may

*We may observe, that in all the cases here put, the master [*432] be frequently a loser by the trust reposed in his servant, but never can be a gainer; he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.

CHAPTER XV.

OF HUSBAND AND WIFE.

THE second private relation of persons is that of marriage, which includes the reciprocal rights and duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the consideration of which I shall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.

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

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

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

The mere fact, however, that one is servant of another, does not make the other liable for the negligent or wrongful conduct of the servant, unless he was at the time engaged in the master's business or executing his expressed or implied commands. Lyons v. Martin, 8 A. and E. 512; Mitchell v. Crassweller, 13 C. B. 237. And where a servant, even though at the time employed in the master's service, steps aside from his duty to commit a trespass or other wrong to another, the servant alone is responsible for such wrongful conduct. McManus e. Crickett, 1 East. 105; Lyons v. Martin, 8 A. and E. 512; Croft v. Alison, 4 B. and Ald. 590; Vanderbilt v. Richmond Turnpike Co., 2 N. Y. 479; Fox v. Northern Liberties, 3 W. and S. 103; Church v. Mansfield, 20 Conn. 284; Wright v. Wilcox, 19 Wend. 347; Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. 455; Yates v. Squires, 19 Iowa, 26; Cox v. Keahey, 36 Ala. 340.

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

I. Our law considers marriage in no other light than as a civil contract. (1) The holiness of the matrimonial state is left entirely to the ecclesiastical law, the temporal courts not having jurisdiction to consider unlawful marriage as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro salute animæ. (a) And, taking it in this civil light, the law treats it as it does all other contracts: allowing it to be good and valid in

(a) Salk. 121.

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

The master is not excused, in the case of a negligent injury to a third person, by the fact that, at the time of the injury, the servant though employed in the master's service, was exceeding bis instructions, or acting in disregard thereof, and that the injury occurred in consequence of the failure to observe them. Luttrell v. Hazen, 3 Sneed, 20; Powell v. Deveney, 3 Cush. 304; Southwick v. Estes, 7 Cush. 335; May v. Bliss, 22 Vt. 477; Weed v. Panama R. R., 17 N. Y. 362; Philadelphia, &c., R. R. Co. v. Derby, 14 How. 488.

One important exception to the maxim respondeat superior is where the employee, whose negligent conduct has caused the injury, was at the time engaged in an independent employ ment, and not under the immediate control, direction or supervision of the employer; as in the case of a licensed drayman, employed to draw merchandize and deliver at the store of his employer; De Forest v. Wright, 2 Mich. 363; and see Milligan v. Wedge, 12 A. and E. 737; Cuthbertson v. Parsons, 10 C. B. 304; McGatrick v. Wason, 4 Ohio, N. S. 566.

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

If, however, the injury necessarily results from the ordinary mode of doing the work contracted for, the employer as well as the contractor may be held responsible therefor. Chicago v. Robbins. 2 Black. 418.

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

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

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

VOL. I-36

all cases, where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and, lastly, actually did contract, in the proper forms and solemnities required by law.

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

Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities. What those are it will be here our business to inquire. Now these disabilities are of two sorts; first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are precontract; (b) Ff. 50, 17, 30.

(c) Co. Litt. 33.

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

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

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

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

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

On the other hand, contracts in procuration of marriage are void, at least in equity: 1 Ch. Rep. 47; 3 Ch. Rep. 18; 3 Lev, 411; 2 Chan. Ca. 176; 1 Vern. 412; 1 Ves. 503; 3 Atk. 566; Show. P. C. 76; 4 Bro. P. C. 144, 8vo. ed.; Co. Litt. 203, b; Forrest Rep. 142; and semble it would be so at law; 2 Wils. 347; 1 Salk. 156, acc. Hob. 10, cont. Persons conspiring to procure the marriage of a ward in chancery by undue means, are liable not only to be committed, but to be indicted for a conspiracy. 3 Ves. and B. 173.]

That contracts in restraint of marriage are void, see in addition to the cases above cited, Hartley v. Rice, 10 East, 22; Sterling v. Sinnickson, 2 South. 756. Conditions subsequent in deeds, which are in general restraint of marriage, are also void, though reasonable conditions, the purpose of which is only to throw around the relation proper restraints and protections, are permissible; the court placing upon them a construction most favorable to the person restrained. Daley v. Des' uverie, 2 Atk. 251. Coalitions that one shall not marry without consent of parent or guardian, or not to a person or persons named, or not until reaching a specified age, if reasonable, or not to a native of a particular country: Perrin v. Lyon, 9 East, 170; or that a widow shall not marry again: Lloyd v. Lloyd, 16 Jur. 231; are conditions which have been sustained, though in the case of personal property, a condition in restraint of the marriage of a widow will be looked upon as imposed in terrorem only, and as void unless there be a limitation over in case of a breach. See 1 Jarm. on Wills, 710, and notes; Willard's Eq. 215; 1 Greenleaf's Cruise. 483, 484; Parsons v. Winslow, 6 Mass. 169.

