3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra mænia, as *part of the family; concern[*427] ing whom the statutes before cited (q) have made many very good regulations: 1. Directing that all persons who have no visible effects may be compelled to work. 2. Defining how long they must continue at work in summer and in winter. 3. Punishing such as leave or desert their work. 4. Empowering the justices at sessions, or the sheriff of the county, to settle their wages; and, 5. Inflicting penalties on such as either give, or exact, more wages than are so settled. (8) 4. There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property. Which leads me to consider, II. The manner in which this relation of service affects either the master or servant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days.(r) In the next place persons serving seven years as apprentices to any trade, have an exclusive right to exercise that trade in any part of England. (s) 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 occasioned a great variety of resolutions in the courts of law concerning it; and attempts have been frequently made for its repeal, though hitherto without success. (9) At common law every man might use what trade he pleased; but this statute restrains that liberty to such as have served as apprentices: the adversaries to which provision say, that all restrictions, which tend to introduce monopolies, are pernicious to trade: the advocates for it allege, that unskilfulness in trade is equally detrimental to the public as monopolies. This [*428] reason indeed only extends to such trades, *in the exercise whereof skill is required. But another of their arguments goes much further; viz.: that apprenticeships are useful to the commonwealth, by employing of youth. and learning them to be early industrious; (10) but that no one would be induced to undergo a seven years' servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline: and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute but such as were in being at the making of it: (t) for trading in a country village, apprenticeships are not requisite: (u) and following the trade seven years without any effectual prosecution, either as a master or a servant, is sufficient without an actual apprenticeship. (w) (q) Stat. 5 Eliz. c. 4. 6 Geo. III, c. 26. (r) See pago 364. (8) Stat. 5 Eliz. c. 4, § 31. 417. But in some of the states it is probable that the terms of the statutes are such as to change this rule. Of course an apprentice is not necessarily compensated for his services exclusively in the instruction he receives, and the statutes of some of the states require a small money payment to be made to him when the articles expire. In England at the present time only children whose parents are unable to maintain them can be apprenticed without their own consent, and by statutes 7 and 8 Vic. c. 101, no one can be compelled against his will to take an apprentice. (8) Provisions like these are not to be met with in the United States, except, perhaps, in some of the states where slavery has but recently been abolished. There are statutes, however, for the punishment, as vagrants, of persons having no visible means of support, and in some of the states houses of correction where they can be compelled to labor are provided. (9) The repeal was affected by statute 54 Geo. III, c. 96, and exclusive rights of trading in boroughs were also abolished by statutes 5 and 6 Wm. IV, c. 76. In the United States no such exclusive rights have ever existed. (10) [Lord Coke says this statute was not enacted only that workmen should be skilful, but also that youth should not be nourished in idleness, but brought up and educated in lawful sciences and trades. 11 Co. 54] A master may by law correct his apprentice for negligence or other misbehaviour, so it be done with moderation: (x) though, if the master or master's wife beats any other servant of full age, it is good cause of departure. (y) (11) But if any servant, workman, or labourer, assault his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb. (z) (12) By service all servants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if labourers or servants in husbandry; for the statutes for regulation of wages extend to such servants only; (a) it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. (13) III. Let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may *behave towards others on behalf of his servant: and what a servant may do on behalf of his master. [ *429] And, first, the master may maintain, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities by helping to bear the expense of them, and is called in law maintenance. (b) A master also may bring an action against any