direct restitution of a rateable share of the money given with the apprentice: and parish-apprentices may be discharged in the same manner, by two justices.

3. A third species of servants are labourers, who are only hired by the day or the week, and do not live intra mania, as part of the family; concerning whom the statutes before cited have made 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. Empowersheriff of the

ing the justices at sessions, or the

county, to settle their wages and 5. Inflicting penalties on such as either give, or exact, more wages than are so settled.

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 the law considers as servants pro tempore.

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 has served forty days. 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.

A master may, by law, correct his apprentice for negligence or other misbehaviour, so it be done

with moderation: though if the master or master's wife beats any other servant of full age, it is good cause of departure. But if any servant, workman, or labourer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb.

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.

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.

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 expence of them, and is called in law maintenance. 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. A master likewise may justify an assault in defence of his servant, and a servant in defence of his master; the master, because he has an interest in his servant,

because it is part of his duty, for which he receives his wages, to stand by and defend his master.

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 qui facit per alium, facit per se. Therefore, if the servant commit any 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 servant rob his guests, the master is bound to restitution: 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. So likewise if the drawer at a tavern sells 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 sell it to that person in particular, yet his permitting him to draw and sell 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 answerable for it: but if I pay it to a clergyman's or 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 transacts 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 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 that he takes up; for the tradesman cannot possibly distinguish when he comes by my orders, 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 lame 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.

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.

I. Our law considers marriage in no other light than as a civil contract. 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.

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