. 653.

they had funds at their disposal for the repayment of the loan, (2) or that they undertook to provide funds for the purpose. They may also contract for supplies of goods, and for work and services, and may hire laborers, under circumstances giving rise to an irresistible presumption that the goods were furnished, and the work was done, on the personal credit of those who gave the order or made the contract, and that the vendor or the workman looked to them for payment, and not to the funds they were authorized to collect. (a)

144. Salaries of public officers.-Public officers appointed by trustees and commissioners of public works, under the authority of acts of parliament, providing that their salaries shall be paid out of the rates to be raised under the authority of the act, cannot render the persons who make the appointment personally responsible for the payment of the salary, unless they have expressly contracted to pay it. (b) The only claim of such officers is against the rates; and, these failing, they must go unpaid. (c) When commissioners of public works, authorized by statute to appoint an officer, are directed to pay him a salary, they impliedly contract, on making the appointment, to pay the salary out of the funds they are directed to administer, so as to give the officer who has accepted the appointment a right to sue them in the name of their clerk or treasurer, (d) and proceed to obtain payment out of the appointed fund; but the commissioners do not incur any personal liability by virtue of

(c) Higgins v. Livingstone, 4 Dow. 355. Eaton v. Bell, 5 B. & Ald. 41.

(a) Horsley v. Bell. Amb. 770; I Bro. C. C. 101, n. Lambert v. Knott, 6 D. & R. 122.

(b) Bogg v. Pearse, to C. B. 534; 20 L. J., C. P. 99. Alexander v.

Warman, 6 H. & N. 100.

(c) Andrews v. Dally, 4 Bing. 566; I M. & P. 490. Smart v. Guard, West Ham. Un., 10 Exch. 875. Addison v. Mayor of Preston, 12 C. B. 108.

(d) Hall v. Taylor, 1 Ell. Bl. & Ell.

113.

the appointment, unless they have entered into an express contract to pay the salary. Whenever a public body is invested with a discretionary power respecting the amount of remuneration to be paid for a particular service, and no express contract has been entered into by the board to pay any particular sum, the court cannot interfere with the exercise of their discretion.1

145. Contracts with local boards of health.-The public health act, 11 & 12 Vict., c. 63, empowers (s. 85) local boards of health to enter into such contracts as are necessary for carrying the act into execution, and provides that the contract, when exceeding £10 in value or amount, shall be in writing, and (in the case of a corporate district) (e) sealed with the common seal of the board, and shall specify the work, materials, matter, or things to be furnished, the price to be paid, and the time within which the contract is to be performed. By s. 140, no contract entered into by the local board shall, if the contract were entered into bona fide for the purpose of executing the act, subject the members, or any of them, personally, to any action, liability, claim, or demand whatsoever;

(e) By the 29 & 30 Vict. c. 90, s. 46, all local boards are incorporated.

'And see in the United States, Ware v. United States, 7 Ct. of Cl. 565; Moren v. Blue, 47 Ala. 709; Reynolds v. Blue, Id. 711; Wallace v. Marion County, 37 Ind. 383; Geisel v. Taylor, Id. 390; Hyland v. Waterworks Co. Id 523; People v. Miller, 24 Mich. 458; Settle v. Van Eurea, 39 N. Y. 280;. Clapp v. United States, 7 Ct. of Cl. 351;. United States v. Wendell, 2 Cliff. 340; Reynolds v. Taylor, 43 Ala. 420; Carroll v. Siebenthaler, 37 Cal. 193; Tenney v. State, 27 Wis 387; Mayfield v. Moore, 53 Ill. 428; Wayne County v. Benoit, 20 Mich. 170. As to extra pay, see Twenty per cent. cases; 13 Wall. 568; United States v. Smith, 1 Bond, 68; Jay County v. Templer, 34 Ind. 322; Chatfield v. Washington County, 3 Oreg. 318; Goldsborough v. United States, Taney, 80; United States v. White, Id. 152; Carlyle v. Sharp, 51 Ill. 71.

and any expense incurred by the local board is to be borne and repaid out of general district rates. There is nothing in these sections to prevent the board from being liable, in its corporate capacity, upon the contracts it has entered into. They show, merely, that the expense incurred by the corporation is to be repaid by a rate, and that the members of the board are not to be individually liable.'

Many of the requirements contained in these sections of the statute are directory only; and a strict compliance with them is not to be treated as a condition precedent to the liability of the board upon the contracts they have entered into; for the parties with whom they contract have no means of ascertaining whether every minute requirement of the statute has been complied with by the board prior to the making of the contract. (f) But that portion of the section which requires the contract to be in writing, and sealed with the common seal, must be strictly complied with in order to render the contract binding upon the rates. (g) Where the members of a local board of health resolved to oppose a gas bill promoted by a public company, and employed parties to make experiments and to give evidence before a committee of the house of commons, it was held that the members of the board, who had acted in their corporate capacity, could not be made personally liable to the parties they had employed. (h) Where a local board entered into a contract for certain work to be done to a street, "the contractor to be paid for the work when,

(f) Nowell v, Mayor, &c. of Worcester, 9 Exch. 467. Cunningham v. Local Board of Wolverhampton, 7 Ell. & Bl. 113.

(g) Frend v. Dennett, 4 C. B., N. S. 583; 27 L. J., C. P. 314.

(h) Bailey v. Cuckson, 32 Law T. R. 124; 7 W. R., Q. B. 16.

'See Dillon on Municipal Corporations, 305 (n.).

and as the money is collected, from the owners of the property adjacent," and the board was unable to collect the necessary funds from the owners, by reason of the notices served upon them proving informal, it was held that there was an implied undertaking, on the part of the board, to do all things necessary to enable them to fulfill the contract, and that their inability, by reason of the defective notice, to collect the necessary funds, was no answer to an action by the contractor to recover the cost of the works. (i)

146. Contracts with parish officers.-Agreements entered into by churchwardens and parishioners will, under certain circumstances, be binding upon the parish. Thus, where the plaintiff's house was so near the church that the five o'clock bell rung in the morning disturbed her, and it was agreed between her and the churchwardens and parishioners, in vestry assembled, that a cupola and clock should be erected by her on the church, and that, in consideration of this being done, the five o'clock bell should not be again rung during her life, and the cupola and clock were accordingly erected, and the bell was silenced for two years, after which time it was rung again, the court of chancery held that the agreement was binding upon the parish, and granted an injunction against the ringing of the bell. (k) But, as churchwardens, overseers of the poor, and parish officers, have no power of contracting so as to give any right of action against the parish, they are themselves personally responsible upon all contracts entered into by them in the exercise of the duties of their office, (7) unless the party they have contracted with. agrees to look exclusively to the

(1) Worthington v. Sudlow, 34 L. J., Q. B. 131.

(4) Martin v. Nutkin, 2 P. Wms. 266.

(2) Kirby v. Bannister, 5 B. & Ad.

1069.

456.

Crew v. Petit, 3 N. & M.