minor obligatory on the guardian. If a minor have neither parent, guardian, or master, he cannot come within the defcription of the statute, and of courfe will poffefs by common law, the power of making contracts for neceffaries; and this feems to be a reasonable conftruction of the law, for where a minor has no person to provide for him, he must have the power of contracting for the neceffaries of life, but if he have fome perfon to fuperintend him, there is no neceffity that he should be capable to make any contract for his fupport.

5. Minors are resposible for all acts that are called torts or trefpaffes, whenever they are capable to commit them, but not for any acts that are in the nature of contracts. If a minor affirming himself to be of age, borrow a fum of money, and execute his bond for it, he may avoid it by reason of nonage; and no action lies for the deceit; for tho refponsible for actual torts, as trefpaffes with force, yet he cannot be for thofe that found in deceit; for if they should, all minors might be ruined: to avoid which they are inca pacitated to make contracts, and if they might be fued for a deceit in contracts, they would be expofed to the fame danger, as to be liable for their contracts.

d So if a minor on the fale of a horfe affirm it to be his own, when it belongs to another, yet on action brought for the deceit, if the minor plead infancy, he fhall not be liable: because the contract being voidable, the plea of infancy avoids it, and it is in the nature of an affirmance, by a minor that he is of full age. If a minor goes about town and pretending to be of age, defrauds by taking up goods upon credit, and then pleads nonage, the person injured cannot recover back the goods, or the value, yet he may be punished as a common cheat. Minors are no more liable in equity than at law, for frauds and deceits in contracts.

Minors on account of their youth and inexperience, are deemed incapable to profecute and defend in fuits. The law therefore to protect them from any injury in this refpect, has made it neceffary that they fue by guardian, or if they have none, then by the next friend. The parent is called the natural guardian. They cannot

be fued only under the protection of, and by joining

VOL. I.

the guardian, parent

F f

✔ Keb. 778,

Geer vs. Hovey, S,

parent, or master, in the fuit; if they have none, they may be fued without, but the plaintiff muft inform the court, whofe duty it will then be to appoint a guardian, for the purpose of affifting them intheir defence. g If judgment be rendered against a minor, no guardian being cited or appointed by the court, on default, writ of error will lie for the error in fact, and the judgment be reverfed.

A

CHAPTER EIGHTH.

OF MASTER AND SERVANT.

Servant, is a perfon fubjected to the power and authority of a mafter for a limited time, upon a particular contract.

cuffing this fubject, I fhall confider,

In dif

I. Who may be fervants. II. The power of masters, and the remedy of fervants against their master for injuries, and HI. The liability of masters for the acts of their fervants,-and of fervants for their own acts.

I. Servants are of feveral descriptions.

1. Menial fervants or domestics, who are not however particularly recognized by law, and are fo denominated from the nature of their employment. The right of the master to their services in every respect, is grounded on the contract between them. Labourers, or perfons hired by the days work, or any longer time, are not by our law, or in common fpeech confidered as fervants.

2. Poor debtors may by law be affigned in fervice, for the payment of their debts, and rendered fervants: and for this purpose the law provides, b that when a debtor is imprifoned, and no means can be found to pay the debt, except by service, then if the creditor defire it, and the court judge it reafonable, the fuperior or county court, shall have power to order and dispose of such debtor in fervice for the purpose aforefaid, to fome inhabitant of this state, whether the execution by which he is held, iffued from fuch court or not. Provided, that fuch court must be satisfied by the oath of the parties, that fuch debtor has not fufficient estate to pay fuck execution,

g Kirb. 116%

Statutes, 9, 10,

execution, excepting neceffaries exempted by law, from execution, and that the debt is really due on good confideration.

The affignment of a debtor in fervice to pay his debts, is wholAs the restraint of natural lily in the difcretion of the court. berty, and the subjection of one man to another, is a matter that in many instances, is justifiable, for the purpose of compelling a debtor to discharge his debts: and in some instances may be hard and unjust, it would have been better, had the law more express. ly defined the cafes in which debtors fhall be affigned in fervice, and not have left it wholly to the difcretion of a court.-For where the most valuable rights of man are concerned, we ought to know precifely the tenure by which we hold them, and not depend upon the whim and caprice of a judge, who may doom us to fervitude, in cafes where we had no reason to expect it. But courts may by a proper train of decisions establish fuch a construction of this ftatute, as to make known with certainty, the circumstances under which we may be deprived of our liberty, and reduced to fervitude by the judgment of law. In the cafe of a difhoneft debtor, there is the greatest propriety in compelling him to pay his debts by fervice, for the purpose of punishing him and holding him up as a public example. So where, from the character and rank of a man in life, labour is a proper business, he cannot complain of injuftice to be compelled to work to pay his debts. But where a man has lived in affluence, and by fome unforeseen miffortune and unexpected accident, is reduced to poverty, it would be cruel to aggravate his wretchedness, by subjecting him to fervitude. Between these extremes, there are a great variety of grades in which courts must exercise a discretion tempered with humanity, in defignating the proper objects of this law. A debtor cannot be affigned in fervice, to a man and his affigns.