(2) Marriage is sometimes spoken of as a contract, made in due form of law, by which a man and a woman reciprocally engage to live with each other during their joint lives, and to discharge towards each other the duties imposed by law on the relation of husband and wife. Bouv. Law Dic. "Marriage; " and see Clayton v. Wardell, 4 N. Y. 230. In a legal sense, however, marriage is not a contract, but is a domestic relation resulting from contract. Ditson v. Ditson, 4 R. I. 101; Dickson v. Dickson, 1 Yerg. 112; Maguire v. Maguire, Dana, 183; Noel v. Ewing, 9 Ind. 49; it is "the union of one man and one woman so long as they shall both live, to the exclusion of all others, by an obligation which during that time, the parties cannot, of their own volition and act, dissolve, but which can be dissolved only by authority of the state. Nothing short of this is a marriage." Perkins, J., in Roche v. Washington, 19 Ind. 57.

consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law or are consequences plainly deducible from thence it therefore being sinful in the persons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. But such marriages not being void ab initio, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. (3) For, after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties. (d) And therefore when a man had married his first wife's sister, and after her death the bishop's court was *proceeding to annul the [* 435 ] marriage and bastardize the issue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for incest. (e) These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII, c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God's law; (4) and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge, and fruit of children, shall be indissoluble. And, because in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money, it is declared, by the same statute, that nothing, God's law except, shall impeach any marriage, but within the Levitical degrees; (5) the farthest of which is that between uncle and niece. (f) By the same statute all impediments arising from precontracts to other persons were abolished and declared of none effect, unless they had been consummated with bodily knowledge: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 and 3 Edw. VI, c. 23. How far the act of 26 Geo. II, c. 33, (6) which prohibits all suits in ecclesiastical courts to compel

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

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

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

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

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

a marriage, in consequence of any contract, may collaterally extend to revive this clause of Henry VIII's statute, and abolish the impediment of precontract, I leave to be considered by the canonists. (7)

The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable; not that they dissolve a contract already formed, but they render the [*436] parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial union. (8)

1. The first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void: (g) polygamy being condemned both by the law of the New Testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express, (h) that "duas uxores eodem tempore habere non licet." (9)

2. The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law. (i) But the canon law pays a greater regard to the constitution, than the age, of the parties; (j) for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again. (k) If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may for in contracts the obligation must be mutual; both must be bound, or neither: (10) and so it is, vice versa, when the wife is of years of discretion, and the husband under. (7)

(g) Bro. Abr. tit. Bastardy, pl. 8. (j) Decretal. l. 4, tit. 2, qu. 3.`

(h) Inst. 1, 10, 6. (k) Co. Litt. 79.

(i) Leon. Constit. 109. (l) Ibid.

(7) [A contract per verba de prosenti tempore used to be considered in the ecclesiastical courts ipsum matrimonium, and if either party had afterwards married, this, as a second marriage, would have been annulled in the spiritual courts, and the first contract enforced. See an instance of it, 4 Co. 29.]

(5) And in such a case the parties may treat the marriage as absolutely void, and are at liberty to contract lawful matrimony without first obtaining decree of nullity. But in cases where the invalidity depends upon questions of fact, it is manifestly the dictate of proper prudence that a suit for decree of nullity should be instituted in the proper court.

() The statute 9 Geo. IV, c. 31, the provisions of which have very generally been adopted in the American states, exempts from the criminal provisions for the punishment of polygamy the case of a party whose husband or wife shall have been absent from such person for the space of seven years then last past, and shall not have been known to such person to be living within that time; but the second marriage under such circumstances is nevertheless void, and either party may withdraw from it on discovering the error under which it was agreed to. Kenley v. Kenley, 2 Yeates, 207; Williamson v. Parisien, 1 Johns. Ch. 389; Heffner v. Heffner, 23 Penn. St. 104. But it seems that by statute in some states the second marriage is made voidable only. See Valleau v. Valleau, 6 Paige, 207; White v. Lowe, 1 Redf. Sur.

R. 378.

(10) If parties who are of the proper age of consent agree to marry each other, and one of them is under the age of twenty-one years, and the other has reached that age, the latter is bound by the contract, and liable to respond in damages for a breach thereof, while the former may repudiate it with impunity. Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 7 Cow. 22. The common law rule that either party to a marriage, while one is under the age of consent