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CHAPTER XIV.: OF MASTER AND SERVANT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF MASTER AND SERVANT.
Having thus commented on the rights and duties of persons, as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private economical relations.
The three great relations in private life are, 1. That of master and servant; which is founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife; which is founded in nature, but modified by civil society: the one directing man to continue and multiply his species, the other prescribing the manner in which that natural impulse must be confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being its principal end and design: and it is by virtue of this relation that infants are protected, maintained, and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched away by death before they have completed their duty, the law has therefore provided a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.
*[*423In discussing the relation of master and servant, I shall, first, consider the several sorts of servants, and how this relation is created and destroyed; secondly, the effect of this relation with regard to the parties themselves; and, lastly, its effect with regard to other persons.
I. As to the several sorts of servants: I have formerly observed(a) that pure and proper slavery does not, nay, cannot, subsist in England: such, I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist anywhere. The three origins of the right of slavery assigned by Justinian(b) are all of them built upon false foundations.(c) As, first, slavery is held to arise “jure gentium,” from a state of captivity in war; whence slaves are called mancipia, quasi manu capti. The conqueror, say the civilians, had a right to the life of his captive; and, having spared that, has a right to deal with him as he pleases. But it is an untrue position, when taken generally, that by the law of nature, or nations, a man may kill his enemy: he has only a right to kill him, in particular cases: in cases of absolute necessity, for self-defence; and it is plain this absolute necessity did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners but merely to disable them from doing harm to us, by confining their persons: much less can it give a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since therefore the right of making slaves by captivity depends on a supposed right of slaughter, that foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that slavery may begin “jure civili;” when one man sells himself to another. This, if only meant of contracts to serve or work for another, is very **424]just: but when applied to strict slavery, in the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price, a quid pro quo, an equivalent given to the seller in lieu of what he transfers to the buyer: but what equivalent can be given for life and liberty, both of which, in absolute slavery, are held to be in the master’s disposal? His property also, the very price he seems to receive, devolves ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very principles upon which all sales are founded? Lastly, we are told, that besides these two ways by which slaves “fiunt,” or are acquired, they may also be hereditary: “servi nascuntur;” the children of acquired slaves are jure naturæ, by a negative kind of birthright, slaves also. But this, being built on the two former rights, must fall together with them. If neither captivity nor the sale of one’s self, can by the law of nature and reason reduce the parent to slavery, much less can they reduce the offspring.
Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation; so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3, which ordained, that all idle vagabonds should be made slaves, and fed upon bread and water, or small drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be compelled, by beating, chaining, or otherwise, to perform the work assigned them, were it never so vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and therefore this statute was repealed in two years afterwards.(d) And now it is laid down,(e) that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, and his property.1 Yet, with regard to any right which the master may have lawfully acquired to the perpetual service of John or Thomas, this will remain exactly in the same state as *[*425before: for this is no more than the same state of subjection for life, which every apprentice submits to for the space of seven years, or sometimes for a longer term.2 Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro servants, lest they should thereby gain their liberty, is totally without foundation, as well as without excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly understood, that is, protection, to a Jew, a Turk, or a heathen, as well as to those who profess the true religion of Christ; and it will not dissolve a civil obligation between master and servant, on account of the alteration of faith in either of the parties: but the slave is entitled to the same protection it. England before, as after, baptism; and, whatever service the heathen negro owed of right to his American master, by general not by local law, the same, whatever it be, is he bound to render when brought to England and made a Christian.3
I. The first sort of servants, therefore, acknowledged by the laws of England, are menial servants; so called from being intra mænia, or domestics. The contract between them and their masters arises upon the hiring. If the hiring be general, without any particular time limited, the law construes it to be a hiring for a year;(f) upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons, as well when there is work to be done, as when there is not:(g)4 but the contract may be made for any larger or smaller term. All single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service in husbandry or certain specific trades, for the promotion of honest industry; and no master can put away his servant, or servant leave his master, after being so retained, either before or at the end of his term, without a quarter’s warning; unless upon *[*426reasonable cause, to be allowed by a justice of the peace:(h)5 but they may part by consent, or make a special bargain.6
2. Another species of servants are called apprentices, (from apprendre, to learn,) and are usually bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained and instructed by them. This is usually done to persons of trade, in order to learn their art and mystery; and sometimes very large sums are given with them, as a premium for such their instruction: but it may be done to husbandmen, nay, to gentlemen, and others. And(i) children of poor persons may be apprenticed out by the overseers, with consent of two justices, till twenty-one years of age, to such persons as are thought fitting; who are also compellable to take them; and it is held that gentlemen of fortune, and clergymen, are equally liable with others to such compulsion;(k)7 for which purposes our statutes have made the indentures obligatory, even though such parish-apprentice be a minor.(l) 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,(m) who may, by the equity of the statute, if they think it reasonable, direct restitution of a ratable share of the money given with the apprentice:(n) and parish-apprentices may be discharged in the same manner, by two justices.(o) 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)8
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 **427]part of the family; concerning 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.
