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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. 3. A THIRD species of servants are laborers, who are only

hired by the day or the week, and do not live intre [427] moenia, as part of the family ; concerning whom the

statutes before cited 9 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 bailiff's : whom however the law considers as servants pro tempore, with regard to such of their acts as affect their master's or employer's property. Which leads me to consider,

II. The manner in which this relation, of service, affects either the master or servant. And, first, by hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that parish wherein he last served forty days'. In the next place, persons, serving seven years as apprentices to any trade, have an exclusive right to exercise that trade in any part of Englands. 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 humor of the times: which has occasioned a great variety

p Stat. 6 Geo. III. c. 26.

Stat. 6 Eliz. c. 4. 6 Geo. III. c. 28.

r See page 364.
s Stat. 5 Eliz. e. 4. sec. 31.

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 trades is equally detrimental to the public, as monopolies. This reason indeed only extends to such trades, in the exercise whereof skill [428] is required : but another of their arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by employing of youth, and learning them to be early industrious (6); but that no one would be induced to undergo a seven years servitude, if others, though equally skilful, were allowed the same advantages without having undergone the same discipline : and in this there seems to be much reason. However, the resolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but such as were in being at the making of itt: for trading in a country village, apprenticeships are not requisiteu : and following the trade seven years, without any effectual prosecution, (either as a master or a servant,) is sufficient without an actual apprenticeship w (7).

t Lord Raym. 514.
u i Veptr. 51. 2 Keb. 583.

w Lord Raym. 1179. Wellen qui tam v. Holton. Tr. 33 Geo. II. (by all the judges.)

(6) Lord Coke says, this statute was not enacted only that workmen should be skilful, but also that youth should not be nourished in idle. ness, but brought up and educated in lawful sciences and trades. 11 Co. 54.

(7) The penalty is 40s. a month, one half to the king, the other half to the prosecutor. The words of the statute are, having served as an apprentice, and there can be no doubt but the legislature intended that A MASTER may by law correct his apprentice for negli. gence or other misbehaviour, so it be done with modera. tion*: though, if the master or master's wife beats any other servant of full age, it is good cause of departure (8). But if any servant, workman, or laborer assaults his master or dame, he shall suffer one year's imprisonment, and other open corporal punishment, not extending to life or limb.

By service all servants and laborers, except apprentices, become entitled to wages: according to their agreement, if menial servants; or according to the appointment of the sheriff or sessions, if laborers or servants in husbandry: for the statutes for regulation of wages extend to such servants onlya; it being impossible for any magistrate to be a judge of the employment of menial servants, or of course to assess their wages. III. Let us, lastly, see how strangers may be affected by

this relation of master and servant: or how a master [429] may behave towards others on behalf of his servant;

and what a servant may do on behalf of his master. AND, first, the master may maintain, that is, abet and assist his servant in any action at law against a stranger: whereas, in general, it is an offence against public justice to encourage suits and animosities, by helping to bear the expense of them, and is called in law maintenanceb. A

* I Hawk, P. C. 130. Lamb. Eiren. 127. Cro. Car. 179. 2 Show. 289.

y F. N. B. 168. Bro, Abr. t. Laborers 51. Trespass 349.

Stat. 5 Eliz, c. 4.
a 2 Jones, 47.
b 2 Roll. Abr. 115.

the tradesman should have served an actual apprenticeship ; but from the words, as an apprentice, this being a penal statute, the judges have determined that he serves as an apprentice, who for seven years has been working as a master. 2 Wils. 168.; or as the master's wife: 1. Barnard. 367.

(8) Or rather of complaint to a magistrate to be discharged.

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 (9); and this loss must be proved upon the trial c. A master likewise may justify an assault in defence of his seryant, and a servant in defence of his masterd: 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 mastere. 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.

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 8. Therefore, if the servant commit a

c 9 Rep. 113.
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.

fF.x. B. 167, 163.
& 4 Inst, 109.

(9) This is an action upon the case, generally, called a per quod servitium amisit. This action by a master for beating his servant, has been contrived by a species of fiction, to be extended to a parent, to enable him to recover a pecuniary compensation, under some circumstances, for the seduction of his daughter. See 3 vol. p. 143. note. VOL. I.


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 inn-keeper's servants rob his guests, the master is bound to restitution b: 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 (10) nam, qui non prohibet, cum prohibere possit, jubet. So likewise if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action against the masteri : for although the master did not expressly order 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,

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(10) But 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 stopt as a guest, and the goods being stolen during his stay, 5 T. R. 273.

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