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So a master may support or maintain his servant in any action at law against a stranger, or may bring an action against another for beating or maiming him, assigning, as a ground for the action, a loss of services, or may even, it is said by some, justify an assault in his defence, but this seems not supportable (e); and if any person knowingly hire the servant of another, the first master may have an action to recover damages for the loss of his service, both against the servant and the person hiring him (f). But a master is answerable for the act of his servant, if done by his command, either expressly or impliedly given-nam qui facit per alium, facit per se and therefore if a servant commit a trespass by the command or encouragement of his master, the master shall be guilty of it as well as the servant. Whatever a servant is permitted to do in the usual course of his master's business is equivalent to a general command, and the master will be bound thereby (g). If a servant, by his negligence, does any damage to a stranger, the master shall answer for his neglect as if a smith's servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant. But in these cases the damage must be done while he is actually employed in his master's service, otherwise a master is not liable (h).

CHAP. XIII.

HUSBAND AND WIFE.

[See 1 Black. Com. ch. 15; 2 Steph. Com. Bk. III., ch. 2.]

Marriages. The law considers marriage in no other light than a civil contract, and therefore, like all other contracts, it is good when the parties at the time of making it were willing to contract, able to contract, and actually did contract, in proper form of law. As to the first, the maxim is, that consensus, non concubitus, facit nuptias (a). As to the second, all persons are able to contract themselves in marriage, unless they labour under what were formerly considered the canonical disabilities of consanguinity, or relation by blood, and affinity or relation by marriage, and some particular corporal infirmities. These latter disabilities only render the marriage voidable, and not ipso facto void; and it was formerly so with the first kind of disabilities, but by 5 & 6 Will. 4, c. 54, all future marriages between persons within the prohibited degrees of consanguinity or affinity are absolutely void (b). Another disability is that termed the civil disability of a prior marriage, as having another husband or wife living, of being under age, of wanting the con

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sent of parents or guardians, and of being insane. As to the third, no marriage actually performed is by the temporal law ipso facto void (except under the 5 & 6 Will. 4, c. 54), that is, celebrated by a person in orders in a parish church or public chapel (or elsewhere by special dispensation), in pursuance of banns, or a license, between single persons consenting, of sound mind, and of the age of twenty-one years, or of the age of fourteen in males, and twelve in females, if their parents or guardians do not dissent (b*). By the 4 Geo. 4, c. 76, it is provided that when a valid marriage by license or banns is solemnised between persons either of whom is under age, by means of the false oath or fraudulent procurement of one of the parties, the party so offending shall be liable to forfeit all property which would otherwise accrue from the marriage (c). We have hitherto spoken of marriages in churches by persons in holy orders, but as some persons have objection to be so married, the 6 & 7 Will. 4, c. 85, was passed, whereby it was provided that the officer called the superintendent registrar, appointed for every poorlaw union, parish, or place, under the act of 6 & 7 Will. 4, c. 86, passed "for registering births, deaths, and marriages in England," shall be the superintendent registrar of marriages therein; and the act establishes (in effect) two new modes of proceeding to celebrate marriage, in addition to those sanctioned by the Marriage Act (4 Geo. 4, c. 76), that is, it allows besides the marriage by special license, by the surrogate's license, and by banns (which were the old modes), a marriage by the superintendent registrar's certificate, without license, or by his certificate, with license (d). The provisions of the act are too numerous to be here stated. The 10 & 11 Vict. c. 58, renders valid marriages of Jews and Quakers respectively prior to 1 July, 1837,

in England, or in Ireland prior to 1845 (e). With respect to marriages contracted by British subjects in Scotland or Ireland, or in any foreign country, they are considered as valid by our law, if made in such form as is deemed sufficient in the place where contracted, and the case appears to be the same though the parties eloped to that country on purpose to evade the laws of marriage in this. It is also provided by 4 Geo. 4, c. 91, that marriages solemnised by a clergyman in the chapel or house of an ambassador, or the chapel of a British factory abroad, or by a chaplain or other person officiating by authority within the lines of a British army abroad, shall be as valid as if solemnised at home. It has been decided that a marriage celebrated in the presence of the British Consul at Antwerp (there being no ambassadors or factory there) was invalid, though the ceremony was performed in the English church at Antwerp, inasmuch as the statute does not mention a consul. The marriage was not performed in accordance with the law of Holland, and consequently was altogether void (f). And no marriage is voidable, by the ecclesiastical law, after the death of either of the parties (f).

Divorces.]-Marriages may be dissolved either by death or divorce. Divorce is either à vinculo matrimonii, for some of the canonical causes beforementioned, and those existing before the marriage, as is always the case in consanguinity; not supervenient or arising afterwards, as may be the case in affinity or corporal imbecility, or merely à mensa et thoro, for some supervenient cause, which makes it improper or impossible for the parties to live together, as in the case of intolerable ill-temper or adultery in either of the parties. However, though a divorce à vinculo cannot be obtained in the regular

MUTUAL RIGHTS, ETC.

121

course of law on the ground of adultery, yet it is frequently granted on that ground by a private act of Parliament (g). In case the divorce is à vinculo matrimonii, the marriage is declared null, as having been absolutely unlawful ab initio ; and the parties are therefore separated pro salute animarum; but in divorce à menså et thoro, the marriage bond is suspended, but not destroyed (h).

Mutual rights, &c., of husband and wife.]-The law considers husband and wife as one person; for the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything, and therefore is called a feme covert. A man therefore cannot grant anything to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence; and to covenant with her would only be to covenant with himself. Though the husband and wife cannot at common law contract with each other, or grant to each other directly, yet even direct gifts between husband and wife are often considered as effectual in the courts of equity (i). And these courts will also take cognizance of any trust created in favour of the wife, whether by the husband or a stranger; and, in administering that jurisdiction, will take views of the rights of a feme covert materially different in some respects from those of the common law. It is also to be observed, that in respect of any trust property settled to the separate use of the wife, the courts of equity allow her to sue her husband, or be sued by him; though it is a rule of the common law, founded on their identity of person, that they are incapable of standing towards each other in the relation of

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