employed in the master's service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law, (1) if a servant 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 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 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 servant's carelessness. (19) But if such fire happens through negligence of any servant, whose loss is commonly very little, such servant shall forfeit 1007., to be distributed among the sufferers; and, in default of payment shall be committed to some workhouse, and there kept to hard labour 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: (n) for the master hath the superintendence and charge of all his household. And this also agrees with the civil law; (0) which holds that the pater familias, in this and similar cases, "ob alterius culpam tenetur, sive servi, sive liberi.” (20)

(1) Noy's Max. c. 44.

(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.

(0) Ff. 9, 3, 1. Inst. 4, 5, 1.

(19) The substance of the statute of Anne will be found re-enacted in some of the American states. See Taylor, Land. and Ten. § 196. In the others it is perhaps to be regarded as having been adopted as a part of the American common law. The absence of precedents for the recovery of damages in such cases, when the cases themselves occur so frequently, is strong evidence of the opinion of the legal profession to this effect, and perhaps the legislation making railroad companies liable for injuries caused by fire communicated by their engines has some bearing in the same direction. Lansing v. Stone, 37 Barb. 15, is a decision directly to the point that these statutes constitute a part of the American common law.

(20) [A master is liable to be sued for the injuries occasioned by the neglect or unskilfulness of his servant while in the course of his employment, though the act was obviously tortious and against the master's consent; as for fraud, deceit, or any other wrongful act. 1 Salk. 289; Cro. Jac. 473: 1 Stra. 653; Roll. Ab. 95, 1, 15; 1 East, 106; 2 H. Bla. 442; 3 Wils. 313; 2 Bla. Rep. 845. A master is liable for the servant's negligent driving of a carriage or navigating a ship: 1 East, 105; or for a libel inserted in a newspaper of which the defendant was a proprietor. 1 B. and P. 409.

In some cases where it is the duty of the master to see that the servant acts correctly, he may be liable criminally for what the servant has done; as where a baker's servant introduced noxious materials in his bread. 3 M. and S. 11; 1 Ld. Raym. 264; 4 Camp. 12.

A servant cannot in general be sued by a third person for any neglect or nonfeasance which he is guilty of, when it is committed on behalf of, and under the express or implied authority of, his master; thus if a coachman lose a parcel, his master is liable and not himself. 12 Mod. 488; Say, 41; Roll. Ab. 94, pl. 5; Cowp. 403; 6 Moore, 47. So a servant is not liable for deceit in the sale of goods, or for a false warranty. Com. Dig. Action sur case for deceit, B; 3 P. W. 379; Roll. Ab. 95. But he is liable for all tortious acts and wilful trespasses, whether done by the authority of the master or not. 12 Mod. 448; 1 Wils. 328; Say. 41; 2 Mod. 242; 6 id. 212; 6 East, 540; 4 M. and S. 259; 5 Burr. 2687; 6 T. R. 300; 3 Wils. 146. And in every case where a master has not power to do a thing, whoever does it by his command is a trespasser: Roll. Ab. 90; and this though the servant acted in total ignorance of his master's right. 12 Mod. 448, and supra; 2 Roll. Ab. 431. And an action may in some cases be supported against a servant for a misfeasance or malfeasance; thus if a bailiff voluntarily suffer a prisoner to escape, he would be liable. 12 Mod. 488; 1 id 209; 1 Salk. 18; 1 Lord Ray. 655.

It is a general rule that no action is sustainable against an intermediate agent for damage occasioned by the negligence of a sub-agent, unless such intermediate agent personally interfered and caused the injury. 6 T. R. 411; 1 B. and P. 405, 411; Cowp. 406; 2 B. and P. 438; 6 Moore, 47; 2 P. and R. 33.]

The maxim qui facit per alium facit per se has general application to the relation of master and servant, wherever the master's assent to the act done or undertaking entered into by the servant on his behalf can be implied, either from his instructions or from the general scope

[*432] *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.

CHAPTER XV.

OF HUSBAND AND WIFE.

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.

of his employment. Upon this see Broom's Maxims, 4th ed. 668, and also the works on Agency and Contracts.