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. 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 reason indeed only extends to such trades, *[*428in 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; 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)
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)9 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.(z)10
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.11
III. Let us, lastly, see how strangers may be affected by this relation of master and servant: or how a master may *[*429behave 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.(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)12 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)13 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) 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.14
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.(g) Therefore, if the **430]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 prohibit, cum prohibere possit, jubet.15 So likewise if the drawer at a tavera sells a 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.
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)16
**431]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 lames a horse while he is shoeing him, an action lies against the master, and not against the servant.17 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. Upon this principle, by the common law,(l) 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 his 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 Anne, 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. But if such fire happens through negligence of any servant, whose loss is commonly very little, such servant shall forfeit 100l., 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)18 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;(o) which holds that the pater familias, in this and similar cases, “ob alterius culpam tenetur, sive servi, sive liberi.”19
**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 sorvant 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.
[(a) ] Page 127.
[(b) ]Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris. Inst. 1, 3, 4.
[(c) ] Montesq. Sp. L. xv. 2.
[(d) ] Stat. 3 & 4 Edw. VI. c. 16.
[(e) ] Salk. 666.
[1 ] So if a slave escape to any island belonging to England or to an English ship not lying within those parts where slavery is allowed, as in our West India islands, East Florida, &c., he becomes a freeman, and no action is sustainable by the person to whom he belonged against the person who harbours him. 2 B. & Cres. 448. 3 B. & A. 353.—Chitty.
[2 ] Though personal slavery be unknown in England, so that one man cannot sell nor confine and export another as his property, yet the claim of imported slaves for wages without a special promise does not seem to receive the same protection and support as that of a freeman. 2 Kent, 248. Alfred vs. Marquis of Fitz-James, 3 Esp. Cas. 3. King vs. Thomas Ditton, 4 Doug. 300. When a West India slave accompanied her master to England and voluntarily returned to the West Indies, it was held that the residence in England did not finally emancipate her, and she became a slave on her return, though no coercion could be exercised over her while in England. The Slave Grace, 2 Hagg. Adm. Rep. 94. A state of slavery is a mere municipal regulation; and no nation is bound to recognise its existence as to foreign slaves within its territory. Prigg vs. The Commonwealth, 16 Peters, 539.—Sharswood.
[3 ] We might have been surprised that the learned commentator should condescend to treat this ridiculous notion and practice with so much seriousness, if we were not apprized that the court of Common Pleas, so late as the 5 W. and M., held that a man might have a property in a negro boy, and might bring an action of trover for him, because negroes are heathens. 1 Ld. Raym. 147. A strange principle to found a right of property upon!
But it was decided in 1772, in the celebrated case of James Somersett, that a heathen negro, when brought to England, owes no service to an American or any other master. James Somersett had been made a slave in Africa, and was sold there; from thence he was carried to Virginia, where he was bought, and brought by his master to England: here he ran away from his master, who seized him and carried him on board a ship, where he was confined, in order to be sent to Jamaica to be sold as a slave. Whilst he was thus confined, lord Mansfield granted a habeas corpus, ordering the captain of the ship to bring up the body of James Somersett, with the cause of his detainer. The above-mentioned circumstances being stated upon the return to the writ, after much learned discussion in the court of King’s Bench, the court were unanimously of opinion that the return was insufficient, and that Somersett ought to be discharged. See Mr. Hargrave’s learned argument for the negro in 11 St. Tr. 340; and the case reported in Lofft’s Reports, 1. In consequence of this decision, if a ship laden with slaves was obliged to put into an English harbour, all the slaves on board might and ought to be set at liberty. Though there are acts of parliament which recognise and regulate the slavery of negroes, yet it exists not in the contemplation of the common law; and the reason that they are not declared free before they reach an English harbour is only because their complaints cannot sooner be heard and redressed by the process of an English court of justice.
Liberty by the English law depends not upon the complexion; and what was said even in the time of queen Elizabeth is now substantially true,—that the air of England is too pure for a slave to breathe in. 2 Rushw. 468.—Christian.
Somersett’s case, (Lofft, 1. 20 State Trials, 1,) in which lord Mansfield decided that personal slavery was not lawful in England, was not determined until 1772. Villenage in gross was certainly as pure personal slavery as ever existed in any country,—even if a distinction be made as to villeins regardant, or such as were annexed to the land. It appears to have gradually died out before it was expressly abolished.