man for beating or maiming his servant; but in such case 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. (c) A master likewise may justify an assault in defence of his servant, and a servant in defence of his master: (d) 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. (e) Also if any person do hire or retain my servant, being in my service, for which the servant departeth from me and goeth to serve the other, I may have an action for damages against both the new master and the servant, or either of them: but if the new master did not know that he is my servant, no action lies; unless he afterwards refuse to restore him upon information and demand. (f) (14) The reason and founda (z) (x) 1 Hawk. P. C. 130. Lamb. Eiren. 127. Cro. Car. 179. 2 Show, 289. (y) F. N. B. 168. Bro. Abr. t. Labourers, 51. Trespass, 349 Stat, 5 Eliz. c. 4. (a) 2 Jones, 47. (b) 2 Roll. Abr. 115. (c) 9 Rep. 113. (d) 2 Roll. Abr. 546. (e) In like manner, by the laws of King Alfred, c. 38, a servant was allowed to fight for his master, a parent for his child, and a husband or father for the chastity of his wife or daughter." (f) F. N. B. 167, 168. (11) In the United States provisions are made by statute for some supervision by the parent, guardian, or the proper officer, of the treatment of the apprentice by the master, and a summary hearing of complaints of ill treatment is sometimes provided for, with power in the court to discharge the apprentice from the articles if the circumstances appear to render it proper. (12) This statute is since repealed. (13) [The statutes authorizing the interference of the magistrate in such matters, are repealed by statute 53 Geo. III, c. 40. The amount of wages to menial servants must depend on the contract between them and the master. A servant cannot maintain an action against his master for not giving him a character. 3 Esp. 201. If the master gives a character which is false and slanderous, the servant might sue the master for it; but a master who honestly and fairly gives the real and true character of a servant to one who asks his character, under pretence of hiring him, is not liable to an action for so doing: Bull. N. P. 8; 1 T. R. 110; but if done maliciously, and with an intent to injure a servant, it is otherwise. 3 B. and P. 587. The law will in general presume that a servant has, in the ordinary course of his business, performed his duty, and therefore, a servant in the habit of daily or weekly accounting for money received for his master, will be presumed to have paid over money received. 3 Campb. 10; 1 Stark. 136.] (14) So if one debauch the female servant of another, the master shall have an action against him for the consequent loss of services. In these cases, however, although there must be a right to service on the part of the master, and some evidence from which damage by loss thereof may be inferred, the jury are not limited in their verdict by the damages proved, but may give what are called exemplary damages to compensate for the anxiety, shame and sense of disgrace consequent upon the seduction. A father or any one standing in loco parentis is regarded as master of the daughter for the purpose of maintaining this action; but the daughter at the time must actually reside with him, or if not, he must have a right to recall her to his home at any time, and to control her services. See Clark v. Fitch, 2 Wend, 275 tion 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. (15) As for those things which a servant may do on behalf of his master, they seem all to proceed upon this principle, that the master is answerable for the act of his servant, if done by his command, either expressly given, or implied: nam [*430] qui facit per alium, facit per se. (g) Therefore, if the servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it: though the servant is not thereby 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 restitution: (h) for as there is a confidence reposed in him, that he will take care to provide honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet, cum prohibere possit, jubet. (16) So likewise if the drawer at a tavern sells a 459; Bartley v. Richtmeyer, 4 N. Y. 43; Dain v. Wyckoff, 7 N. Y. 191; id. 18 N. Y. 45; Mulvehall v. Milward, 11 N, Y. 343; Knight v. Wilcox, 14 N. Y. 414. Distinguished jurists have frequently deplored the necessity of proving a loss of service where the parent brings suit for the seduction of the daughter, and in some of the states statutes have been passed making it unnecessary, and authorizing a recovery in the name of some near relative for the benefit of the daughter herself. (15) [If an apprentice earn any thing, the master is entitled to it. 1 Salk. 68; 6 Mod. 69; Co. Litt. 117, a. n. And see Cro, Eliz. 638, 661, 746. And an owner of a ship is entitled to all the earnings of his captain, however irregularly obtained. 