Where a wrongful act is done by a servant by the express direction of the master, or in his master's presence so that his assent is presumed, or as the natural or probable result of orders given by the master, or in the exercise of a discretion which the master has given, and an injury results to a third person, the master is responsible therefor to the same extent as if he had himself done the act in person. McLaughlin v. Pryor, 4 M. and G. 48; Gregory v. Piper, 9 B. and C. 591; Green v. Omnibus Co., 7 C. B. 290; Lee v. McKay, 3 Ired. 29; Harlow v. Humiston, 6 Cow. 189; Meyer v. Second Av. R. R. Co., 8 Bosw. 305; Hewett v. Swift, 3 Allen, 420; Evansville, &c., R. R. Co. v. Baum, 26 Ind. 70; Howe v. Newmarch, 12 Allen, 49.

And where the servant in the course of his employment so negligently conducts himself, or with such want of skill or prudence manages the business, as to cause loss or damage to third persons, the master may be held responsible therefore. Bush v. Steinman, 1 B. and P. 404; Tarrant v. Webb, 18 C. B. 797; Freer v. Cameron, 4 Rich. 228; Perry v. Marsh, 25 Ala. 659; Chicago, &c., R. R. Co. v. Harney, 28 Ind. 28; Douglass v. Stephens, 18 Mo. 362; Seymour v. Greenwood, 7 H. and N. 355; McDonald v. Snelling, 14 Allen, 290.

The mere fact, however, that one is servant of another, does not make the other liable for the negligent or wrongful conduct of the servant, unless he was at the time engaged in the master's business or executing his expressed or implied commands. Lyons v. Martin, 8 A. and E. 512; Mitchell v. Crassweller, 13 C. B. 237. And where a servant, even though at the time employed in the master's service, steps aside from his duty to commit a trespass or other wrong to another, the servant alone is responsible for such wrongful conduct. McManus v. Crickett, 1 East. 106; Lyons v. Martin, 8 A. and E. 512; Croft v. Alison, 4 B. and Ald. 590; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479; Fox v. Northern Liberties, 3 W. and S. 103; Church v. Mansfield, 20 Conn. 284; Wright v. Wilcox, 19 Wend. 347; Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. 455; Yates v. Squires, 19 Iowa, 26; Cox v. Keahey, 36 Ala. 340.

The rule that the master shall respond for the negligent acts of his servants, is one for the protection of third persons only; and a servant who is injured by the want of care of fellow servants in doing or omitting to do their portion of the common work, cannot recover compensation from the master therefor. Farwell v. Boston and Worcester R. R. Co. 4 Met. 49; Hayes v. Western R. R. Corp. 3 Cush. 270; Beaulieu v. Portland Co., 48 Me. 294; Warner v. Erie R. R. Co., 39 N. Y. 470; Caldwell v. Brown, 53 Penn. St. 457; Moseley v. Chamberlain, 18 Wis. 700: O'Connell v. Baltimore and Ohio R. R. Co. 20 Md. 212; Harrison v. Central R. R. Co., 31 N. J. 293; Searle v. Lindsay, 11 C. B. N. S. 429; Caldwell v. Brown, 53 Penn. St. 453. Unless, indeed, the servant causing the injury was an incompetent or otherwise improper person to be employed in such business, and the master was himself guilty of negligence in employing him. Wiggett v. Fox, 36 Eng. L. and Eq. 486; Tarrant v. Webb, 18 C. B. 797; Wright v. N. Y. Central R. R. Co., 25 N. Y. 562; Michigan Central R. R. Co. v. Leahey, 10 Mich. 193; Thayer v. St. Louis &c., R. R. Co., 22 Ind. 26: Stewart v. Harvard College, 12 Allen, 58; Stone v. Western Trans. Co., 38 N. Y. 240; McMahon v. Davidson, 12 Minn. 357. Some disposition has also been manifested to hold the master liable to a servant who is injured by the negligence of another servant, where the duties of the latter, in connection with which the injury happened, were not common nor in the same department with those of the injured servant, and where the negligence of the injured servant did not contrib

I. Our law considers marriage in no other light than as a civil contract. (1) 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 animæ. (a) 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

(a) Salk. 121.

