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smith's servant lames a horse while he is shoeing him, an action lies against the master, and not against the servant. (11) 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', 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 this 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 Ann. 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. (12) 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 da

Noy's max. c. 44.

m Upon a similar principle, by the law of the 12 tables at Rome, a person by whose negligence any fire began,

was bound to pay double to the suf ferers; or, if he was not able to pay, was to suffer a corporal punishment.

(11) The latter part of this position seems questionable; for how can it be a justification to 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 taverner 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.

(12) This statute is repealed, but a similar provision was made by therepealing statute 14 G. 3. c.78.

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mage of any individual, or the common nuisance of his majesty's liege people"; for the master hath the superintendence and charge of all his household. And this also agrees with the civil law; which holds that the pater familias, in this and similar cases, "ob alterius culpam tenetur, sive servi "sive liberi."

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 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. (13)

n

Noy's max. c. 44,

o Ff. 9. S. 1 Inst. 4. 5. 1,

(13) It is quite consistent with this principle, that, where the act of the servant is wilful, and not done by his master's orders, nor subsequently adopted by his master, no action can be maintained against this latter; the servant is alone responsible,

CHAPTER THE FIFTEENTH.

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.

I. OUR law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the matrimonial 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 animae'. And, taking it in a civil light, the law treats it as it does all other contracts: allowing it to be good and valid in 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 [434] "concubitus, facit nuptias," is the maxim of the civil law in this case and it is adopted by the common lawyers, who indeed have borrowed (especially in antient times) almost all their

a Salk.121.

b

Ff. 50. 17. 30.

Co. Litt. 33.

notions of the legitimacy of marriage from the canon and civil laws.

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; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded words of the divine law, or are consequences upon the express 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. For, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties. And therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to [435] annul the 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. 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.

d Co. Litt. 93.

e Salk. 548.

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; 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; the farthest of which is that between uncle and niece'. By the same statute all impediments arising from pre-contracts 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 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII.'s statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists.

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.

I. THE first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case,

f Gilb. Rep. 158.

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