3 Campb. 43. And see 1 Stra. 595, S. C.; 2 Stra. 944. So an action on the case may be maintained against a person who continues to employ the master's servant after notice, though the defendant did not procure the servant to leave his master, or know when he employed him that he was the servant of another. 6 T. R. 221; 5 East, 39, n. A master may bring an action on the case for enticing away his servant or apprentice, knowing him to be such; 6 Mod. 182; Peake, C. N. P. 55; Peake Law Evid. 334; Bac. Ab. tit. Master and Servant, 0, 3; Bla. Rep. 142; Cowp. 54; and the defendant cannot avail himself of any objection to the indenture of apprenticeship or contract of hiring. 2 II. Bla. 511; 7 T. R. 310; 1 Anst. 256, But no action can be maintained for harboring an apprentice as such, if the master to whom he was bound was then not a housekeeper, and of the age of twenty-four years. 4 Taunt. 876. And a master cannot maintain an action for seducing his servant after the servant has paid him the penalty stipulated by his articles for leaving him. 3 Burr. 1345; 1 Bla. Rep. 387. The master may, in these cases, waive his action for the tort, and sue in assumpsit for the work and labor done by his apprentice or servant, against the person who tortiously employed him. 1 Taunt. 112; 3 M. and S. 191, S. P. If an injury be committed to goods in the possession of a mere servant, yet if the master have the right of immediate possession he may sue. 2 Saund. 47; 7 T. R. 12. In general a mere servant with whom a contract is made on the behalf of another, cannot support an action thereon. 2 M. and S. 485, 490; 3 B. and P. 147; 1 H. Bla. 84; Owen, 52; 2 New Rep. 411, a.; 2 Taunt. 374; 3 B. and A. 47; 5 Moore, 270. But when a servant has any beneficial interest in the performance of the contract for commission, &c., as in the case of a factor, auctioneer, &c.: 1 T. R. 112; 1 M. and S. 147; 1 H. Bla. 81; 7 Taunt. 237; 2 Marsh. 497; S. C. 6 Taunt. 65; 4 id. 189; or where the contract is in terms made with him: 3 Camp. 320, he may sustain an action in his own name, in each of which cases however the master might sue: 1 H. Bla. 81: 7 T. R. 359; unless where there is an express contract under seal with the servant to pay him, when he alone can sue. 1 M. and S. 575. In general a mere servant, having only the custody of goods, and not responsible over, can not sue for an injury thereto: Owen, 52; 2 Saund, 47, a, b. c. d; but if the servant have a special property in the goods, as a factor, carrier, &c., for commission, he may. 2 Saund. 47, b. c. d.: 2 Vin. Ab. 49; I Ves. Sen. 359; 1 B. and A. 59. (16) [It has been long established law, that the innkeeper is bound to restitution if the guest is robbed in his house by any person whatever; unless it should appear that he was robbed by his own servant, or by a companion whom he brought with him. 8 Co. 33. And where an innkeeper had refused to take charge of goods because his house was full; yet he was held liable for the loss, the owner having stopped as a guest, and the goods being stolen during his stay. 5 T. R. 273. But the innkeeper may be discharged of this general liability by the guest taking upon himself the care of his goods, or, having noticed circumstances of suspicion, neglects to exercise ordinary care in securing his property. 4 M. and S. 306; Holt, C. N. P. 209; 1 Bar. and A. 59.] See McKee v. Owen, 15 Mich. 115, for a discussion as to whether the proprietors of steamboats, who furnish their guest with state rooms and accommodations similar to those provided by innkeepers, are not to be held subject to the same legal liabilities, man bad wine, whereby his health is injured, he may bring an action against the master: (i) for although the master did not expressly order the servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general command. (17) 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 answerable for it: if I pay it to a clergyman's or a physician's servant, 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 lease of a farm, without the owner's knowledge, 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 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) (18) (i) 1 Roll. Abr. 95. (k) Dr. and Stud. d. 2, c. 42. Noy's Max. c. 44. (17) [Where it is the master's duty to see that the servant acts correctly, the master may be even criminally responsible for the servant's conduct; as where a baker's servant introduced noxious ingredients into bread. 3 M. and S. 111; 1 Ld. Raym. 264; 4 Campb. 12. So also [at common law] an indictment for libel contained in an article in a newspaper will lie against a person interested in the profits, without showing that he authorized the insertion of the libelous article. 