Mr. Barrington, who has given a very strong picture of the degradation and oppression of the tenants under the English tenure of pure villenage, is of opinion that predial servitude really existed in England so late as the reign of Elizabeth, and that the observation of Lilburn, that the air of England was at that time too pure for a slave to breathe in, was not true in point of fact. Barrington on Stat. 232. 2 Kent’s Com. 249. It is evident that at the time of the original settlement of this country slavery was a part of the common law of England, and as such was brought into and incorporated with the laws of all the colonies. The famous case of Somersett, whilst it determined that negroes could not be held as slaves in England, recognised the existence of slavery in the colonies, as did the whole legal policy of that country and of France for many years before and after that time. The first introduction of negro slavery was by a Dutch ship, which arrived in Virginia, in 1620, from the coast of Africa, having twenty negroes on board, who were sold as slaves. In the year 1638 they are found in Massachusetts. They were introduced into Connecticut soon after the settlement of that colony; that is to say, about the same period. The climate of the Northern States, less favourable to the constitution of the natives of Africa than the Southern, proved alike unfavourable to their propagation and to the increase of their numbers by importation. 2 Tucker’s Blackst. App. 33. Their numbers and value gradually diminished in the Northern States, so that about, or soon after, the Revolution, it became comparatively easy and safe to provide for the complete emancipation, gradually or otherwise, of those who still remained in servitude. In those States in which it still continues, the right of property in them is protected by art. 4, s. 3, of the constitution of the United States, which provides that “no person held to service or labour in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on the claim of the party to whom such service or labour may be due.”
In regard to the lawfulness of slavery, which is alluded to in the text, it may be sufficient to quote from the opinion of C. J. Marshall upon the subject of the slave-trade, as presenting alike sound and moderate views, (10 Wheat, 120:)—“That it is contrary to the law of nature will scarcely be denied; that every man has a natural right to the fruits of his own labour is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed; and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all. Slavery, then, has its origin in force; but, as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful.”
As to the abstract morality of property in the service of a man, no matter how originally acquired, wherever it is sanctioned by law, it is perhaps sufficient to observe that power or property in itself has no moral quality, is neither right nor wrong. It is the use or abuse of it which alone attaches responsibility in a moral point of view to the possessor. The expediency of the law permitting one or another species of power or property is another and entirely different question, depending upon other and different principles. No other view consists with the moral and political code of the Old Testament, or with the practical teachings of the New Testament on this subject.
The laws of the Southern States, remarks chancellor Kent, are doubtless as just and mild as is deemed by those governments to be compatible with the public safety, or with the existence and preservation of that species of property; and yet, in contemplation of their laws, slaves are considered in some respects, though not in criminal prosecutions, as things or property rather than persons, and are vendible as personal property. They cannot take property by descent or purchase, and all they hold belongs to the master. They cannot make lawful contracts, and they are deprived of civil rights. They are assets in the hands of executors, for the payment of debts, and cannot be emancipated by will or otherwise, to the prejudice of creditors. Their condition is more analogous to that of the slaves of the ancients than to that of the villeins of feudal times, both in respect to the degradation of the slaves and the full dominion and power of the master. The statute regulations follow the principles of the civil law in relation to slaves, and are extremely severe; but the master has no power over life or limb; slaves are still regarded as human beings, under moral responsibility as to crimes; and the severe letter of the law is softened and corrected by the humanity of the age and the spirit of Christianity. 2 Kent’s Com. 253.—Sharswood.
[(f) ] Co. Litt. 42.
[(g) ] F. N. B. 168.
[4 ] This doctrine does not apply to domestic servants in general. On the hiring of a menial servant, no particular time is limited for his remaining in the service, though there is an express contract to pay at the rate of a certain sum per annum; and yet, notwithstanding this, we find instances of servants engaged under such a hiring, recovering for wages before the expiration of the year, which could not be the case if the hiring was for an entire year; for if the contract were for a year’s service, the year’s service must be completed before the servant could sue for his wages. See 2 Stark. 257. 3 Mod. 153. Salk. 65. S. C. 6 T. R. 320, S. P.; also the case of Writh. vs. Viner, in Vin. Abr. vol. 3, p. 8, tit. Apportionment, per Ashurst, J., in Cutter vs. Powell, 6 T. R. 326. “With regard to the common case of a hired servant, such a servant, though hired in a general way, is considered to be hired with reference to the general understanding upon the subject, that the servant shall be entitled to his wages for the time he serves, though he do not continue in the service during the whole year.” Where there is an express contract that a month’s warning shall be given, or a month’s wages paid, such agreement is binding, and, unless the master misconducts himself, or the servant be disobedient, must be observed. But where the hiring is general, there is no implication that any warning shall be given, and either party may determine the service at any time. It is however reported to have been decided by lord Kenyon at nisi prius, that if a servant be hired generally, and the master turn him away without warning or previous notice, and there is no fault or misconduct in the servant to warrant it, he ought to have the allowance of a month’s wages. 3 Esp. Rep. 235.—Chitty.
