able caufe to be allowed by a juftice of the peace h: but they may part by confent, or make a special bargain. 2. ANOTHER fpecies of fervants are called apprentices (from apprendre, to learn) and are usually bound for a term of years, by deed indented or indentures, to ferve their mafters, and be maintained and inftructed by them. This is usually done to perfons of trade, in order to learn their art and mystery; and fometimes very large fums are given with them, as a premium for fuch their inftruction: but it may be done to hufbandmen, nay to gentlemen, and others. And children of poor perfons may be apprenticed out by the overfeers, with confent of two juftices, till twenty-one years of age, to fuch perfons as are thought fitting; who are alfo compellable to take them; and it is held, that gentlemen of fortune, and clergymen, are equally liable with others to fuch compulfion for which purposes our ftatutes have made the indentures obligatory, even though fuch parish-apprentice be a minor. Apprentices to trades may be discharged on reafonable caufe, either at the request of themselves or masters, at the quarter-feffions, or by one justice, with appeal to the sesfions "; who may, by the equity of the statute, if they think it reasonable, direct reftitution of a ratable fhare of the money given with the apprentice": and parish-apprentices may be difcharged in the fame manner, by two juftices. But if an apprentice, with whom less than ten pounds hath been given, runs away from his mafter, he is compellable to ferve out his time of abfence, or make fatisfaction for the fame, at any time within feven years after the expiration of his original contract P. 3. A THIRD fpecics of fervants are labourers, who are only hired by the day or the week, and do not live intra moenia, as h Stat. 5 Eliz. c. 4. i Stat. 5 Elia. C. 4. 43 Eliz. C. 2. 1 Jac. I. c. 25. 7 Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c.19. 17 G. II. c. 5, 18 G. III. c.47. k Salh. 57. 491. I Stat. 5 Eliz. C. 4. 43 Eliz. c. s Cro. Car. 179. m Stat. 5 Eliz. c. 4. n Salk. 67. Stat. 20 Geo. II. c. 19. P Stat. 6 Geo, III. c. 26. part part of the family; concerning whom the ftatutes before. cited have made many very good regulations: 1. Directing that all perfons who have no vifible 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 defert their work 4. Empowering the juftices at feffions, or the fheriff of the county, to fettle their wages: and 5. Inflicting penalties on fuch as either give, or exact, more wages than are fo fettled. 4. THERE is yet a fourth fpecies of fervants, if they may be fo called, being rather in a fuperior, a minifterial, capacity; fuch as frewards, factors, and bailiffs: whom however the law confiders as fervants pro tempore, with regard to fuch of their acts as affect their master's or employer's property. Which leads me to confider, II. THE manner in which this relation, of fervice, affects either the master or fervant. And, first, by hiring and fervice for a year, or apprenticeship under indentures, a person gains a fettlement in that parish wherein he last served forty days. In the next place perfons, ferving feven years as apprentices to any trade, have an exclufive right to exercife that trade in any part of England. This law, with regard to the exclufive 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 occafioned a great variety of resolu tions in the courts of law concerning it; and attempts have been frequently made for it's repeal, though hitherto without fucceís. At common law every man might use what trade he pleased; but this ftatute reftrains that liberty to fuch as have ferved as apprentices: the adverfaries to which provifion say, that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for it allege, that unfkilfulness in trades is equally detrimental to the public, as monopolies. This reafon indeed only extends to fuch trades, in the exercife whereof skill is required: but another of their arguments goes much farther; viz. that apprenticeships are ufeful to the commonwealth, by employing of youth, and learning them to be early induftrious; but that no one would be induced to undergo a feven years fervitude, if others, though equally fkilful, were allowed the fame advantages without having undergone the fame difcipline and in this there feems to be much reafon. However, the refolutions of the courts have in general rather confined than extended the restriction. No trades are held to be within the statute, but fuch as were in being at the making of it: for trading in a country village, apprenticeships are not requifite": and following the trade feven years without any effectual profecution (either as a mafter or a fervant) is fufficient without an actual apprenticeship ". A MASTER may by law correct his apprentice for negli gence or other misbehaviour, fo it be done with moderation*: though, if the master or master's wife beats any other servant of full age, it is good caufe of departure. But if any fervant, workman, or labourer affaults his mafter or dame, he fhall fuffer one year's imprisonment, and other open corporal punishment, not extending to life or limb. By fervice all fervants and labourers, except apprentices, become entitled to wages: according to their agreement, if menial fervants; or according to the appointment of the fheriff or feffions, if labourers or fervants in husbandry: for the ftatutes for regulation of wages extend to such fervants only; it being impoffible for any magiftrate to be a judge of the employment of menial fervants, or of course to affefs their wages. III. LET us, laftly, fee how ftrangers may be affected by this relation of mafter and fervant: or how a master may be Cro. Car. 179. 2 Show. 289. y F. N. B. 163. Bro. Abr. t. Labourers 51. Trespass 349. 2 Stat. 5 Eliz. č. 4. have towards others on behalf of his fervant; and what a fervant may do on behalf of his master. AND, first, the mafter may maintain, that is, abet and aflift his fervant in any action at law against a ftranger: whereas, in general, it is an offence against public justice to encourage fuits and animofities, by helping to bear the expenfe of them, and is called in law maintenance. A mafter alfo may bring an action against any man for beating or maiming his fervant; but in such case he muft affign, as a fpecial reafon for fo doing, his own damage by the lofs of his fervice; and this lofs must be proved upon the trial. A mafter likewise may justify an affault in defence of his fervant, and a fervant in defence of his master: the master, because he has an interest in his fervant, not to be deprived of his fervice; the fervant, because it is part of his duty, for which he receives his wages, to ftand by and defend his master *. Also if any perfon do hire or retain my fervant, 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 mafter and the fervant, or either of them but if the new master did not know that he is my fervant, no action lies; unless he afterwards refufe to restore him upon information and demand. The reafon and foundation, upon which all this doctrine is built, feem to be the property that every man has in the fervice of his domeftics; acquired by the contract of hiring, and purchafed by giving them wages. As for those things which a fervant may do on behalf of his master, they feem all to proceed upon this principle, that the mafter is anfwerable for the act of his fervant, if done by his command, either exprefsly given, or implied: nam qui facit per alium, facit per fe. Therefore, if the fer vant commit a trefpafs by the command or encouragement of his mafter, the mafter shall be guilty of it: though the fervant is not thereby excufed, for he is only to obey his master in matters that are honeft and lawful. If an innkeeper's fervants rob his guests, the mafter is bound to reftitution : for as there is a confidence reposed in him, that he will take care to provide honeft fervants, his negligence is a kind of implied confent to the robbery; nam, qui non prohibet, cum prohibere poffit, jubet. So likewife if the drawer at a tavern fells a man bad wine, whereby his health is injured, he may bring an action against the mafter: for although the mafter did not exprefsly order the fervant to fell it to that perfon in particular, yet his permitting him to draw and fell it at all is impliedly a general command. In the fame manner, whatever a fervant is permitted to do in the ufual courfe of his bufinefs, is equivalent to a general command. If I pay money to a banker's fervant, the banker is anfwerable for it: if I pay it to a clergyman's or a phyfician's fervant, whofe ufual bufinefs it is not to receive money for his mafter, and he embezzles it, I muft pay it over again. If a steward lets a leafe of a farm, without the owner's knowlege, the owner muft ftand to the bargain; for this is the fteward's bufinefs. A wife, a friend, a relation, that use to tranfact business for a man, are quead hee his fervants; and the principal must answer for their conduct : for the law implies, that they act under a general command; and without fuch a doctrine as this no mutual intercourfe between man and man could fubfift with any tolerable convenience. If I usually deal with a tradefman by myfelf, or conftantly pay him ready money, I am not answerable for what my fervant takes up upon truft; for here is no implied order to the tradefman to truft my fervant: but if I ufually fend him upon truft, or fometimes on truft and fometimes with ready money, I am anfwerable for all he takes up; for the tradefman cannet poffibly diftinguish when he comes by my order, and when upon his own authority *. h Noy's max. c. 43. ii Rol. Abr. 95. k Dr & Stud. d. 2. c. 42. Noy's max. c. 44. |