1 M. and M. 437; 4 Tyr. 677. Nevertheless, the general rule is that the master is not criminally liable for the criminal acts of his servant. 8 Rep. 59; 2 Str. 886.] (18) [It is a general rule of law, that all contracts made by a servant within the scope of his authority, either express or implied, bind the master; and this liability of the master is not founded on the ground of the master being pater familiæ, but merely in respect of the authority delegated to the servant. See 3 Wils. 341; 2 Bla. Rep. 845; 3 Esp. Rep. 235. Much difficulty is experienced in practice in the application of this rule, on the question as to what amounts to a servant's acting within the authority delegated to him. The main point to be attended to in the decision of this, is to consider whether the servant was acting under a special or a general authority. A special agent or servant is one who is authorized to act for his master only in some particular instance; his power is limited and circumscribed. A general servant or agent is one who is expressly or impliedly authorized by his master to transact all his business, either universally or in a particular department or course of business. A master is not liable for any acts of a special agent or servant unconnected with the object of the employment, but he is liable for all the acts of a general agent or servant within the scope of his employment, and this even though the master may have expressly forbidden the particular act for which he is sought to be rendered liable. Thus, if a master engage a servant to take care of goods, and the servant sell them, the selling of the goods being totally unconnected with the object for which the servant had them, the sale would not bind the master. So where the chaise of the master had been broken by the negligence of his servant, and the servant desired the coachmaker, who had never been employed by the master to repair it, it was held that the master was not liable for such repairs. 4 Esp. 174. So when the master is in the habit of paying ready money for articles furnished in certain quantities to his family, if the tradesman delivers other goods of the same sort to the servant upon credit, without informing the master of it, and the latter goods do not come to the master's use, he is not liable. 3 Esp. 214; 1 Show. 95; Peake N. P. C. 47; 5 Esp. 76. But, on the other hand, if a servant is employed to sell a horse, and he sells it with a warranty, the master would be liable for a breach of the warranty, because the act of warranty was connected with the act of sale, and within the scope of the servant's authority, even though he had received express directions not to make the warranty. See 3 T. R. 757; 5 Esp. 75; 1 Camp. 258; 3 Esp. 65; 3 B. and C. 38; 4 D. and R. 648; S. C., 15 East, 38. If a servant usually buys for his master on credit, and the servant buys some things without the master's order, the master will be liable; for the tradesman cannot possibly distinguish when the servant comes by order for him or not. Stra. 506; 3 Esp. N. P. Rep. 85, 114; 1 id. 350; 4 id. 174; Peake, C. N. P. 47. In general, if a party acting in the capacity of a servant or agent, discloses that circumstance, or it be known to the person with whom he contracted, such servant or agent is not liable for a breach of the contract: 12 Ves. 352; 15 East, 62, 66; Paley Princ. and Agent, 246; even for a deceitful warranty: 3 P. Wms. 278; if he had authority from his principal to *If a servant, lastly, by his negligence does any damage to a stranger, [*431 ] 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 make the contract. 3 P. Wms. 279. And see 1 Chit. on Pleading, 4th ed. 24. But if a servant or agent covenant under seal, or otherwise engage for the act of another, though he describe himself in the deed as contracting for, and on the behalf of, such other person: 5 East, 148, or he contract as if he were principal. Stra. 995; 1 B. and P. 368; 3 B. and A. 47; 2 D. and R. 307; 1 B. and C. 160, S. C.; 1 Gow. 117; 1 Stark. 14: 2 East, 142; he is personally liable, and may be sued, unless in the case of a servant contracting on behalf of government: 1 T. R. 172, 674; 1 East, 135, 582: so if a servant does not pursue the principal's authority so as to discharge the principal, he will be personally liable: 1 Eg. Ab. 308; 3 T. R. 361; or where he acts under an authority which he knows the master cannot give: Cowp. 565, 6; so where a servant has been authorized by his master to do an act for a third party, and he is put in possession of every thing that will enable him to complete it, and he neglects so to do, he will be personally liable to the third person; as if a servant receives money from his master to pay A, and expressly or impliedly engages to pay him, the latter may sue him on his neglect to pay it, for the servant is considered to hold it on the party's account. 