[(h) ] Stat. 5 Eliz. c. 4.
[5 ] Servants in husbandry are frequently hired by the year, from Michaelmas; and this is an entire hiring. 2 Stark. 257.
It should seem the master is justified in dismissing a servant of this description, if he disobey his orders, or be guilty of other misconduct, without going before a justice of the peace; (2 Stark. 356. Cald. 14;) as if the master, just before the servant’s usual hour of dinner, order the servant to take his horses to a small distance before he dines, and the servant refuse, and afterwards does not submit; and such servant cannot recover any proportion of his wages. 2 Stark. 256. So if a single female, yearly servant, at any time during the year appear with child, the master may turn her away. Cald. 11, 14. So if a servant repeatedly sleep out at night without leave. 3 Esp. R. 235.—Chitty.
[6 ] The provisions of the English statutes have not been adopted in this country. It depends upon the contract of the parties, or, in the absence of that, upon the custom of the country, what notice shall or may be given by either. If the servant hired for a definite term leaves the service before the end of it without reasonable cause, or is dismissed for such misconduct as justifies it, he loses his right to wages for the period he has served. A servant so hired may be dismissed by the master before the expiration of the term either for immoral conduct, wilful disobedience, or habitual neglect. If hired to labour for a specific time, and he serves part of the time, and is disabled by sickness, or other cause, without fault on his part, he is entitled to be paid pro rata. Such, too, seems to be the case whenever the contract is put an end to by mutual consent. 2 Kent’s Com. 258, and notes.—Sharswood.
[(i) ] Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. 1 Jac. I. c. 25. 7 Jac. I. c. 3. 8 & 9 W. and M. c. 30. 2 & 3 Anne, c. 6. 4 Anne, c. 19. 17 Geo. II. c. 5. 18 Geo. III. c. 47. Apprentices enter into the enactments of numerous other statutes. The 32, c. 57; 33, c. 55; 42, cc. 46 and 73; 51, c. 80; 54, cc. 96 and 107; 56, c. 139; all Geo. III.; and 1 and 2, c. 42; and 4, c. 34; statutes of his present majesty’s reign. These, together with the cases, are amply abridged in Chetwynde’s Burn’s Justice.
[(k) ] Salk. 57, 491.
[7 ] The parish officers, with the assent of two justices, may bind a parish apprentice to a person who resides out of the parish, if he occupies an estate in the parish, (3 T. R. 107,) or to partners who reside out of the parish, though some of the partners are resident upon the partnership property within the parish. 7 T. R. 33.—Christian.
[(l) ] Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. Cro. Car. 179.
[(m) ] Stat. 5 Eliz. c. 4.
[(n) ] Salk. 67.
[(o) ] Stat. 20 Geo. II. c. 19.
[(p) ] Stat. 6 Geo. III. c. 26.
[8 ] Covenants for personal service cannot in general be specifically enforced. But in the case of apprentices provision is made for it in the statute law, and the mode and process of its enforcement. The power of the master is derived from that of the parent. The contracts of soldiers and sailors may, in like manner, by virtue of statutes, be specifically enforced; provisions which evidently spring from national policy.
A free woman of colour, above twenty-one years of age, bound herself by indenture, for a valuable consideration, to serve the obligee as a menial servant for twenty years: held that a specific performance of the contract could not be enforced, and that upon a writ of habeas corpus she had a right to be discharged from custody. Mary Clark’s case, 1 Blackf. 122.—Sharswood.
[(q) ] Stat. 5 Eliz. c. 4. 6 Geo. III. c. 26.
[(r) ] See page 364.
[(s) ] Stat. 5 Eliz. c. 4. 31.
[(t) ] Lord Raym. 514.
[(u) ] 1 Ventr. 51. 2 Keb. 583.
[(w) ] Lord Raym. 1179. Wallen qui tam vs. Holton. Tr. 33 Geo. II. (by all the judges.)
[(x) ] 1 Hawk. P. C. 130. Lamb Eiren. 127. Cro. [Editor: Illegible character] 179. 2 Show. 289.
[(y) ] F. N. B. 168. Bro. Abr. [Editor: Illegible character] Labourers, 51. Trespress 349.
[9 ] But he cannot delegate that authority to another. 9 Co. 76. Where a master in correcting his servant causes his death, it shall be deemed homicide by misadventure; yet if in his correction he be so barbarous as to exceed all bounds of moderation, and thereby occasion the servant’s death, it is manslaughter, at least; and if he make use of an instrument improper for correction, and apparently endangering the servant’s life, it is murder. Hawk. b. 1, c. 29, s. 5. And if the servant depart out of his master’s service, and the master happen to lay hold of him, yet the master in this case may not beat or forcibly compel his servant against his will to remain or tarry with him or do his service; but either he must complain to the justices of his servant’s departure, or he may have an action of covenant against the third person who covenanted for his faithful services. Dalt. c. 121, pp. 281, 282. These observations do not apply to domestic servants. It is an indictable offence in a master to neglect supplying necessaries to an infant servant, or apprentice, unable to provide for itself. Russell & R. Cro. C. 20. 2 Camp. 650. 1 Leach, 137.—Chitty.
