Imágenes de páginas
PDF
EPUB

such case, it is expressly provided that this relief shall not extend to robberies committed by their own servants (y). 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 master(z): 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 amounts impliedly to a general command.(135)

(y) Post, vol. iii. pp. 233, 242.

(2) 1 Roll. Abr. 95.

liable for the consequences which result, although the servant does not follow his instructions. Armstrong v. Cooley, 5 Gilm. 509.

Where the servants of a railroad company, in the course of their employment of running the cars, negligently scatter coals from the engine which cause a fire that extends to the land of a third person and burn his property, the road will be liable. Webb v. Rome, Watertown, etc., R. R. Co., 49 N. Y. (4 Sick.) 420.

The test of a master's responsibility for the acts of his servant is, whether it was done in the prosecution of the master's business; not whether it was done in accordance with the instructions of the master to the servant. And, therefore, if the servant, while engaged in the prosecution of the master's business, deviates from his instructions as to the manner of doing it, this will not relieve the master from liability for the servant's acts. Cosgrove v. Ogden, 49 N. Y. (4 Sick.) 255. The fact that a parent living upon a quiet street, where few vehicles pass, permits a child six years of age to go unattended upon the streets, does not constitute negligence per se. Cosgrove v. Ogden, 49 N. Y. (4 Sick.) 255. The question of negligence is one of fact for a jury. Cosgrove v. Ogden, 49 N. Y. (4 Sick.) 255; Ihl v. Fortysecond street, etc., R. R. Co., 47 N. Y. (2 Sick.) 317.

But while a master is liable civilly for the fraud, negligence, or other wrongful act, done in the transaction of his business, he is not liable for a willful injury committed by the servant, unless he acts by the express or implied authority of the master; and therefore the master is not liable where the clerks in a store called in a policeman and directed him to arrest and examine the person of a lady suspected of stealing goods. Mali v. Lord, 39 N. Y. (12 Tiff.) 381; S. C., 7 Trans. App. 174. So where the keeper of a toll bridge keeps a vicious dog, which is not needed or directed by the bridge owner to be kept, and it bites a person lawfully crossing the bridge, the owner of the bridge will not be liable. Baker v. Kinsey, 38 Cal. 631. The owner of a dog is not liable for the willful act of his servant in setting him on the cattle of a third person, even though he stood near, if the servant did not act by his command, and especially if the owner, as soon as he was cognizant of the servant's act, called off his dog. Steele v. Smith, 3 E. D. Smith, 321. The lessor of a ferry is not liable for the torts of the lessee or his servants. Norton v. Wiswall, 26 Barb. 618.

A servant who is injured by the negligence or misconduct of a fellow-servant cannot maintain an action against the master for such injury. Weger v. Pennsylvania R. R. Co., 55 Penn. St. 460; King v. Boston, etc., R. R. Corp., 9 Cush. 112; Coon v. Syracuse and Utica R. R. Co., 5 N. Y. (1 Seld.) 492.

The right to terminate a contract may be reserved to either or both parties; and where the servant agreed to work for the master for a specified time at certain wages, but it was agreed that if either party became dissatisfied he might abandon the contract, this will not justify the servant in leaving on the pretense that he had other business to attend to, if there was no allegation of dissatisfaction; and he will forfeit the wages previously earned if he quits the service. Monell v. Burns, 4 Denio, 121.

A settlement with a party for his services for a particular month, or other period of time, is prima facie evidence of payment for all labor or services previously performed by him. Sherman v. Clater, 3 Head (Tenn.), 445. Where the party rendering the services gives a note to the employer after they were rendered, and subsequently pays the note, the presumption will be that all prior services were paid for. Duguid v. Ogilvie, 3 E. D. Smith, 527; 1 Abb. Pr. 145; De Freest v. Bloomingdale, 5 Denio, 304; Lake v. Tysen, 6 N. Y. (2 Seld.) 461.

(135) See note 134.

[graphic]
[merged small][ocr errors][merged small][merged small][merged small][ocr errors][merged small][ocr errors]

Though in the above and many other cases the master is civilly liable for the act of his servant, yet in general he is not criminally responsible for it(a). This rule, however, is open to exceptions, and in some peculiar circumstances a master has been held even criminally liable for the acts of his servant, though done without his knowledge, and even against his express command, as for an infringement of the revenue laws(b), or a public nuisance(c), and before the statute 6 & 7 Vict. c. 96, s. 7, the proprietor of a newspaper might have been indicted for a libel published in it by his 'servant without his authority or sanction(d).