ute to the injury. Gillenwater v. Madison and Ind. R. R. Co., 5 Ind. 349; Fitzpatrick v. N. A. and Salem R. R. Co., 7 Ind. 436: see Chamberlain v. M. and M. R. R. Co., 11 Wis. 238; Cooper v. Mullins, 30 Geo. 146. Also to hold him responsible where the servant injured was subordinate to and under the control and direction of the servant whose negligence caused the injury. C. C. and C. R. R. Co. v. Keary, 3 Ohio, N. S. 201. But see Gilshannon v. Stony Brook R. Corp., 10 Cush. 228; Sherman v. Rochester, &c., R. R. Co., 17 N. Y., 153; Wright v. N. Y. Central R. R. Co., 25 N. Y. 562; Carle v. Canal and R. R. Co., 23 Me. 269; Ryan v. Cumberland Valley R. R. Co., 23 Penn. St. 384; Ohio, &c., R. R. Co. v. Hammersley, 28 Ind. 371; Morgan v. Vale of Neath R. Co., Law R., 1 Q. B. 149. And even where the master is himself guilty of negligence, in employing improper servants or in other matters which increase the risk to the servant, if the latter is aware of all the facts and continues in the service notwithstanding, he will be held to have taken upon himself the risk and cannot look to the master for indemnity. M. R. and L. E. R. R. Co. v. Barber, 5 Ohio, N. S. 564; Ind. and Cin. R. R. Co. v. Love, 10 Ind. 556; Hayden v. Smithville Manuf. Co., 29 Conn. 558; Skipp v. E. Counties R. Co., 9 Exch. 223. Davis v. Detroit & Milwaukee R. R. Co., 20 Mich. 105.

The master is not excused, in the case of a negligent injury to a third person, by the fact that, at the time of the injury, the servant though employed in the master's service, was exceeding bis instructions, or acting in disregard thereof, and that the injury occurred in consequence of the failure to observe them. Luttrell v. Hazen, 3 Sneed, 20; Powell v. Deveney, 3 Cush. 304; Southwick v. Estes, 7 Cush. 385; May v. Bliss, 22 Vt. 477; Weed v. Panama R. R., 17 N. Y. 362; Philadelphia, &c., R. R. Co. v. Derby, 14 How. 488.

One important exception to the maxim respondeat superior is where the employee, whose negligent conduct has caused the injury, was at the time engaged in an independent employ ment, and not under the immediate control, direction or supervision of the employer; as in the case of a licensed drayman, employed to draw merchandize and deliver at the store of his employer; De Forest v. Wright, 2 Mich. 368; and see Milligan v. Wedge, 12 A. and E. 737 ; Cuthbertson v. Parsons, 10 C. B. 304; McGatrick v. Wason, 4 Ohio, N. S. 566.

The immediate employer of the agent or servant through whose negligence an injury occurs is the person responsible for the negligence of such agent or servant. To him the principle respondeat superior applies. There cannot generally be two superiors severally responsible in such case: Blake v. Ferris, 5 N. Y. 48; Blackwell v. Wiswall, 24 Barb. 355; Clark v. Fry, 8 Ohio, N. S. 358; Barry v. St. Louis, 17 Mo. 121; Rapson v. Cubitt, 9 M. and W. 710; Hilliard v. Richardson, 3 Gray, 349; therefore where a job is done under a contract, and the contractor employs the workman whose negligence causes the injury, the contractor is the person responsible for such negligence. See the cases collected in City of Detroit v. Corey, 9 Mich. 165. See also Clark's Adm. v. Hannibal, &c., R. R. Co., 36 Mo. 202; Donaldson v. Mississippi, &c., R. R. Co., 18 Iowa, 280.

If, however, the injury necessarily results from the ordinary mode of doing the work contracted for, the employer as well as the contractor may be held responsible therefor. Chicago

v. Robbins. 2 Black. 418.

Where the master is liable for the torts of his servants, the servant is also, as a general thing, liable himself, except where the tort springs from a breach of the master's contract.