[(z) ] Stat. 5 Eliz. c. 4.
[10 ] Servants murdering their masters are ousted of the benefit of clergy, (12 Hen. VII. c. 7, s. 21;) and the same is deemed petty treason. 25 Edw. III. s. 5, c. 2, s. 2.
To prevent masters being imposed upon by the giving of false characters, the 3[Editor: Illegible character] Geo. III. c. 56 was passed to punish servants and others obtaining and giving such characters. By this act a penalty is imposed on a person falsely personating his master or mistress, or his or her agent, or falsely asserting a servant to have been retained for other than the actual period or capacity, or falsely asserting that a servant left or was discharged from any service at other than the actual time, or falsely asserting that he had not been hired in any previous service, or offering as servant pretending to have served in any service in which he has not served, or offering as servant with a forged certificate of character, or falsely pretending not to have been hired in any previous service. See post, 428, n. 14.
As a general rule, a servant who receives reward for his services is bound to observe with care and diligence the interests of his master, and must exert the same vigilance and attention his master would have done. 5 B. & A. 820. 5 Rep. 14. 1 Leon. 88. Moore, 244. He must adhere to the reasonable orders and instructions of his master, and the neglect so to do will render him responsible for the consequence, and the mere intention of doing a benefit for his master will furnish him no excuse for any injury that may arise from a deviation from his specific instructions. Dyer, 161. 1 Hen. Bla. 159. Malyne, 154. 4 Camp. 183. A servant acting without reward is bound only to take the same care in the management of his master’s concerns as a reasonable attention to his own affairs would dictate to him in the management thereof; and a gratuitous servant without reward is not liable for a mere non-feasance. 2 Lord Raym. 909. 5 T. R. 143. 1 Esp. Rep. 74. A servant is not liable for the loss of goods by robbery, if without his fault 1 Inst. 9.
At common law, where goods are delivered to a servant for a specific purpose, he may commit larceny by appropriating them to his own use, for his possession is still in law that of his master. See 1 Leach, 251. 2 Leach, 699, 870. Besides this, by the 21 Hen. VIII. c. 7, servants withdrawing with goods of their master’s, worth 40s., are deemed felons, if such goods have been intrusted with them to keep. In the 2d section there is a saving for apprentices during apprenticeship, and offenders not eighteen years old. Clergy is taken away from this offence by the 27 Hen. VIII. c. 17, and both these acts are made perpetual by the 28 Hen. VIII. c. 2, repealed by 1 Mary, sess. 1, c. 1, s. 5, and the 21 Hen. VIII. c. 7 is revised and made perpetual by the 5 Eliz. c. 10, s. 3; so that at this day the offence is a clergyable felony. The defendant must be a servant at the time of delivery and running away, to render them offenders within the meaning of this act. Dyer, 5. Hawk. b. 1, c. 33, s. 13. East, P. C. 562. Dalt, J. C. 58.
But these laws only apply where the goods were intrusted to a servant by his master, and not where the servant does not so obtain them. Thus, at common law a cashier of the bank could not be guilty of felony in embezzling an India bond which he had received from the court of chancery and was in his actual as well as constructive possession. 1 Leach, 28. So, if a clerk received money of a customer, and, without at all putting it in the till, converted it to his own use, he was guilty only of a breach of trust; though had he once deposited it, and then taken it again, he would have been guilty of felony. 2 Leach, 835. This doctrine occasioned the 39 Geo. III. c. 85, which declared embezzlement by every kind of servant in the course of their particular employment to be felonious stealing, and punished it with transportation for seven years.
Workmen in particular trades specified in the 22 Geo. II. c. 27, purloining, secreting, selling, pawning, exchanging, &c. materials, &c. of manufacturer; or tools, &c. (17 Geo. III. c. 56) are by the former act liable to punishment: so by 22 Geo. II. c. 27, s. 7, and 17 Geo. III. c. 56, s. 7, 16, such workmen, not returning materials not used up in eight days, if required, or (by sec. 8) neglecting to work up materials for eight days successively, or taking fresh materials, or employ eight days before work completed, are liable to punishment.
On account of the higher importance of property under the care of great public companies, it has been protected by yet severer provisions. The 53 Geo. III. c. 59, s. 1, inflicts a punishment on servants embezzling money issued for public services, or for fraudulently applying it to other than public services, or on revenue officers making a false statement of sums collected by them as such, (id. sec. 2:) so by 52 Geo. III. c. 63, s. 1 & 2, embezzling securities for money or stock, or orders for payment of money, or other effects deposited with bankers or agents, or of money so deposited for investment in the funds, or other special purpose, is punished.
