5 Eliz. c. 4.

Labourers.

5 Eliz. c. 4.

6 Geo.3, c. 26. Stewards.

1 Hawk. P. C. 130.

able cause, either at the request of themselves or masters at the quarter sessions, or by one justice, with appeal to the sessions, who may direct restitution of a rateable share of the premium(c).

Labourers are only hired by the day or the week, and do not live intra mania as part of the family. They are also regulated by certain statutes (d). Stewards, factors, and bailiffs are rather in a superior or ministerial capacity.

A master may, by law, correct his apprentice for negligence or other misbehaviour, so it be done with moderation; though, if a master or master's wife beats any other servent of full age, it Labourers, 51. is good cause of departure (e). But if any servant, workman, or

F. N. B. 168.
Bro. Ab. tit.

Trespass,"

349.

5 Eliz. c. 4.

The rights and liabilities of masters in respect of ser

vants.

9 Rep. 113.

2 Roll. Abr. 546.

labourer assaults his master or mistress, he shall suffer one year's imprisonment and other open corporal punishment, not extending to life or limb.

The master may maintain, that is, assist his servant in any action at law against a stranger, but in general it is an offence against public justice to encourage suits by helping to bear the expense of them, and is called in law maintenance.

A master may bring an action against any man for beating or maiming his servant, but in such case he must assign as a special reason his own damage by the loss of his service. A master may justify an assault in defence of his servant, and a servant in defence of his master. And if any person hires or retains my servant, being in my service, for which the servant departs from me and goes to serve the other, I may have an action for damages against both the new master, or the servant, or either; but if the new master did not know that he was my servant no F. N. B. 167, action lies, unless he afterwards refuse to restore him (ƒ). The master is answerable for the act of his servant, if done by his command, either express or implied. If the servant commit a trespass by the command of his master, the master is guilty of

168.

4 Inst. 109.

poor children, under the provisions of 7 Geo. 3, and also for the apprenticing of the children of poor persons. By 5 & 6 Wm. 4, c. 19, ss. 26 & 27, the placing out parish apprentices in the sea service is regulated. The statute 5 Eliz. c. 4, s. 35, gives jurisdiction to the sessions in cases of apprenticeship, empowering the justices to cancel indentures of apprenticeship in cases of ill usage of apprentices by their masters, or misconduct of apprentices, a single justice being authorized to hear the complaint, and if not settled, to bind the parties over to the sessions.

(c) See ante, note (a).

(d) As to who are labourers within the 20 Geo. 2, c. 19, see 1 M. & R. 409, and 7 B. & C. 536.

(e) See ante, note (a).

(f) But if he continues to employ him after notice of his being the servant of another an action will lie; 6 T. R. 221.

c. 43.

95.

it, though the servant is also liable to answer for it; and if an innkeeper's servant rob his guests, the master is bound to make Noy's Max. restitution. So, if the drawer of a tavern sells a man bad wine, by which his health is injured, he may bring an action against the master. Whatever a servant is permitted to do in the usual 1 Roll. Abr. 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 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, accustomed 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. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes upon trust; 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 takes up (g). If a servant Dr. & Stud. does, through negligence, any damage to a stranger, the master Noy's Max. must answer for his neglect. If a smith's servant lames a horse c. 44. in shoeing him, an action lies against the master. By 6 Ann. c. 3 (h), no action will lie against any in whose house a fire accidentally begins. But if it happens through negligence of any servant, such servant shall forfeit 100%. to the sufferers, and in default of payment be committed to prison for eighteen months.

d. 2, c. 42.

CHAPTER XV.

OF HUSBAND AND WIFE.

THE second private relation of persons is that of marriage, Of husband which includes the reciprocal rights and duties of husband and and wife.

wife.

Our law considers marriage a civil contract, and treats it Of marriage.

as

(g) Where a party has dealt with a tradesman on credit, and he intends to pay ready money in future, notice must be given to the tradesman himself, not to the tradesman's servant; 3 Esp. 85. See as to the liability of master and servant for giving or bringing a false character; 32 Geo. 3, c. 56.

(h) And 14 Geo. 3, c. 78, s. 84.

Disabilities and incapacities.

Co. Litt. 33.

it does all other contracts, allowing it to be valid if the parties at the time of making it were willing to contract, able to contract, and actually did contract, in the forms required by law (a).

The disabilities to contract marriage are canonical and legal; canonical are those which, by the ecclesiastical laws, are sufficient to avoid the marriage in the spiritual court, but which in our law only make the marriage voidable, and not ipso facto void until sentence of nullity be obtained. Of this nature are pre-contract, consanguinity, or relation by blood, and affinity or relation by marriage, and some particular corporal infirmities. But after the death of either of the parties the spiritual courts cannot declare such marriages to have been void (b). Legal disabilities are those which are created or enforced by the municipal laws, and which make the contract void ab initio, and not merely voidable. One of these is a prior marriage, or having another husband or wife living, when besides the penalties consequent upon it as a felony (c), the second marriage is void. Another legal disability is want of age. If a boy under fourteen, or a girl under twelve, marries, this marriage is only inchoate and imperfect; and when either of them comes to the age aforesaid, they may disagree and declare the marriage void without any divorce or sentence in the spiritual court. If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion, he may disagree as well as she may: for in contracts the

(a) By 4 Geo. 4, c. 76, so much of 26 Geo. 2, c. 33, and of 4 Geo. 4, c. 17, as was then in force was repealed, and provision made for the celebration of marriages in future; but so much of 4 Geo. 4, c. 76, and of 3 Geo. 3, c. 146, as relates to the registration of marriages, was repealed by 6 & 7 Wm. 4, c. 86, which provides for the future registration of marriages. By 6 & 7 Wm. 4, c. 85, marriages by license or by special license are to be solemnized as theretofore. Marriages after publication of banns are to be solemnized as theretofore on production of a registrar's certificate, as therein provided. Places of religious worship of any denomination may be registered for solemnizing marriages therein. Marriages may be solemnized in such registered places, in the presence of a registrar and two witnesses. Marriages may also be celebrated before the superintendent registrar and some registrar of the district and two witnesses. The superintendent registrar may also grant licenses for marriages in such registered places. Marriages are not to be solemnized therein unless by virtue of a license from the superintendent registrar until after notice to him and the expiration of twenty-one days, as therein provided, and not with such license, until after notice so given, and the expiration of seven days therefrom. In each case a certificate from the superintendent registrar is required.

