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 send him upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority k (11).

Ir a servant, lastly, by his negligence does any [431] damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoeing 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 master's service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law, if a servant kept his masters fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, 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 case, altered by statute 6 Anne, 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 suffi

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

1 Noy's max. c. 44.

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

cient punishment for their own or their servant's carelessness. But if such fire happens through negligence of any servant, (whose loss is commonly very little,) such servant shall forfeit 100l. to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labor for eighteen months m. 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 nuisance of his majesty's liege people": for the master hath the superintendance and charge of all his household. And this also agrees with the civil law; which holds that the pater familias, in this and similar cases," ob alterius culpam tenetur, sive servi, sive liberi."


We may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, 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 same; that the wrong done by the servant 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).

m Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began, was bound to pay double to the sufferers; or, if he was not able

to pay, was to suffer a corporal punishment. n Noy's max. c. 44.

o FL. 9. 3. 1. Inst. 4. 5. 1.

(12) In a late case where it was proved that a servant wilfully drove his master's chariot against a chaise, but that the master was not present, nor did he in any manner direct, or assent to, the act of the servant, it was held by the court of king's bench, that the owner of the chaise could not maintain an action of trespass against the master. Macmanus v. Crickett. 1 East. 106. From that and the cases there cited and considered, the following general conclusions may be drawn; where the act of the servant is wilful, and such that an action of tres

pass, and not an action upon the case, must be brought, the master is not responsible, unless the act is done by his command or assent.

But where mischief ensues from the negligence or unskilfulness of the servant, so that an action upon the case must be brought, and not an action of trespass, then the master will be answerable for the consequences in an action upon the case, if it is shewn that the servant is acting in the execution of his master's business and authority.

The law which obliges masters to answer for the negligence and unskilfulness of their servants, though oftentimes severe upon an innocent person, is founded upon principles of public policy, in order to induce masters to be careful in the choice of their servants, upon whom both their own security and that of others so greatly depends. And to prevent masters from being imposed upon in the characters of their servants, 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 servant shall give such false account, or shall bring a false character, or shall alter a certificate of a character, he shall, upon conviction before a justice of the peace, forfeit 201. with 10s. costs. The informer is a competent witness. But if any servant will inform against an accomplice, he shall be acquitted.

An action was tried at the sittings 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 service. But this servant soon afterwards robbed his master of property to a great amount, for which he was executed; and the plaintiff recovered damages against the defendant to the extent of his loss. 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 justice.



THE second private relation of persons is that of marriage,

which includes the reciprocal rights and duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place inquire, 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 considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left. entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriage as a sin, 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 salute 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 cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.

a Salk. 121.

FIRST, they must be willing to contract. "Consensus non "concubitus, facit nuptias," is the maxim of the civil law in this case: and it is adopted by the common lawyers, who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

SECONDLY, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labor under some particular disabilities, and incapacities. What those are, it will be here our business to inquire.

Now these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons who labor under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties d. And therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage

b Ff. 50. 17.30.

e Co. Litt. 33.

d Ibid.

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