It has been mentioned above that the master is liable to the servant for any injury traceable to the master's own negligence in employing incompetent persons, but his responsibility is not limited to cases of that description. The legal implication from the contract of employment is, that the employer will adopt suitable instruments and means with which to carry on his business. These he can provide and maintain by the use of suitable care and oversight; and if he fails to do so, he is guilty of a breach of duty under his contract, for the consequence of which he ought in justice and sound reason to be held responsible. Per Bigelow, Ch. J. Snow v. Housatonic R. R. Co., 8 Allen, 441. And see Cayzer v. Taylor, 10 Gray, 274; Seaver v. Boston and Maine R. R. Co., 14 Gray, 466; Keegan v. Western R. R. 8 N. Y. 175; Conolly v. Poillon, 41 Barb. 366. And it seems that if a servant hire himself out to perform certain duties, and is forced by another servant of the same master to perform other and more dangerous service, and an injury results in consequence of negligence of co-servants in such other employment, he may have an action against the master for the injury. Chicago, &c., R. R. Co. v. Harney, 28 Ind. 28. See also Ind. and Cin. R. R. Co. v. Love, 10 Ind. 556.

(1) [Therefore an action is sustainable for a breach of promise to marry, where the contract was mutual; 1 Roll. Ab. 22, 1. 5; 1 Sid. 180; 1 Lev. 147; Carth. 467; Freem. 95; and though one of the parties be an infant, yet the contract will be binding on the other. 2 Stra. 281

VOL. I-36

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.

*First they must be willing to contract. "Consensus, non concubitus,

[ *434 ] facit nuptias," is the maxim of the civil law in this case: (b) and it is adopted by the common lawyers, (c) who indeed have borrowed, especially in ancient times, almost all their notions of legitimacy of marriage from the canon and civil laws. (2)

Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour 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 precontract;

937. The action is sustainable by a man against a woman: Carth. 467; 1 Salk. 24; 5 Mod. 511; but an executor cannot sue or be sued. 2 M. and S. 408.

A promise to marry is not within the statute of frauds, and need not be in writing: 1 Stra. 34; 1 Lord Ray. 316; Bul. N. P. 280; nor when in writing need it be stamped. 2 Stark. 351. If the intended husband or wife turns out on inquiry to be of bad character, it is a sufficient defence for rescinding the engagement; but a mere suspicion of such a fact is not. Holt. C. N. P. 151; 4 Esp. Rep. 256.

No bill in equity, or other proceeding, is sustainable to compel the specific performance of a promise to marry; and the 4 Geo. IV, c. 76, s. 27, enacts, that marriage shall not be compelled in any ecclesiastical court, in performance of any contract; consequently, the only legal remedy is an action at law to recover damages for the breach of contract.

It may be as well here to observe, that our law favors and encourages lawful marriages, and every contract in restraint of marriage is illegal, as being against the sound policy of the law.

Hence a wager that the plaintiff would not marry within six years was holden to be void. 10 East, 22. For although the restraint was partial, yet the immediate tendancy of such contract, as far as it went, was to discourage marriage, and no circumstances appeared to show that the restraint in the particular instance was prudent and proper; and see further, 4 Burr. 2225; 2 Vern. 102, 215; 2 Eq. Ca. Ab. 248; 1 Atk. 287; 2 Atk. 538, 540; 10 Ves. 429; 1 P. Wms. 181; 3 M. and S. 463.

On the other hand, contracts in procuration of marriage are void, at least in equity: 1 Ch. Rep. 47; 3 Ch. Rep. 18; 3 Lev, 411; 2 Chan. Ca. 176; 1 Vern. 412; 1 Ves. 503; 3 Atk. 566; Show. P. C. 76; 4 Bro. P. C. 144, 8vo. ed.; Co. Litt. 206, b; Forrest Rep. 142; and semble it would be so at law; 2 Wils. 347; 1 Salk. 156, acc. Hob. 10, cont. Persons conspiring to procure the marriage of a ward in chancery by undue means, are liable not only to be committed, but to be indicted for a conspiracy. 3 Ves. and B. 173.]