In like manner, whatever a servant is permitted to do in the usual course of his business, is impliedly done in virtue of a general command. If I pay money to a banker's servant, or to a shopman over the counter(e); the banker or shopkeeper is answerable for it: if I pay it to a clergyman's or a physician's servant, whose usual business is not to receive money for his master, and he embezzles it, I might have to pay it over again. If the servant of a horsedealer warrants a horse without the owner's *knowledge, and even against [ *520] his orders, the owner is bound; for this transaction comes within the business of the servant of a horsedealer (f); but if a huntsman, gamekeeper, or butler affected to let a farm, or the servant of a private gentleman to warrant a horse, in these cases the master would not be bound if he did not authorize the sale, or if he forbade the warranty (g).

Persons who are usually employed to transact business for a man, are quoad hoc his servants, and the principal must answer for their conduct; for the law implies that they act under a general command; and without such a doctrine. as this no mutual intercourse between man and man could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant buys upon credit; for here is no implied order to the tradesman to trust my servant: but if I usually send him upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all he buys; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority (h).

Further, although a master is not liable for the wilful trespass of his servant, unless done by his command, express or implied (i), yet if a servant, by his negligence, does any damage to a stranger, the master may have to answer for his neglect; thus, if a smith's servant lames a horse while he is shoeing him, or a carrier's servant loses a parcel, in each of these cases an action lies against the master(k). But in any of these cases the damage must *be done while the servant is actually employed in the master's service; otherwise the [*521] servant shall alone answer for his own misbehaviour. On this principle it has been held that if a servant, in driving or returning from driving his master, or going anywhere on his master's business, negligently injure a third person, the

(a) R. v. Huggins, 2 Str. 882.

(b) R. v. Dixon, 3 M. & S. 11.

(c) Reg. v. Stephens, L. R. 1 Q. B. 702.
(d) R. v. Gutch, M. & M. 433. See Colburn
v. Patmore, 1 C. M. & R. 73.

(e) Kaye v. Brett, 5 Exch. 269, 274. See
Barrett v. Deere, M. & M. 200; Wilmott v.
Smith, ib. 238; Per Maule, J., Smith v. Hull
Glass Co., 11 C. B. 897, 928.

(f) Howard v. Sheward, L. R. 2 C. P. 148; Pickering v. Busk, 15 East, 38, 45.

44.

(g) Fenn v. Harrison, 3 T. R. 757, 760. (h) Dr. & Stud. d. 2, c. 42. Noy's Max. c. Anon. 1 Show. 95; Nickson v. Brohan, 10 Mod. 109; Hiscock v. Greenwood, 4 Esp. 174; Rusby v. Scarlett, 5 lb. 76.

(i) M'Manus v. Crickett, 1 East, 106; Lyons v. Martin, 8 A. & E. 512.

(k) Williams v. Cranston, 2 Stark. 82.

master is liable(); though he is not so if the servant at the time were using his master's horse and carriage for his own purpose (m). Upon this principle, also, by the common law (n), 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 set fire to a house; for there he was not in his master's immediate service, and must himself have answered the damage personally. And this would seem to be the law still, for though it has been enacted (o) that no action shall lie against any person in whose house a fire shall begin accidentally, yet the court of queen's bench decided that the word "accidentally" did not apply to fires caused by the negligence of either the owner or any of his servants(p). (136)

A master would also be chargeable in damages if his *domestic [*522] servant cast anything out of his house into the street or common highway, to the damage of an individual, or to the common nuisance of the public(); for the master has the superintendence and charge of all his household. And this agrees with the civil law(r); which holds that the pater familias, in this and similar cases, "ob alterius culpam tenetur, aut servi, aut liberi."

We may observe, that in cases such as have here been put, the master may be frequently a loser by the trust reposed in a servant, but never can be a gainer; he may be answerable for his servant's misbehaviour, but cannot 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 take advantage of his own wrong(s).

(1) Patten v. Rea, 2 C. B. N. S. 606. (m) Goodman v. Kennell, 3 C. & P. 167; Joel v. Morrison, 6 C. & P. 501, 503; Sleath v. Wilson, 9 C. & P. 607.

(n) Noy's Max. c. 44; Dr. & Stud. d. 2, c. 42.

