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dentures obligatory, even though such parish apprentice be a minor'. Apprentices to trades may be discharged on reasonable cause, either at the request of themselves or masters, at the quarter sessions, or by one justice, with appeal to the sessions "; who may, by the equity of the statute, if they think it reasonable, 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 °. (4) But if an apprentice, with whom less than ten pounds hath been given, runs away from his master, he is compellable to serve out his time of absence, or make satisfaction for the same, at any time within seven years after the expiration of his original contract. P. (5)

3. A THIRD species of servants are labourers, who are only hired by the day or the week, and do not live intra moenia, as [427] part of the family; concerning whom the statutes before

cited 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 (6): 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, capa

1 Stat. 5 Eliz. c. 4.

Cro. Car. 179. (4)

m Stat. 5 Eliz. c. 4.

n Salk. 68.

43 Eliz. c. 2,

o Stat. 20 Geo. II. c. 19.

P Stat. 6 Geo. III. c. 25.

9 Stat. 5 Eliz. c.4. 6 Geo. III. c. 25.

(4) The case in Cro. Car. 179. does not apply.

(5) The head of apprenticeship both as it regards the parties to the contract among themselves, and their mutual rights and remedies; and also as it regards the acquisition of a settlement by the apprentice, has given rise to many regulations by statute, and almost innumerable decisions; the best analysis of which the reader will find under the title Apprentice in Burn's Justice.

(6) This power is taken away by the 53 G.3. c. 40., and of course the penalties which are mentioned in the next sentence are also abolished.

city; 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. 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. 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 it's repeal, though hitherto without success. 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 trades is equally detrimental to the public as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill is required: [ 428 ] but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious; 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 itt: for trading in a country village, apprenticeships are not requisite u; and following the trade seven years, without any

See page 364.

• Stat. 5 Eliz. c. 4. § 31.

* Lord Raym. 514.

u 1 Ventr. 51. 2 Keb. 583.

effectual prosecution, (either as a master or a servant,) is sufficient without an actual apprenticeship ". (7)

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; 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. (8)

III. LET us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may [ 429] 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 expense of them, and is called in law maintenance. A master also may bring an action against any man for beating or maim

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(7) The penal and exclusive part of the statute of Elizabeth is now repealed by the 54 G. 5. c. 96. It is therefore unimportant to remark that the case cited from lord Raymond does not apply.

(8) See ante, p. 427. n. (6).

ing 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 a: 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 *. (5) 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 of 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. The reason and foundation 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. (9)

N

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 a trespass by the command or encouragement of his master, the master shall be guilty of it, though the [430] servant is not thereby excused, for he is only to obey his master in matters that are honest and lawful. If an inn

9 Rep. 113.

d 2 Roll. Abr. 546..

* 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.
8 4 Inst. 109.

(9) The first of these positions has been often denied, and the distinction taken between the two. Bro. Abr. Trespass, pl. 189., Salkeld, 407. but in Tickell v. Read, Lofft's Rep. 215. Lord Mansfield affirmed it, saying, I cannot tell them (the jury) a master interposing when his, servant is assailed is not justifiable under the circumstances of the case, as well as a servant interposing for his master. It rests on the relation.

(6) See Vol.III. p.142. n. (20).

[431]

keeper's servants rob his guests, the master is bound to restitution 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. (10) 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 masteri: for although the master did not expressly order his servant to sell it to that person in particular, yet his permitting him to draw and sell it at all is impliedly a general com

mand.

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 *.

Ir a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect; if a

h Noy's max, c. 43.

i 1 Roll. Abr. 95.

* Dr. & Stud. d. 2. c. 42. Noy's max. c. 44.

(10) See Vol. III. p.165. n. (18).

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