tleman's servant, whose usual business it is not to receive money for his master, and he embezzle it, I must pay it over again (d). So [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] if he purloin it, so that it comes not to my use; [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; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority (e).] Upon the same ground, the master is not liable for a crime or wilful injury,-such as an assault, committed by the servant without his command or encouragement, though it may be in the course of, or in relation to, the service (ƒ). While the master is, in the cases above mentioned, liable for the acts of his servant, the latter is, in many instances, not liable for what he does in that capacity. For with respect to his purchases from tradesmen for his master's use, if he be known by the person with whom he deals to be acting merely as a servant, and if his authority to purchase be sufficient, he cannot himself be charged for the price of the goods. Nor can a servant, to whom his master has given a sum of money, for the purpose of paying it over to a third party, be sued by that party for the money, in the event of its remaining unpaid (g). And in like manner a servant cannot be sued by a third person dealing with the master, for an act of negligence committed in the & El. 512; Grant v. Norway, 10 C. B. 665; Coleman v. Riches, 16 C. (d) 1 Bl. Com. 430. (e) Dr. and Stud. d. 2, c. 42; Noy's Max. c. 44; Nickson v. Brohan, 10 Mod. 111; Hiscox v. Greenwood, 4 Esp. 174; Rusby v. Scarlett, 5 Esp. 76. (f) See M'Manus v. Crickett, 1 East, 106; Gordon v. Rolt, 4 Exch. 365; Peachey v. Rowland, 13 C. B. 182. (g) Howell v. Batt, 2 Nev. & M. 381; Greenway v. Hurd, 4 T. R. 553; Coles v. Wright, 4 Taunt. 198. service of the master. Thus, if a parcel be mislaid by a stage coachman, the owner of the coach is liable, to the owner of the parcel, but not the coachman himself (h). For all crimes, however, a man is criminally responsible,— and for all wilful or other injuries of a private character, is generally liable to an action for damages,-whether he did the act by the authority of a master, or not (i). (h) Williams v. Cranstoun, 2 Stark. Rep. 82; Cavenagh v. Such, 1 Price, 328; et vide 1 Roll. Ab. 94, 95. (i) Stephens v. Elwall, 4 Mau. & Sel. 259; Wilson v. Peto, 6 Moore, 47. CHAPTER II. 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, baron and feme.] And here it may be proper to premise, that marriage having formerly ranked in the established religion of the country as a Christian sacrament, it naturally fell, during that period, under the cognizance of the Ecclesiastical Courts, so as to give them power of adjudication in various matters of a matrimonial description, such, for example, as a divorce, whether à mensâ et thoro, or à vinculo matrimonii, of which we shall presently speak more at large (a). Nor did this state of things sustain any change at the period of the Reformation; notwithstanding which event, the courts spiritual still continued to exercise the jurisdiction that had immemorially belonged to them in the matters here described. But the same session of parliament, which deprived these courts of their power in causes testamentary, stripped them also of that which they enjoyed in causes matrimonial; for by 20 & 21 Vict. c. 85 (b), a new court has been erected to supersede them in this respect, under the title of the "Court for Divorce and Matrimonial Causes," to be held before the Lord Chancellor and certain of the judges (c), and the judge of the (a) As to other matrimonial causes entertained by the Ecclesiastical Courts, vide post, bk. v. c. XIII. (b) This Act is to come into operation on such day, (not sooner than 1 Jan., 1858,) as her Majesty shall by Order in Council, (to be made at least one month previously,) appoint. (Sect. 1.) (c) These are the chief justices and the senior puisne judges of the Queen's Bench, Common Pleas and Exchequer (sect. 8.) Court of Probate,-which last, however, is to be judge in ordinary, and even when sitting alone, may exercise in general the full powers and authority of the court (d). In the consideration of the subject now before us, we shall, in the first place, inquire how marriage may be contracted or made: secondly, take a view of the legal effects and consequences of marriage: and, lastly, treat of the manner of its dissolution. I. First, then, as to the manner in which this relation is formed, it may be observed generally, that the law considers marriage in the light of a contract; and applies to it, with some exceptions, the ordinary principles which attach to contract in general. [In general all persons are able to enter into marriage, unless they labour under some particular disabilities or incapacities. What those are, it will be here our business to inquire.] Now these disabilities are of two sorts; first, such as are canonical; secondly, such as are municipal or civil. Canonical disabilities, (so called from their having formerly fallen under the primary cognizance of the Ecclesiastical Courts,) in our law make the marriage only voidable by a judicial sentence, not ipso facto void (e); of which nature is an inability, at the time of the marriage, to procreate children (ƒ). Of this nature also was the disability once recognized of a pre-contract to another person (g). But by 32 Hen. VIII. c. 38, it is provided, that all marriages contracted and solemnized in the face of the Church shall be indissoluble, notwithstanding any pre-contract not con (d) 20 & 21 Vict. c. 85, s. 9. There are several exceptions however, and among them petitions either for a dissolution or for sentence of nullity of marriage, which must be determined by three or more judges of the court, including the judge of the Court of Probate (sect. 10). (e) 1 Bl. Com. 434; 1 Roll. Ab. 357. (f) 1 Bl. Com. ubi sup. ; 1 Roll Ab. 360; Bury's case, 5 Rep. 98; Morris v. Webber, Moor. 225; 2 Leon. 169; Dy. 179 a, pl. 40. (g) 1 Bl. Com. 434. summated; and though this branch of the statute was repealed by 2 & 3 Edw. VI. c. 23, yet as by the modern Act of 4 Geo. IV. c. 76, s. 27, it is enacted (as it had before been by 26 Geo. II. c. 33), that in no case shall any proceedings be had in any Ecclesiastical Court to compel a celebration of marriage by reason of any contract, it has become an established opinion that this provision of the statute of Hen. VIII. is impliedly revived and extended, and the impediment of pre-contract wholly abolished (g). As to any canonical disability, it is further to be understood that it will not avail to avoid the marriage unless both an actual sentence to that effect be given, and it be given during the life of the parties; for our law will not allow the marriage to be called in question, in such cases, after the death of either (h). As to civil disabilities, it may be laid down generally, and subject only to exception in the case of disability for want of age, that [they make the contract void ab initio, and not merely voidable; not that they dissolve a contract already formed, but they render the 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. 1. The first of these legal disabilities is a prior marriage, and having another husband or wife living: in which case, besides the penalties consequent upon it as a felony (i), (g) See 1 Bl. Com. 435; Bac. Ab. Marriage (E), Co. Litt. by Harg. 79 b, n. (4). (h) The courts of common law would not suffer the spiritual courts (while they had jurisdiction) to declare, after the death of the parties, their marriage to be void on the ground of a canonical disability. (1 Bl. Com. 434; Co. Litt. 33 a; Bury's case, 5 Rep. 98; 1 Roll. Ab. 367; Harris v. Hicks, Salk. 548); and it would seem therefore that the new Court for Divorce and Matrimonial Causes would refuse to declare a marriage to be void under those circumstances. (i) On this subject, vide post, bk. VI. c. XII. Index, tit. Bigamy. |