(0) By 14 Geo. 3, c. 78, s. 86, re-enacting with some extension of place, 6 Anne, c. 58, s. 7. By both these acts, it is provided that if such fire happens through the negligence of any servant (whose loss is commonly very little), such servant shall forfeit 100%. to be distributed among the sufferers; and, in default of payment, shall be committed, and kept to hard labour for eighteen months. Upon a similar principle, by the law of the

twelve tables at Rome, a person by whose negligence any fire began, was bound to pay double to the sufferers; or, if he was not able to pay, was to suffer a corporal punishment. Tab. vii. cap. 6.

(p) Filliter v. Phippard, 11 Q. B. 347. See per Lord Lyndhurst, Viscount Canterbury v. Att. Gen. 1 Phill. 306, 315; Vaughan v. Menlove, 4 Scott, 244.

(9) Noy's Max. c. 44; Turberville v. Stampe, 1 Ld. Raym. 264.

(r) Inst. 4, 5, 1.

(8) Nullus commodum capere potest de injuriâ suâ propriâ. Co. Litt. 148 b; Broom's Leg. Max. 4th ed. 275, et seq.

(136) See note 134.

[graphic]

*CHAPTER XV.

HUSBAND AND WIFE.

[*523]

THE second private relation of persons is that created by marriage, and includes the reciprocal rights and duties of husband and wife; or, as our older law-books call them, of baron and feme. In the consideration of which we shall, in the first instance, enquire 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 consequences of marriage, and of its dissolution.

We must at once remind the reader, by way of preface, that formerly, the ecclesiastical courts (a), and those courts only, had jurisdiction in matrimonial causes, and possessed the exclusive power of annulling incestuous and other unscriptural marriages, though as such courts were supposed to act only pro salute animæ, their power generally ceased at the death of the parties implicated. This authority, claimed by the clergy in former times, when Roman Catholicism was the state religion, remained in the spiritual courts till A. D. 1857, when it was taken from them by the statute 20 & 21 Vict. c. 85, which established the "Court for Divorce and Matrimonial Causes "(b).

I. Even before the above-mentioned act was passed, our law considered marriage as it now considers it, in no *other light than as a civil con[*524] tract (c).(137) And, regarding it in this light, our law treats it as it does other contracts: allowing it to be good and valid

(I.) How marriage may be contracted.

(a) As to the present jurisdiction of which, post, vol. iii.

(b) The jurisdiction of this court, and the effect of the various acts amending the 20 & 21 Vict. c. 85, are considered in vol. iii.

(c) Upon this point, see Lord Stowell's judgment in Dalrymple v. Dalrymple, 2 Hagg. Con. Rep. 64.

(137) In the United States, the rules of the common law upon this subject have been very generally adopted, and in a legal point of view marriage is regarded as a civil contract, governed by the same general principles as other contracts. But, unlike other contracts, it is indissoluble except by the death of one of the parties, or by a decree made by competent authority, and for causes sanctioned by the law.

The rules of the common law relating to marriage are few and simple. That law requires no ceremony, no solemnization by minister, priest, or magistrate; and a marriage is complete where there is a full, free, and mutual consent by parties who are capable of contracting the relation, even though not followed by cohabitation. Caujolle v. Ferrie, 23 N. Y. (9 Smith) 90, 106; Jackson v. Winne, 7 Wend. 47; Bissell v. Bissell, 55 Barb. 325; 7 Abb. Pr. (N. S.) 16; Clarke v. Clarke, 10 N. H. 383; Londonderry v. Chester, 2 id. 268; Demaresly v. Fishby, 3 A. K. Marsh. 368; State v. Murphy, 6 Ala. 765.

No form of words is necessary in solemnizing the marriage contract. A bow of the head, in response to the proper interrogatory, may indicate assent as well as the words "yes," or "I do." People v. Taylor, 1 Mich. (N. P.) 198; Graham v. Bennett, 2 Cal. 503.

But intention is an essential ingredient of the contract of marriage; and, therefore, a marriage ceremony performed in jest does not make the parties husband and wife, even though the ceremony was performed by a justice of the peace, who was in doubt at the time whether the parties were in jest or in earnest. McClurg v. Terry, 21 N. J. Eq. 225. See Aymar v. Roff, 3 Johns. Ch. 49.

A promise to marry in future, though followed by cohabitation as man and wife, is not & VOL. I. - 44

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, the parties must be willing to contract.(138) "Consensus non concu

valid marriage. Cheney v. Arnold, 15 N. Y. (1 Smith)345; Duncan v. Duncan, 10 Ohio St. 181. See Letters v. Cady, 10 Cal. 533. Where the female is under fourteen years at the time of her marriage, and she continues to live with the husband as man and wife after she reaches that age, it will be a valid marriage at common law. Koonce v. Wallace, 7 Jones' Law (N. C.), 194. See Hantz v. Sealey, 6 Binn. 405.