At common law, persons employed in the post-office have no special property in the letters committed to their charge which may prevent their stealing them from amounting to larceny. 1 Leach, 1. But now the offence of stealing letters or their contents, or buying or receiving the latter, is provided against by the 52 Geo. III. c. 143, s. 2, 4.—Chitty.
[(a) ] 2 Jones, 47.
[11 ] The statutes authorizing the interference of the magistrate in such matters are repealed by stat. 53 Geo. III. c. 40.
The amount of wages to menial servants must depend on the contract between them and the master. In general, a contract to pay a sum certain per annum, in consideration of services to be performed, is an entire contract, and without a full year’s service, or readiness to perform such service, no part of the salary can be demanded; but in the case of a servant hired in the general way, though hired expressly at so much per annum, he is considered to be hired with reference to the general understanding on the subject, viz. that he shall be entitled to his wages for the time he shall serve, though he do not continue in the service during the whole year, and if he die before the end of the year his personal representatives will be entitled to a proportionable part of the wages due to him at the time of his death. See note 5, ante. 6 T. R. 320. Worth vs. Vines, in Vin. Ab. vol. 3, p. 8, tit. Apportionment. 3 Mod. 153. Salk. 65. S. C. 2 Stark. 257. But if the contract be expressly for a year’s service, and not at so much per annum, the year must be completed before the servant is entitled to be paid, (2 Stark. 257;) though indeed the servant might sue the master for refusing to continue him in his service. By the late bankrupt act, 6 Geo. IV. c. 16, s. 48, a servant is to be paid six months’ wages in full under the commission, and may prove for the residue.
It is a general rule that if there has been no beneficial service there shall be no pay: but if some benefit, however slight, has been derived, though not to the extent expected, this shall go to the amount of the plaintiff’s demand, leaving the defendant to his action for negligence. 3 Stark. 6. 1 Camp. 39, 190. 7 East, 484. But if an auctioneer employed to sell an estate is guilty of negligence, whereby the sale becomes nugatory, he is not entitled to any compensation for his services, (3 Camp. 451;) and a factor or agent is not entitled to any salary where he acts against the interest of his principal, or with misconduct. 1 Com. on Contr. 271, 4, s. 8. Bro. P. C. 399, 8vo edition. 8 Ves. 371. 11 Ves. 355. 3 Camp. 451. 3 Taunt. 32. But it has lately been decided that a spirit-broker is entitled to a commission, though the sale he made be ineffectual. 3 Stark. 161.
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. & 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 Camp. 10. 1 Stark. 136.—Chitty.
[(b) ] 2 Roll. Abr. 115.
[(c) ] 9 Rep. 113.
[12 ] Trespass, or trespass on the case, lies by a master for debauching his female servant; and in such action the slightest acts of service are sufficient to establish the relation of master and servant. Moran vs. Dawes, 4 Cowen, 412.—Sharswood.
[(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.
[13 ] The case of Tickell vs. Read (Lofft, R. 215,) obviated all previous doubts upon these positions.—Chitty.
[(f) ] F. N. B. 167, 168.
[14 ] In addition to these observations of the learned commentator, it may be as well here to observe that in general all contracts entered into by a party through the intervention of a servant or agent properly authorized, may be taken advantage of by him. Paley, 225. And though in point of law the master and servant, or principal and agent, are considered as one and the same person, yet the master or principal is the person who should be regarded in the entering into, and execution of, such contracts; but though a servant depart from his authority so as to discharge the master, or the servant does not disclose his master’s name, yet the latter may in general adopt the contract, if he think fit, and sue for any breach of it. 3 M. & S. 362. 7 T. R. 359. 2 Stark. 443. But there must in all cases exist some degree of authority. Bull. N. P. 130. 1 Moore, 155 1 Burr. 489.
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 Camp. 43. And see Gilb. Evid. 94, ed. 1761. 1 Stra. 595, S. C. 2 Stra. 944, S. P. A master may also sue in trespass or case for the consequential damages of seducing his servant. Peake, C. N. P. 55. 2 T. R. 167. 6 East, 390. 3 Wils. 18. 2 N. R. 476. Slight evidence of acts of service will be sufficient. 2 T. R. 168. Peake, N. P. 55. It is not essential to support this action that the defendant knew of the party seduced being plaintiff’s servant. Peake, N. P. 55. Peake, Law of Ev. 334. Willes, 557. 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. Abr. tit. Master and Servant, O. 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 H. Bla. 511. 7 T. R. 310, 1, 4. 1 Anst. 256. But no action can be maintained for harbouring 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 labour done by his apprentice or servant against the person who tortiously employed him. 1 Taunt. 112. 3 M. & S. 191, S. P.