3. Children may be bound out in fervice by their parents, till they arrive to the age of twenty-one, which is frequently done by parents, who are unable to provide for their fupport. So the children of poor perfons, fupported by the town, that are suffered to live in idleness, the children of parents, that cannot provide for them, and children who have none to take care of them, the felectmen and civil authority may bind out as apprentices or fervants, males till the age of twenty-one, and females till eighteen. Ff2 Where

Kirb 34.

Where parents or masters neglect to bring up children and apprentices in fome honeft calling, the felectmen and civil authority, may take them away, and bind them to other masters.

4. Apprentices are minors, who are bound by their parents, guardians, or the felectmen, by indentures, to fome perfons for a term of years, that cannot exceed the age of twenty one, for the purpose of being maintained and inftructed by their masters, in the art and mystery which they profefs. Our law has limited no time which apprentices fhall ferve to learn a trade, in confequence of which the community are greatly injured by unfkilful mechanics. Perhaps the limitation of service for a time, fuitable to learn each trade, might anfwer a valuable purposfe, and furnish the public with good mechanics, without expofing individuals to the inconvenience experienced in England, where the law requiring an apprenticeship of feven years, for every trade, has become a fubject of great complaint: because there are many trades which can be easily learned in a much shorter period.

5. Negro or molatto children, born of flaves, after the first day of March, 1784, may be held in fervitude till they arrive to the age of twenty-five years, and then they fhall be free. This law has laid the foundation of the gradual abolition of flavery, for as the children of flaves are born free, being fervants only till twenty-five years of age, the confequence is, that as foon as the flaves now in being fhall become extinct, flavery will cease, as the importation of flaves in future is prohibited. The mafters of fuch negro and molatto children, free at twenty-five, have the fame power over them as they have over their own : but over their children the masters will have no power. As flavery is gradually abolishing, and will in a fhort time be extirpated, there being few flaves in this state it will be unneceflary in this place to make any remarks upon a fubject that has fo warmly engaged the attention of the humane and benevolent part of mankind in the prefent age. When I treat of the offences of importing flaves and tranfporting negroes that are free, I fhall enter into an historical detail of the progress and termination of flavery, for the purpose of furnishing posterity with all neceflary information respecting a practice, which has fo long been a dishonor to human nature. II. Of

11. Of the power of mafters, and the remedy of fervants for injuries done them by their mafters.

A mafter may reasonably and moderately correct, and chaftife his fervant for negligence, and misbehaviour. He is entitled to the benefit of his labor and service, and if a fervant run away from his master, and be employed by another, the master is entitled to his wages, and can recover them by action. A master may maintain an action against another for beating and maiming his fervant : but he muft affign the lofs of fervice, as the ground of his action'; which must be proved on the trial, or he cannot recover, the fervant himself being entitled to an action to recover damages for the battery. A master may juftify an affault in defence of the fervant, and the fervant in defence of his master, on the ground of their reciprocal rights and duties. An action lies in favor of the master against a perfon for enticing his fervant from his fervice, or for hiring and retaining him in cafe he knew that he was a fervant; but if fuch perfon be ignorant of the fact, no action lies, unless he afterwards refuse to restore him, upon information and demand. Where a perfon takes a fervant forcibly from actual fervice, trefpafs will lie in favour of the master.

It is provided by ftatute, that if fervants or apprentices above fifteen years of age, withdraw or abfcond from the fervice of their masters, before their covenants or terms of lervice are expired, they fhall ferve their masters threefold the time of their abfence. When fervants or apprentices run away from their masters, it is lawful for the next assistant or justice of the peace, or constable, and two chief inhabitants, in a town, where there is no affistant or justice of the peace, to prefs men and boats (if occafion be) at the masters request and charge, to purfue fuch fervants and apprentices by sea and land, and to bring them back by force. When children, or fervants upon complaint made, are convicted of stubborn and rebellious carriage, against their parents or masters, before any two affiftants or juftices of the peace, they may be committed to the houfe of correction, to remain under hard labor, and fevere punishment, at the difcretion of the court, who on reformation may order their release, and their return to the parents or makers.