[ 431 ] lar, 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 phyfician's fervant, whofe ufual bufinefs 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 fteward's bufinefs. A wife, a friend, a relation, that use to tranfact business for a man, are quoad hoc his fervants; and the principal muft anfwer 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 tradefman 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 trust my fervant: but if I ufually fend him upon truft, or fometimes on truft and fometimes with ready money, I am answerable for all he takes up; for the tradefman cannot poffibly distinguish when he comes by my order, and when upon his own authority (12). IF a fervant, laftly, by his negligence does any damage to a ftranger, the mafter shall answer for his neglect: if a smith's fervant lames a horse while he is fhoeing him, an action lies against the master, and not against the fervant. But in these cafes the damage must be done, while he is actually employed k Dr. & Stud. d. 2. c. 42. Noy's max. c. 44.• (12) 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 fhall be answerable for all he takes up upon credit, till an exprefs order is given to the tradesman not to give him further credit. in the mafter's service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law', if a fervant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his fervice: otherwise, if the fervant, going along the street with a torch, by negligence fets fire to a house; for there he is not in his master's immediate fervice; and muft himself answer the damage perfonally. But now the common law is, in the former cafe, altered by ftatute 6 Anne, c. 3. which ordains that no action fhall be maintained against any, in whofe houfe or chamber any fire fhall accidentally begin; for their own lofs is fufficient punishment for their own or their fervant's carelefsnefs. But if fuch fire happens through negligence of any fervant, (whofe lofs is commonly very little,) fuch fervant fhall forfeit 100l. to be dift: ibuted among the fufferers; and, in default of payment, fhall be committed to fome workhoufe and there kept to hard labour for eighteen months". A mafter is, laftly, chargeable if any of his family layeth or cafteth any thing out of his houfe into the street or common highway, to the damage of any individual, or the common nuifance of his majesty's liege people" for the master hath the superintendance 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, five fervi, five liberi." WE may obferve, that in all the cafes here put, the maf- [432] ter may be frequently a lofer by the truft repofed in his fervant, but never can be a gainer; he may frequently be anfwerable for his fervant's mifbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reafon of this is ftill uniform and the fame; that the wrong done by the fervant is looked upon in law as the I Noy's max. c. 44. m Upon a fimilar principle, by the law of the twelve tables at Rome, a perfon by whofe negligence any fire began, was bound to pay double to the fuffer ers; or, if he was not able to pay, was n Noy's max. c. 44. wrong 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 (13). (13) The law which obliges mafters to answer for the negli gence and mifconduct 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 fecurity and that of others fo greatly depends. And to prevent mafters from being imposed 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 fervant, or a falfe account of his former service; or if any fervant fhall give fuch falfe account, or shall bring a false character, or shall alter a certificate of a character, he fhall, upon conviction before a juftice of the peace, forfeit 20l. with 10s. cofts. The informer is a competent witnefs. 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 perfon who had knowingly given a falfe character of a man to the plaintiff, who was thereby induced to take him into his fervice. But this fervant foon afterwards robbed his master of property to a great amount, for which he was executed. And the plaintiff recovered damages againft 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 ftrict principles of law and juftice. CHAPTER THE FIFTEENTH. OF HUSBAND AND WIFE. TH HE fecond private relation of perfons 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 confideration of which I fhall in the first place inquire, how marriages may be contracted or made; fhall next point out the manner in which they may be diffolved; and fhall, laftly, 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 jurifdiction to confider unlawful marriage 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 spiritual 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, laftly, actually did contract, in the proper forms and folemnities required by law. a Salk. 121. : "Confenfus not FIRST, they must be willing to contract. "concubitus, facit nuptias," is the maxim of the civil law is this cafe and it is adopted by the common lawyers, who indeed have borrowed (efpecially in antient 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 perfons are able to contract themselves in marriage, unless they labour under fome particular difabilities, and incapacities. What thofe are, it will be here our bufinefs to inquire. Now thefe difabilities are of two forts; first, fuch as are canonical, and therefore fufficient by the ecclefiaftical laws to avoid the marriage in the fpiritual court; but these in our law only make the marriage voidable, and not ipfo facto void, until fentence of nullity be obtained. Of this nature are precontract; confanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical difabilities are either grounded upon the exprefs words of the divine law, or are confequences plainly deducible from thence: it therefore being finful in the perfons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclefiaftical magiftrate's coercion; in order to feparate the offenders, and inflict penance for the offence, pro falute animaBut fuch marriages not being void ab initio, but voidable only by fentence of separation, they are esteemed valid to all civil purposes, unless fuch feparation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not fuffer the fpiritual courts to declare such marriages to have been void; becaufe fuch declaration cannot now tend to the reformation of the parties. And therefore when a man had married his first wife's fifter, and after her death the bishop's court was pro rum. Ff. 50. 17. 30. e Co. Litt. 33. d Ibid. 9 ceeding |