vant commit a trespass by the command or encouragement

of his master, the master shall be guilty of it, though the [430] · servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's fervants rob his guests, the mafter is bound to reftitution for as there is a confidence reposed in him, that he will take care to provide honeft fervants, his negligence is a kind of implied consent to the robbery (10); nam, qui non prohibet, cum prohibere poffit, jubet. So likewife, if the drawer at a tavern fells a man bad wine, whereby his health is injured, he may bring an action against the masteri: for although the mafter did not exprefsly order the fervant to fell it to that person in particular, yet his permitting him to draw and fell it at all is impliedly a general command.

IN the fame manner, whatever a fervant is permitted to do in the ufual courfe of his bufinefs, is equivalent to a general command. If I pay money to a banker's fervant, the banker is answerable for it: if I pay it to a clergyman's or a physician's fervant, whose usual business it is not to receive money for his mafter, and he embezzles it, I muft pay it over again. If a steward lets a lease of a farm, without the owner's knowledge, the owner must stand to the bargain; for this is the fteward's business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his fervants; and the principal must answer for their i 1 Roll. Abr. 95.

b Noy's max. c. 43.

(10) But it has been long established law, that the innkeeper is bound to reftitution if the guest is robbed in his house by any person whatever; unless it should appear that he was robbed by his own fervant, or by a companion whom he brought with him. 8 Co. 33. And where an innkeeper had refused to take the charge of goods, because his house was full; yet he was held liable for the lofs, the owner having stopt as a guest, and the goods being ftolen during his stay. 5 T. R. 273. Q93

conduct;

[ 43 ]

:

conduct for the law implies, that they act under a general command; and without fuch a doctrine as this no mutual intercourse between man and man could fubfift with any tolerable convenience. If I ufually deal with a tradesman by myself, or conftantly pay him ready money, I am not anfwerable for what my fervant takes up upon truft; for here is no implied order to the tradefman to truft my servant : but if I ufually fend him upon truft, or fometimes on trust and fometimes with ready money, I am anfwerable for all he takes up for the tradefinan cannot poffibly distinguish when he comes by my order, and when upon his own authority (11)

k

Ir a fervant, laftly, by his negligence does any damage to a ftranger, the mafter fhall anfwer for his neglect; if a fmith's fervant lames a horfe while he is thoeing him, an action lies against the mafter, and not against the servant. But in thefe cafes the dainage must be done while he is actually employed in the mafter's fervice; otherwise the fervant fhall anfwer for his own mifbehaviour. Upon this principle, by the common law, if a fervant kept his master's fire negligently, fo that his neighhour's house was burned down thereby, an action lay against the mafter; because this negligence happened in his fervice; otherwife, if the fervant, going along the street with a torch, by negligence fets fire to a houfe; for there he is not in his mafter's immediate fervice, and muft himself answer the damage perfonally. But now the common law is, in the former cafe, altered by statute 6 Anne, c. 3. which ordains that no action fhall be maintained against any in whose

k Dr. & Stud. d. 2. c. 42. Noy's max. c. 44. I Noy's max. c. 44.

(11) And if I once pay for what my fervant has bought upon truft, without expreffing any disapprobation of it, it is equivalent to a direction to truft him in future; and I shall be answerable for all he takes up upon credit, till an exprefs order is given to the tradesman not to give him further credit.

houfe or chamber any fire fhall accidentally begin; for their own lofs is fufficient punishment for their own or their fervant's carelessnefs. But if fuch fire happens through negligence of any fervant (whofe lofs is commonly very little), such servant shall forfeit 100l. to be diftributed among the sufferers; and, in default of payment, shall be committed to fome workhoufe, and there kept to hard labour for eighteen months m. A master is, laftly, chargeable if any of his family layeth or cafteth any thing out of his house into the street or common highway, to the demage of any individual, or the common nuisance of his majesty's liege people": for the mafter hath the superintendence and charge of all his household. And this alfo agrees with the civil law; which holds that the pater familias, in this and fimilar cafes, ob alterius culpam tenetur, fivi fervi five liberi."

We may observe, that in all the cafes here put, the master [432] may be frequently a lofer by the trust reposed in his fervant, but never can be a gainer; he may frequently be answerable for his fervant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is ftill uniform and the fame; that the wrong done by the fervant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong. (12)

(12) In a late cafe where it was proved that a fervant wilfully drove his master's chariot against a chaise, but that the master was not prefent, nor did he in any manner direct, or affent to, the act of the fervant, it was held by the court of king's bench, that the owner of the chaife could not maintain an action of trespass agaiuft the master. Macmanus v. Cricket. 1 Eaft, 106. From that and the cafes there cited and confidered, the following

general conclufions may be drawn; where the act of the fervant is wilful, and fuch that an action of trespass, and not an action upon the case, must be brought, the master is not responsible, unless the act is done by his command or affent.

But where mischief enfues from the negligence or unskilfulness of the fervant, so that an action upon the cafe must be brought, and not an action of trefpafs, then the mafter will be answerable for the confequences in an action upon the cafe, if it is fhewn that the fervant is acting in the execution of his master's business and authority.

The law which obliges matters to answer for the negligence and unskilfulness of their fervants, though oftentimes fevere upon an innocent perfon, is founded upon principles of public policy, in order to induce masters to be careful in the choice of their fervants, upon whom both their own security and that of others fo greatly depends. And to prevent mafters from being impofed upon in the characters of their fervants, it is enacted by 32 Geo. III. c. 56. that if any person shall give a false character of a servant, or a false account of his former service; or, if any fervant shall give such false account, or fhall bring a false character, or fhall alter a certificate of a character, he fhall, upon conviction before a justice of the peace, forfeit 20l. with 10s. cofts. The informer is a competent witness. But if any fervant will inform against an accomplice, he fhall be acquitted.

An action was tried at the fittings after Trinity-term 1792, at Guildhall, against a person who had knowingly given a false character of a man to the plaintiff, who was thereby induced to take him into his fervice. But this fervant foon afterwards robbed his. mafter of property to a great amount, for which he was executed; and the plaintiff recovered damages against the defendant to the extent of his lofs. This was an action of great importance to the public, and there can be no doubt but it was founded in strict principles of law and juftice. Parley v. Freeman.

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE HE second private relation of persons is that of marriage, which includes the reciprocal rights and duties of hufband and wife; or, as most of our elder law-books call them, of baron and feme. In the confideration of which I fhall, in the first place, inquire, how marriages may be contracted or made; shall next point out the manner in which they may be diffolved; and fhall, lastly, take a view of the legal effects and confequence of marriage.

I. OUR law confiders marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclefiaftical law: the temporal courts not having jurisdiction to confider unlawful marriage as a fin, but merely as a civil inconvenience. The punishment, therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro falute animae . And, taking it in a civil light, the law treats it as it does all other contracts: allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract; fecondly, able to contract; and, lastly, actually did contract, in the proper forms and folemnities required by law.

a Salk. 121.