In several of the states there are statutes regulating marriages, and in some cases imposing penalties for a disregard of the statute; but, if the statute does not declare marriages void for not complying with it, a marriage which is valid at the common law will be valid even though the statute has not been observed. Campbell v. Gullatt, 43 Ala. 67 ; Hargroves v. Thompson, 31 Miss. (2 George) 211; State v. Robbins, 6 Ired. 23; Parton v. Hervey, 1 Gray (Mass.), 119; Londonderry v. Chester, 2 N. H. 268; Clayton v. Wardell, 4 N. Y. (4 Comst.) 230. There are cases, however, which hold that if the act is forbidden under a penalty, the contract will be void. Livgnia v. Buxton, 2 Greenl. 102; Bashaw v. State, 1 Yerg. (Tenn.) 177; Holmes v. Holmes, 1 Abb. (U. S.) 525.

An action for a breach of marriage promise is founded upon the mutual promises of the parties, which must be shown to exist before a right of action is established. Standiford v. Gentry, 32 Miss. 477; Allard v. Smith, 2 Metc. (Ky.) 297. The evidence requisite for that purpose need not be discussed in this place. See Hotchkins v. Hodge, 38 Barb. 117; Sprague v. Craig, 51 Ill. 288; Thurston v. Cavenor, 8 Clarke (Iowa), 155; Waters v. Bristol, 26 Conn. 398. If one of the parties to a contract of marriage is a female infant, and the other an adult, the infant may hold the other party to the contract, although not legally bound herself by the agreement. Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 7 id. 22.

A married man who enters into a contract of marriage with a female who does not know of his marriage, will be liable for a breach of marriage promise. Coover v. Davenport, 1 Heisk. (Tenn.) 368.

An action for a breach of marriage promise will lie at once, upon a positive refusal to perform the contract, although the time of performance has not arrived. Burtis v. Thompson, 42 N. Y. (3 Hand) 246; Frost v. Knight, L. R., 7 Exch. 111; S. C., 1 Eng. Rep. 218.

A man who, by false representations, induces a female to marry him when he is not competent to enter into the marriage relation, because he had formerly been married to a woman who had procured a divorce, but was still living, will be liable to an action for damages. Blossom v. Barrett, 36 N. Y. (10 Tiff.) 434; 5 Trans. App. 36.

It is a good defense to an action for a breach of marriage promise to show that the plaintiff, previous to the time of making the promise, fraudulently concealed from the defendant the fact that she had been delivered of a bastard child. Bell v. Eaton, 28 Ind. 468; Reynolds v. Reynolds, 3 Allen (Mass.), 605; Baker v. Baker, 13 Cal. 87: Morris v. Morris, Wright, 630; Guilford v. Oxford, 9 Conn. 321; Scott v. Shufeldt, 5 Paige, 43. Or if she was a lewd character, of which he was ignorant at the time of the promise. Burnett v. Simpkins, 24 Ill. 264; Goodall v. Thurman, 1 Head (Tenn.), 209; Berry v. Bakeman, 44 Me. 164. But as to this latter point, see Reynolds v. Reynolds, 3 Allen (Mass.), 307; Scroggins v. Scroggins, 3 Dev. 535; Leavitt v. Leavitt, 13 Mich. 352; Baker v. Baker, 13 Cal. 87.

A promise of marriage, made after seduction has been effected, and in consequence thereof, is not thereby rendered invalid. Hotchkins v. Hodge, 38 Barb. 117.

But a promise of marriage made in consideration of illicit intercourse is not binding. Goodall v. Thurman, 1 Head (Tenn.), 209.

(138) In all valid contracts consent is an essential element. The assent must be free from illegal restraint, and it must be given by one who has legal capacity to enter into the contract. And where a marriage is entered into while one of the parties is under duress, the contract is void and will be set aside by the courts on application in due season by the injured party. Ferlat v. Gojon, Hopk. 478; Collins v. Collins, 2 Brews. (Penn.) 515; Robert son v. Cole, 12 Tex. 356; Clark v. Field, 13 Vt. 460.

But a marriage contracted through fear of imprisonment is not void, when the fear was

« AnteriorContinuar »