That contracts in restraint of marriage are void, see in addition to the cases above cited, Hartley v. Rice, 10 East, 22; Sterling v. Sinnickson, 2 South. 756. Conditions subsequent in deeds, which are in general restraint of marriage, are also void, though reasonable conditions, the purpose of which is only to throw around the relation proper restraints and protections, are permissible; the court placing upon them a construction most favorable to the person restrained. Daley v. Desbouverie, 2 Atk. 261. Conditions that one shall not marry without consent of parent or guardian, or not to a person or persons named, or not until reaching a specified age, if reasonable, or not to a native of a particular country: Perrin v. Lyon, 9 East, 170; or that a widow shall not marry again: Lloyd v. Lloyd, 16 Jur. 261; are conditions which have been sustained, though in the case of personal property, a condition in restraint of the marriage of a widow will be looked upon as imposed in terrorem only, and as void unless there be a limitation over in case of a breach. See 1 Jarm. on Wills, 710, and notes; Willard's Eq. 215; 1 Greenleaf's Cruise, 483, 484; Parsons v. Winslow, 6 Mass. 169.

Ditson

(2) Marriage is sometimes spoken of as a contract, made in due form of law, by which a man and a woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife. Bouv. Law Dic. "Marriage; " and see Clayton v. Wardell, 4 N. Y. 230. In a legal sense, however, marriage is not a contract, but is a domestic relation resulting from contract. v. Ditson, 4 R. I. 101; Dickson v. Dickson, 1 Yerg. 112; Maguire v. Maguire, 7 Dana, 183; Noel v. Ewing, 9 Ind. 49; it is "the union of one man and one woman so long as they shall both live, to the exclusion of all others, by an obligation which during that time, the parties cannot, of their own volition and act, dissolve, but which can be dissolved only by authority of the state. Nothing short of this is a marriage." Perkins, J., in Roche v. Washington,

19 Ind. 57.

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 labour 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. (3) 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 [* 435] marriage and bastardize the issue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest. (e) These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII, c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God's law; (4) and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge, and fruit of children, shall be indissoluble. And, because in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money, it is declared, by the same statute, that nothing, God's law except, shall impeach any marriage, but within the Levitical degrees; (5) the farthest of which is that between uncle and niece. (f) By the same statute all impediments arising from precontracts to other persons were abolished and declared of none effect, unless they had been consummated with bodily knowledge: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 and 3 Edw. VI, c. 23. How far the act of 26 Geo. II, c. 33, (6) which prohibits all suits in ecclesiastical courts to compel

(3) [Elliot v. Gurr, 2 Phil. Ecc. C. 16. And the wife is entitled to dower. 1 Moore, 225, 228; Noy. 29; Cro. Car. 352; 1 Roper, 332, 333.]

Marriage within the prohibited degrees of consanguinity or affinity was made absolutely void by stat. 5 and 6 William IV, c. 54.

(4) [This act does not specify what these prohibitions are, but by the 25 Hen. VIII, c. 22, s. 3, these prohibitory degrees are stated, and it is enacted, "that no subjects of this realm, or in any of his majesty's dominions, shall marry within the following degrees, and the children of such unlawful marriages are illegitimate, viz.: a man may not marry his mother or stepmother, his sister, his son's or daughter's daughter, his father's daughter by his step-mother, his aunt, his uncle's wife, his son's wife, his brother's wife, his wife's daughter, his wife's son's daughter, his wife's daughter's daughter, his wife's sister;" and by s. 14, this provision shall be interpreted of such marriages where marriages were solemnized, and carnal knowledge had; and see the 28 Hen. VIII, c. 7.]

(5) [See table of Levitical degrees, Burn Ecc. L. tit. Marriage, I. The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related; as a husband is related by affinity to all consanguinei of his wife; and vice versa,· the wife to the husband's consanguinei: for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity. Gibs. Cod. 412. Therefore a man after his wife's death cannot marry her sister, aunt, or niece, or daughter, by a former husband. 2 Phil. Ecc. C. 359. So a woman cannot marry her nephew by affinity, such as her former husband's sister's son. 2 Phil. Ecc. C. 18. So a niece of a wife cannot after her death marry the husband. Noy. Rep. 29. But the consanguinei of the husband are not at all related to the consanguinei of the wife. Hence two brothers may marry two sisters, or father and son a mother and daughter; or if a brother and sister marry two persons not related, and the brother and sister die, and the widow and widower may intermarry; for though a man is related to his wife's brother by affinity, he is not so to his wife's brother's wife, whom, if circumstances would admit, it would not be unlawful for him to marry.]

(6) [The statute is repealed by subsequent acts.]