(b) By 5 & 6 Wm. 4, c. 54, s. 2, all marriages thereafter celebrated between persons within the prohibited degrees of consanguinity or affinity are declared void.

(c) See book 4, c. 7.

obligation must be mutual; both must be bound or neither; and so it is vice versa, when the wife is of years of discretion and the husband under. An incapacity arises from want of consent of parents or guardians. Another incapacity is want of reason, without a competent share of which the matrimonial contract cannot be valid; and by 15 Geo. 2, c. 30, the marriage 1 Roll. Abr. of lunatics, and persons under phrenzies, if found lunatics under commission, or committed to the care of trustees, by act of liament is void.

par

357.

There are two kinds of divorce, the one total, the other Divorce. partial, the one a vinculo matrimonii, the other merely a mensa A vinculo et thoro. The total divorce a vinculo matrimonii must be for matrimonii. some of the canonical causes of impediment before mentioned,

when the issue of such marriage are illegitimate. Divorce, a A mensa et mensa et thoro, is when the marriage is just and lawful ab thoro. initio; but for some supervenient cause it becomes improper or impossible for the parties to live together, as in the case of intolerable ill-temper or adultery in either of the parties. And divorces a vinculo matrimonii for adultery have been frequently granted by act of parliament.

In case of a divorce a mensa et thoro, the law allows alimony Alimony. to the wife, being that allowance made to a woman for her support out of her husband's estate, which is settled at the discretion of the ecclesiastical judge. This is sometimes called her estovers, for which, if he refuses payment, there is a writ at common law de estoveriis habendis, in order to recover it. It 1 Lev. 6. is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law Cowell, tit. allows her no alimony.

Alimony.

Legal conse

quences of marriage and of its dissolu

tion.

By marriage, the husband and wife are one person in law, the legal existence of the woman is suspended during the marriage, or at least incorporated into that of the husband, under whose protection and cover she performs every thing, and is therefore called in our law-french, a feme covert, and her condition during her marriage is called her coverture. Upon this principle of an union of person depend almost all their legal rights, duties, and disabilities; for this reason a man cannot grant any thing to his wife, or enter into covenant with her. Co. Litt. 102. But a woman may be attorney for her husband, for that implies no separation from him. And a husband may bequeath to his wife by will, for that cannot take effect till his death. The Co. Litt. 112. husband is bound to provide his wife with necessaries, and if she contract debts for such necessaries he is obliged to pay

F. N. B. 27.

Salk. 118.

Stra. 647.

1 Lev. 5.

3 Mod. 186.

Salk. 119,

1 Roll. Abr. 347.

Co. Litt. 133.

3,

431.

them. But for any thing besides necessaries he is not chargeable, and if she elopes and lives with another man he is not chargeable even for necessaries, if the party furnishing them is apprized thereof. The husband is bound to pay the debts of the wife contracted before marriage. If the wife be injured in her person or property she can bring no action for redress without her husband's concurrence, and in his name as well as her own, nor can she be sued without making her husband a defendant.

But it is otherwise where the husband has abjured the realm or is banished; for then he is dead in law, and the wife may sue 1 Hawk, P. C. or be sued as a feme sole. In criminal prosecutions too, the wife may be indicted and punished separately, for the union is a civil one only. But in trials of any sort they are not allowed 2 Hawk. P. C. to be evidence for or against each other; principally because of the union of person. If they were admitted to be witnesses for each other, they would contradict one maxim of law "nemo in propria causa testis esse debet;" and if against each other they would contradict another maxim "nemo tenetur seipsum accusare." Where, however, the offence is directly against the person of the wife, this rule has been dispensed with, and therefore, by 3 Hen. 7, c. 2, if a woman be forcibly taken away and married, she may be a witness against such her husband, in order to convict him of felony (d). In the civil law, the husband and the wife are considered as two distinct persons, and may have separate estates, contracts, debts, and injuries, and, therefore, in our ecclesiastical courts a woman may sue and be sued without her husband.

State Trials, vol. 1.

Lord Audley's

case.

Stra. 633,

Cod. 4, 12, 1.

2 Roll, Abr.

298.

All deeds executed, and acts done by the wife, during her coverture are void (e), except it be a fine or the like matter of Litt. 669, 670. record, in which case she must be solely and secretly examined, to learn if her act be voluntary.

2 Lev. 128. Stra. 1207.

The wife may, if necessary, have security of the peace against her husband, or in return, the husband against his wife.

(d) By the bankrupt act, 6 Geo. 4, c. 16, s. 37, the commissioners may summon and examine the bankrupt's wife, and she incurs such penalty for refusing to attend or be examined as is provided with respect to other persons.

(e) By 11 Geo. 4 and 1 Wm. 4, c. 65, ss. 3 & 4, a feme covert may be admitted by attorney to a copyhold estate, to which she may be entitled by descent, surrender to the use of a will, or otherwise, and she is empowered by writing, under her hand and seal, to appoint an attorney on her behalf, for the purpose of taking such admittance.