reasonable cause to be allowed by a juftice of the peace: but they may part by confent, or make a fpecial bargain.

2. ANOTHER fpecies of fervants are called apprentices (from apprendre, to learn) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and inftructed by them. This is ufually done to perfons of trade, in order to learn their art and mystery; and fometimes very large fums are given with them, as a premium for such their inftruction: but it may be done to husbandmen, nay to gentlemen and others. And children of poor perfons may be apprenticed out by the overfeers, with confent of two juftices, till twenty four years of age, to fuch perfons as are thought fitting; who are alfo compellable to take them: and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion': for which purposes our statutes have made the indentures obligatory, even though fuch parish-apprentice be a minor. Apprentices to trades may be discharged on reasonable caufe, either at requeft of themfelves or masters, at the quarter feffions, or by one juftice, with appeal to the feffions *; who may, by the equity of the ftatute, if they think it reasonable, direct reftitution of a ratable share of the money given with the apprentice and parish apprentices may be difcharged in the fame manner, by two juftices". But if an apprentice, with whom lefs than ten pounds hath been given, runs away from his mafter, he is compellable to ferve out his time of abfence, or make fatisfaction for the fame, at any time within feven years after the expiration of his original contract".

3. A THIRD fpecies of fervants are labourers, who are only hired by the day or the week, and do not live intra moenia, as

part

I

part of the family; concerning whom the ftatutes before cited have made many very good regulations; 1. Directing that all perfons who have no visible effects may be compelled to work; 2. Defining how long they muft continue at work in fummer and winter: 3. Punishing fuch as leave or defert their work : 4. Empowering the juftices at feffions, or the fheriff of the county, to fettle their wages and 5. Inflicting penalties on fuch as either give, or exact, more wages than are fo fettled.

4. THERE is yet a fourth fpecies of fervants, if they may be fo called, being rather in a fuperior, a ministerial, capacity; such as ftewards, factors, and bailiffs: whom however the law confiders as fervants pro tempore, with regard to fuch of their acts, as affect their master's or employer's property. Which leads me to confider,

II. THE manner in which this relation, of service, affects either the master or fervant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a fettlement in that parish wherein he laft ferved forty days. In the next place perfons, ferving as apprentices to any trade, have an exclufive right to exercise that trade in any part of England". This law, with regard to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one, according to the prevailing humour of the times: which has occafioned a great variety of refolutions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without fuccefs. At common law every man might ufe what trade he pleased; but this statute restrains that liberty to fuch as have ferved as apprentices: the adverfaries to which provifion fay, that all reftrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it allege, that unfkilfulness in trades is equally detrimental to the public, as monopolics. This reafon indeed only extends to fuch trades, in the exercise Fff 2

whereof

o Stat. 5 Eliz. c. 4. 6 Geo. III. c. 26.

P

See pag. 354.

q Stat. 5 Eliz. c. •

whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; but that no one would be induced to undergo a feven years fervitude, if others, though equally skilful, were allowed the fame advantages without having undergone the fame difcipline and in this there feems to be much reason. However, the refolutions of the courts have in general rather confined than extended the reftriction. No trades are held to be within the ftatute, but fuch as were in being at the making of it; for trading in a country village, apprenticeships are not requifite: and following the trade seven years is fufficient without any binding; for the ftatute only fays, the perfon must serve as an apprentice, and does not require an actual apprenticeship to have existed'.

A MASTER may by law correct his apprentice or fervant for negligence or other mifbehaviour, fo it be done with moderation": though, if the mafter's wife beats him, it is good cause of departure". But if any fervant, workman, or labourer affaults his master or dame, he shall suffer one year's imprisonment,and other open corporal punishment, not extending to life or limb,

By fervice all fervants and labours, except apprentices, bccome entitled to wages: according to their agreement, if menial fervants; or according to the appointment of the fheriff or feffions, if labourers or fervants in husbandry: for the ftatutes for regulation of wages extend to such servants only'; it being impoffible for any magiftrate to be a judge of the employment of menial fervants, or of course to affefs their wages.

III. LET us, laftly, fee how ftrangers may be affected by this relation of mafter and fervant: or how a mafter may behave to

wards

r Lord Raym. 514.

1 Vent. 51.

2 Keb. 583.

Lord Rayın. 1179.

a Hawk. P. C. 13. Lamb. Eiren. 127.

w F. N. B. 168.

x Stat. 5. Eliz. c. d.

y & Jones. 47.

wards others on behalf of his fervant; and what a servant may do on behalf of his mafter.

AND, first, the mafter may maintain, that is, abet and affift his fervant in any action at law against a stranger: whereas, in general, it is an offence against public juftice to encourage fuits and animofities, by helping to bear the expense of them, and is called in law maintenance". A mafter alfo may bring an action against any man for beating or maiming his fervant; but in fuch case he must assign, as a special reason for so doing, his own damage by the lofs of his fervice; and this lofs must be proved upon the trial'. A mafter likewife may juftify an affault in defence of his fervant, and a fervant in defence of his master: the mafter, because he has an interest in his fervant, not to be deprived of his fervice; the fervant, because it is part of his duty, for which he receives his wages, to ftand by and defend his master. Also if any perfon do hire or retain my servant, being in my fervice, for which the fervant departeth from me and goeth to serve the other, I may have an action for damages against both the new master and the fervant, or either of them: but if the new mafter did not know that he is my fervant, no action lies; unless he afterwards refuse to restore him upon information and demand". The reafon and foundation, upon which all this doctrine is built, seem to be the property that every man has in the service of his domeftics; acquired by the contract of hiring, and purchased by giving them wages.

As for thofe things which a fervant may do on behalf of his mafter, they seem all to proceed upon this principle, that the matter is answerable for the act of his fervant, if done by his command, either exprefsly given, or implied: nam qui facit per alium, facit per fe. Therefore, if the fervant cominit a trefpafs

by

2 2 Roll. Abr. 115,

a 9 Rep. 113.

b

Roll. Abr. 546.

en ke manner, by the laws of king Alfred. 38. a fervant was allowed to fight

fo: his mafter, a parent for his child, and
a bufband or father for the chastity of his
wife or daughter.

d F. N. B. 167, 168.
с 4 Inft. 109.

by the command or encouragement of his master, the master shall be guilty of it not that the fervant is excused, for he is only to obey his master in matters that are honeft and lawful. If an innkeeper's fervants rob his guests, the mafter is bound to reftitution': for as there is a confidence repofed in him, that he will take care to provide honeft fervants, his negligence is a kind of implied consent to the robbery; 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 master": for, although the master did not expressly order the fervant to fell it to that perfon 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 course of his bufinefs, is equivalent to a general command. If I pay money to a banker's fervant, the banker is anfwerable for it; if I pay it to a clergyman's or a physician's ferwant, whose usual business it is not to receive money for his master, and he embezzles it, I must pay it over again. If a steward lets a leafe of a farm, without the owner's knowlege, the owner muft ftand to the bargain; for this is the steward's bufinefs. A wife, a friend, a relation, that use to tranfact business for a man, are quoad hoc his fervants; and the principal must answer for their conduct for the law implies, that they act under a general command; and, without fuch a doctrine as this, no mutual intercourfe 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 fervant: but if I ufually fend him upon truft, or sometimes on truft and fometimes with ready money, I am answerable for all he takes up; for the tradesman cannot poffibly diftinguish when he comes by my order, and when upon his own authority".

f Noy's max. c. 43. g1 Roll, Abr. 95.

IF

h Dr & Stud. d. 2 c. 42. Noy's max.

C. 44.