If any 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. & S. 485, 490. 3 B. & P. 147. 1 H. Bla. 84. Owen, 52. 2 New Rep. 411, a. 2 Taunt. 374. 3 B. & A. 47. 5 Moore, 279;) 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. & S. 147. 1 H. Bla. 81. 7 Taunt. 237. 2 Marsh. 497, S. C. 6 Taunt. 65. 4 Taunt. 189,) or where the contract is in terms made with him, (3 Camp. 329,) 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. & S. 575.
In general a mere servant, having only the custody of goods, and not responsible over, cannot 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. Abr. 49. 1 Ves. Sen. 359. 1 B. & A. 59.—Chitty.
[(g) ] 4 Inst. 109.
[(h) ] Noy’s Max. c. 43.
[15 ] 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 the 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.—Christian.
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 suspicton, neglects to exercise ordinary care in securing his property. 4 M. & S. 306. Holt. C. N. P. 209. 1 Par. & A. 59.—Chitty.
[(i) ] 1 Roll. Abr. 95.
[(k) ] Dr. and Stud. d. 2, c. 42. Noy’s Max. c. 44.
[16 ] 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. Com. Dig. tit. Merchant, ad Bac. Abr. tit. Master and Servant, 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 the 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. & C. 38. 4 D. & 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 Esp. Rep. 350. 4 Esp. 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 make the contract. 3 P. Wms. 279; and see 1 Chit. on Pleading, 4 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. & P. 368. 3 B. & A. 47. 2 D. & R. 307. 1 B. & 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 charge the principal, he will be personally liable, (1 Eg. Abr. 308. 3 T. R. 361;) or where he acts under an authority which he knows the master cannot give, (Cowp. 565, 566;) 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 Roll. Rep. 441. 1 B. & A. 36. 1 J. B. Moore, 74. 3 Price, 58. 16 Vesey, 443. 5 Esp. 247. 4 Taunt. 24. 7 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. 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. & 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. Burr. 1986. Lord 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. 3 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 whilst the stake remains in the hands of the stakeholders, 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. & A. 47. 2 J. B. Moore, 627,) and unless 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. & 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. & 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. Hardr. 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.—Chitty.
[17 ] The latter part of this position seems questionable; for how can it be a justification of the servant, in an action brought against him by a stranger, that the injury was sustained in consequence of his negligent performance of the lawful orders of his master? In 1 Roll. Abr. 95, it is said that if the servant of a tavern sell bad wine knowingly, no action lies against him, for he only did it as servant. But this seems certainly not to be relied on; for, as this case is put, the act of the servant is a wilful wrong, which no order of his master will justify him in committing. It is clear that the negligent servant is liable to his master for the damages which the master may have paid in an action brought against him for the consequences of his negligence; and it would be extraordinary if the master’s supposed commands were a justification as against third persons and not against himself.—Coleridge.
This general doctrine is also found 1 Roll. Abr. 95, but no confirmation appears in the modern books. That case would lie against the master is undoubted, and that the master would be entitled to recover the damages paid by him against his servant is also undoubted; but there is less reason for denying the primary liability of the servant for crassa negligentia, since circuity of action would thereby be avoided. The ground of presumed non-liability of the servant might be this, namely, that between the stranger and the servant there was no contract, express or implied, to perform the work skilfully, but between the master and him there was. This view of the question might, perhaps, obviate in some degree the doubt expressed by a judicious editor of the Commentaries See n. 14, p. 431, vol. i. Coleridge’s edition.—Chitty.
[(l) ] 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.
[18 ] Repealed by stat. 14 Geo. III., which re-enacted the provision found in stat. 6 Anne, c. 3.—Chitty.
[(n) ] Noy’s Max. c. 44.
[(o) ]Ff. 9, 3, 1. Inst. 4, 5, 1.
[19 ] A master is liable to be sued for the injuries occasioned by the neglect or unskilfulness of his servant whilst 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. Abr. 95, 1, 15. 1 East, 106. 2 H. Bla. 442. 3 Wils. 313. 2 Bla. Rep. 845; sed vid. Com. Dig. tit. Action on the case for deceit, B. 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. & P. 409. The master is also liable not only for the acts of those immediately employed by him, but even for the act of a sub-agent, however remote, if committed in the course of his service, (1 B. & P. 404. 6 T. R. 411;) and a corporate company are liable to be sued for the wrongful act of their servants, (3 Camp. 403;) when not, see 4 M. & S. 27. But the wrongful or unlawful acts must be committed in the course of the servant’s employment, and whilst the servant is acting as such; therefore a person who hires a postchaise is not liable for the negligence of the driver, but the action must be against the driver or owner of the chaise and horses, (5 Esp. 35. Laugher vs. Pointer, 4 B. & C.; sed vid. 1 B. & P. 409;) and it should seem he would be liable if the chaise and not the coachman or horses were hired. 4 B. & A. 590. A master is not in general liable for the criminal acts of his servant wilfully committed by him, (2 Stra. 885. 29 Hen. VI. 34;) neither is he liable if the servant wilfully commit an injury to another; as if a servant wilfully drives his master’s carriage against another’s, or ride or beat, a distress taken damage feasant. 1 East, 106. Rep. T. H. 87. 3 Wils. 217. 1 Salk. 282. 2 Roll. Abr. 553. 4 B. & A. 590. In some cases, however, 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. & S. 11. 1 Ld. Raym. 264. 4 Camp. 12. However, on principles of public policy, a sheriff is liable civilly for the trespass, extortion, or other wilful misconduct of his bailiff. 2 T. R. 154. 3 Wils. 317. 8 T. R. 431.
