cafe he must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss must be proved upon the trial. A master likewise may justify an affault in defence of his fervant, and a servant in defence of his master: the master, because he has an interest in his servant, not to be deprived of his service; the servant, because it is part of his duty, for which he receives his wages, to stand by and defend his master. Also if any person do hire or retain my fervant, being in my service, for which the servant departeth from me and goeth to ferve the other, I may have an action for damages againft both the new master and the fervant, or either of them: but if the new master did not know that he is my fervant, no action lies; unless he afterwards refuse to restore him upon information and demandd. The reason and foundation upon which all this doctrine is built, seem to be the property that every man has in the service of his domestics; acquired by the contract of hiring, and purchased by giving them wages. As for those things which a servant may do on behalf of his master, they feem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expreffly given, or implied: nam qui facit per alium, facit..per fe. Therefore, if the servant commit a trefpafs by the command or encouragement of his master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his master in matters that are honest and lawful. If an innkeeper's servants rob his guests, the master is bound to reftitution': for as there is a confidence repofed in him, that he will take care to provide honest servants, his negligence is a kind of implied confent to the robbery; nam, qui non prohibet, cum prohibere poffit, jubet. So likewise 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 servant 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 same manner, whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker's servant, the banker is anfwerable 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 imbezzles it, I must pay it over again. If a steward lets a lease of a farm, without the owner's knowlege, the owner must stand to the bargain; for this is the steward's business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his servants; and the principal must answer for their conduct: for the law implies, that they act under a general command; and, without such a doctrine as this, no mutual intercourse between man and man could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes up upon trust; for here is no implied order to the tradesman to trust my servant: but if I usually fend him upon trust, or sometimes on trust, and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot pofsibly distinguish when he comes by my order, and when upon his own authority. IF a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. But in these cases the damage must be done, while he is actually employed in the mafter's service; otherwise the servant shalł answer for his own mifbehaviour. Upon this principle, by the common lawi, if a fervant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the mafter; because this negligence happened in his service: otherwife, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must himself answer the damage personally. But now the common law is, in the former cafe, altered by statute 6 Ann. c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants' carelessness. But if such fire happens through negligence of any fervant (whose loss is commonly very little) fuch servant shall forfeit 100%, to be distributed among the fufferers; and, in default of payment, shall be committed to fome workhouse and there kept to hard labour for eighteen months. A master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty's liege people': for the mafter hath the superintendance and charge of all his houshold. And this also agrees with the civil lawm; which holds, that the pater familias, in this and fimilar cases, "ob alterius culpam tenetur, five “fervi, five liberi.” 1 Roll. Abr. 95. C. 44. Dr & Stud. d. 2. c. 42. Noy's max. behaviour. We may observe, that in all the cafes here put, the master 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 servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the fame; that the wrong done by the fer to pay double to the sufferers; or if he vant Eee 2 vant 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. CHAPTER THE FIFTEENTH. OF HUSBAND AND WIFE. T HE second private relation of perfons is that of marriage, which includes the reciprocal duties of husband and wife, or, as most of our elder law books call them, of baron and feme. In the confideration of which I shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence 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 jurifdiction to confider unlawful marriages as a fin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unfcriptural marriages, is the province of the fpiritual courts; which act pro falute animae. And, taking it in this civil light, the law treats it as it does all other contracts; allowing it to be good and valid in all cafes, 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. • Salk. 121. |