14 East, 590; 2 Rol. Rep. 441; 1 B. and A. 36; 1 J. B. Moore, 74; 3 Price, 58; 16 Vesey, 443; 5 Esp. 247; 4 Taunt. 24; 1 Stark. 123, 143, 150, 372; 1 H. Bla. 218. But if the third party by his conduct shows he does not consider the servant as holding the money on his account, the agent will be discharged on properly appropriating the money to other purposes before he is called upon again by the third party to pay it over. Holt. N. P. 372.ˆ There is a material distinction between an action against a servant for the recovery of damages for the non-performance of the contract, and an action to recover back a specific sum of money received by him; for when a contract has been rescinded, or a person has received money as servant of another who had no right thereto, and has not paid it over, an action may be sustained against the servant to recover the money; and the mere passing of such money in account with his master, or making a rest without any new credit given to him, fresh bills accepted, or further sums advanced to the master in consequence of it, is not equivalent to the payment of the money to the principal: 3 M. and S. 344; Cowper, 565; Stra. 480; but in general, if the money be paid over before notice to retain it, the servant is not liable: Cowp. 565; Bur. 1986; Ld. Raym. 1210; 4 T. R. 553; Stra. 480; Bul. N. P. 133; 10 Mod. 23; 2 Esp. Rep. 507; 5 J. B. Moore, 105; 8 Taunt. 737; unless his receipt of the money was obviously illegal, or his authority wholly void: 1 Camp. 396, 564; 3 Esp. Rep. 153; 1 Stra. 480; Cowp. 69; 1 Taunt. 359; where persons received money for the express purpose of taking up a bill of exchange two days after it became due, and upon tendering it to the holders and demanding the bill, find that they have sent it back protested for non-acceptance to the persons who endorsed it to them, it was held that such persons, having received fresh orders not to pay the bill, were not liable to an action by the holders for money had and received, when upon the bill's being procured and tendered to them, they refused to pay the money. 1 J. B. Moore, 74, and 14 East, 582, 590. A person who as a banker receives money from A to be paid to B, and to other different persons, cannot in general be sued by B for his share: 1 Marsh. Rep. 132; and an action does not lie against a mere collector, trustee or receiver, for the purpose of trying a right in the principal, even though he has not paid over the money. 4 Burr. 1985; Paley, 261, and cases there cited; 1 Selw. N. P. 3d ed. 78; 1 Camp. 396; 1 Marsh. 132; Holt C. N. P. 641. An auctioneer and stakeholder, who are considered as trustees for both parties, are bound to retain the money till one of them be clearly entitled to receive it, and if he unduly pay it over to either party not entitled to it, he will be liable to repay the deposit or stake. 5 Burr. 2639. But in a late case it has been held, that while the stake remains in the hands of the stakeholder, either party may recover back from him his share of the deposit. 7 Price, 54. Servants of government are not in general personally liable, and an officer appointed by government, avowedly treating as an agent for the public, is not liable to be sued upon any contract made by him in that capacity, whether under seal or by parol, unless he make an absolute and unqualified undertaking to be personally responsible: 1 T. Rep. 172, 674; 1 East, 135; 3 B. and A. 47; 2 J. B. Moore, 627; and if the public money actually passes through his hands or that of his agent, for the purpose, or with the intent, that it should be applied to the fulfilment of his fiduciary undertakings, he is not personally liable. 3 B. and B. 275; 3 Meriv. 758; 1 East, 135, 583. The bank of England are the servants of the public, and liable as a private servant for any breach of duty. 1 R. and M. 52; 2 Bingham, 393. In some cases where there is no responsible or apparent principal to resort to, the agent will be liable; as where the commissioners of a navigation act entered into an agreement with the engineer they were held liable: Pal. 251; 1 Bro. Ch. Rep. 101; Hard. 205; and commissioners of highways are personally liable for work thereon, though the surveyor is not: 1 Bla. Rep. 670; Amb. 770; and in some cases the agent alone can be sued, as where a seller chooses to give a distinct credit to a person known to him to be acting as agent for another: 15 East, 62; and a sub-agent cannot sue the principal with whom he had no privity. 6 Taunt. 147; 1 Marsh. 500.] |