A servant cannot in general be sued by a third person for any neglect or non-feasance 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. Abr. 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. Abr. 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 Mod. 212. 6 East, 540. 4 M. & 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. Abr. 90;) and this though the servant acted in total ignorance of his master’s right. 12 Mod. 448, and supra. 2 Roll. Abr. 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 Mod. 209. 1 Salk. 18. 1 Lord Raym. 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. & P. 405, 411. Cowp. 406. 2 B. & P. 438. 6 Moore, 47. 2 P. & R. 33.—Chitty.
A master is civilly responsible for injuries occasioned by the tortious acts of his servant in the course of his employment, although in disobedience of the master’s orders, (Philadelphia and Reading Railroad vs. Derby, 14 Howard, 468,) if not done in wilful disregard of those orders. Southwick vs. Estes, 7 Cushing, 385.
To render an employer responsible for the fault or negligence of his employee, the injury complained of must arise in the course of the execution of some service lawful in itself, but negligently or unskilfully performed. For the wanton violation of law by a servant, although occupied about the business of his employer, such servant is alone responsible. Moore vs. Sanborne, 2 Michigan, 519.
Where a master uses due diligence in the selection of competent and trusty servants, and furnishes them with suitable means to perform the service in which he employs them, he is not answerable to one of them for an injury received by him in consequence of the carelessness of another, while both are engaged in the same service. Farwell vs. Boston and Worcester Railroad, 4 Metc. 49. Brown vs. Maxwell, 6 Hill, 592. Hayes vs. Western Railroad, 3 Cush. 270. Coose vs. Syracuse and Utica Railroad, 1 Selden, 492. Sherman vs. Railroad, 15 Barbour, 574. Walker vs. Bulling, 22 Alabama, 294.
In Bush vs. Steinman, 1 Bos. & Pull. 404, A. contracted with B. to repair a house, and B. contracted with C. to do the work, and C. contracted with D. to furnish the materials, and the servant of D. brought a quantity of lime to the house and placed it in the road, by which the plaintiff’s carriage was overturned: it was held that A. was answerable for the damage, on the ground that all the contracting parties were in his employment.
The authority of this last-cited case has been much questioned, both in England and this country. The difficulty lies in determining with certainty and precision where the relation of master and servant exists. The line has not yet been drawn satisfactorily. It is clear that, if I employ a mechanic or manufacturer to do a specific piece of work for me,—as a tailor to make me a coat, or cabinet-maker to make me a chair or table,—for which I am to pay him when finished and delivered, he is not my servant in such a sense that I am responsible for injuries to third persons from his negligence while doing the work. On the other hand, if I hire a man to drive my carriage or to dig my garden, it matters not how he is paid, he is my servant, and I am liable for him. Quarman vs. Burnett, 6 M. & W. 499. Blake vs. Ferris, 1 Selden, 48. Wherever the employee exercises a distinct independent employment, as that of a public licensed drayman or hackman, and is not under the immediate control, direction, or supervision of the employer, the latter is not liable. De Forrest vs. Wright, 2 Michigan, 368. On the other hand, a railroad corporation has been held responsible for the negligence of workmen, although they were employed by an individual who had contracted to construct a portion of the road for a stipulated sum, the work being done by the direction of the corporation. Lowell vs. Boston and Lowell Railroad, 23 Pick. 24. It has been supposed, however, that a distinction is to be made in regard to the management of real estate, and that the owner thereof ought to be held responsible for injuries resulting from negligence about it, though occasioned by others not standing to him in the relation of servants. But this view has not met with general approbation. See cases cited in the last edition of Kent, vol. 2, p. 282, note. The case of Bush vs. Steinman can only be sustained on the ground of a nuisance, an obstruction to the highway, for which undoubtedly the owner is responsible civiliter.
The general owner of real estate is not answerable for acts of carelessness or negligence committed upon or near his premises to the injury of others, if the conduct of the business which caused the injury was not on his account, nor at his expense, nor under his orders and efficient control. Earle vs. Hall, 2 Metc. 353.—Sharswood.