a

If a servant employs another servant to do his business and in doing it, the servant so employed is guilty of an injury, the master is liable. Thus, in Bush v. Steinman, A. contracted with B. to repair a house, and B. contracted. with C. to do the work, and C. contracted with D. to furnish the materials; and the servant of D. brought a quantity of lime to the house, and placed it in the road, by which the plaintiff's carriage was overturned; it was held that A. was answerable for the damage, on the ground that all the sub-contracting parties were in the employment of A. But to render this principle applicable the nature of the business must be such as to require the agency of subordinate persons, and then there is an implied authority to employ such persons.b

for an injury by one to the other. Farwell v. B. & W. Rail-Road, 4 Metcalf, 49.

a1 Boss. & Pull. 404. Randleston v. Murray, 8 Adolp. & Ellis, 109. S. P. See also Burgess v. Gray, 1 Manning Granger & Scott, 578, A. the owner and occupier of premises adjoining the road employed B. to make a drain and the workmen under him placed gravel on the highway, by which C. was injured, and A. was held liable for it. The possessor of fixed property must be responsible for the acts of those he employs. But the principle is not liable to one agent or employee for damages occasioned by the negligence or misconduct of another agent or employee for the relation of master and servant, or principal and agent creates no contract or duty that the servant or agent shall suffer no injury from the negligence of others employed by him in the same business or service. Story on Agency, sect. 453, and the S. Court in Georgia`in Scudder v. Woodbridge, 1 Kelly, 195, limit this rule to free white agents and it is not applicable to slaves. The principal is in that case liable from necessity resulting from interest to the owner and humanity to the slave.

b In Laugher v. Pointer, 5 Barnw. & Cress. 547, the K. B. were equally divided in opinion on the nice and difficult question, whether the owner of a carriage was liable for an injury to the horse of a third person by the negligent driving of the carriage, when the owner had hired the pair of horses of a stable-keeper to draw it for a day, and the owner of the horses had provided the driver. In Querman v. Bennett, 6 M. & W. 499 in the Exchequer 1840 the same question arose, and it was decided that the owner of the carriage was not liable. Mr. Baron Parke observed in this case, that he concurred with the view of the subject taken by Lord Tenterden & Mr. Justice Littledale in the case of Laugher v. Pointer, and

It is said that the master may give moderate corporal correction to his servant, while employed in his service,

tract.

for negligence or misbehavior.a But this power *261 does not grow out of the contract of hiring; and Doctor Taylorb justly questions its lawfulness, for it is not agreeable to the genius and spirit of the conAnd without alluding to seamen in the merchant's service, it may safely be confined to apprentices and menial servants while under age, for then the master is to be considered as standing in loco parentis. It is likewise understood, that a servant may justify a battery in the necessary defence of his master. The books do not. admit of a doubt on this point; but it is questioned whether the master can in like manner justify a battery in defence of his servant. In the case of Leward v. Basely, it was adjudged that he could not, because he had his remedy for his part of the injury by the action per quod servitium amisit. It is, however, hesitatingly admitted in Hawkins, and explicitly by other authorities, that he may; and the weight of argument is on that side. In England, there seems to be a distinction between menial and some other servants, but I know of no legal distinction between menial or domestic and other hired servants; and the better opinion is, that the master is not.

which case as Judge Story observed in his treatise on agency, p. 406, had exhausted the whole learning on the subject.

1 Blacks. Com. 428. 1 Hawk. P. C. b. i. ch. 29, sec. 5; b. i. ch. 60, sec. 23.

b Elements of Civil Law, p. 413. The right is denied in Pennsylvania. Commonwealth v. Baird, 1 Ashmead's Rep. 266.

• 1 Lord Raym. 62. 1 Salk. Rep. 407.

a 2 Rol. Abr. 546. D. 1 Blacks. Com. 429. 1 Hawk. P. C. b. i. ch. 60. sec. 23, 24. Reeve's Domestic Relations, p. 378. In Louisiana, it is expressly declared by law, that a master may justify an assault in defence of his servant, as well as a servant in defence of his master. The right is made to rest, in the one case, upon interest, and in the other upon duty Civil Code of Louisiana, art. 169.

bound to provide even a menial servant with medical attendance and medicines during sickness.a

III. Of apprentices.

Another class of servants are apprentices, who are bound to service for a term of years, to learn some art or trade. The temptations to imposition and abuse to which this contract is liable, have rendered legislative regulations particularly necessary.

*It is declared by the statute law of New-York,b *262 (and which may be taken for a sample, in all essential respects, of the general law in the several states on the subject,c) that infants, if males, under twenty-one, and if unmarried females, under eighteen years of age, may be bound by indenture of their own free will, and by their own act, with the consent of their father, or mother, or guardian, or testamentary executors; or by the overseers of the poor, or two justices, or a judge, as the case may be, to a term of service, as clerk, apprentice, or servant, in any profession, trade or employment, until the age of twenty-one years if a male, or until eighteen years of age if a female, or for a shorter time. In all indentures, by the officers of the city or town, binding poor

■ Sellen v. Norman, 4 Carr. & Payne's N. P. Rep. 80.

b N. Y. Revised Statutes, vol. ii. p. 154, sec. 1, 2. 4.

• Statute of Illinois of 1st June, 1827; of Indiana of Feb. 15th, 1818. though it would seem by the words of the last act, that the infant might bind himself an apprentice of his own free will, without any other consent. Elmer's New-Jersey Digest, 12. 410. R. S. N. J. 1847, p. 370. Purdon's Penn. Dig. 58. Virginia Revised Code, edit. 1814, vol. i. 240. Statutes of Ohio, Chase's edit. vol. iii. 1816. Massachusetts Revised Statutes, 1836. Revised Code of Mississippi, edit. 1822, p. 393. Revised Statutes of Missouri, 1835, p. 66. Revised Statutes of Vermont, 1839, p. 344. Dorsey's Statutory Testamentary Law of Maryland, 1838, p. 30. Some of the statutes are much more provisional than others, and they generally require the apprentice to be taught to read, write, and cypher. In some of the states there seems to be no provision except for binding out poor children and orphans. In Virginia, orphan boys bound apprentices are to be taught common arithmetic, but by the act of 1804, ch. 60, black or mulatto orphans were not to be taught reading, writing, or arithmetic.

children as apprentices or servants, a covenant must be inserted to teach the apprentice to read and write, and if a male, the general rules of arithmetic; and the overseers of the poor are constituted the guardians of every such indented servant.a The age of the infant must be inserted in the indenture, and the consent of the father or guardian must be signified by a certificate at the end of, or endorsed upon, the indenture. For refusal to serve and work, infants are liable to be imprisoned in gaol, until they shall be willing to serve as such apprentices or servants; and also to serve double the time they had wrongfully withdrawn themselves from service; provided the same does not extend beyond three years next after the end of the original term of service. They are also liable to be imprisoned in some house of correction, not exceeding a month, for ill-behaviour or any misdemeanor. Infants coming from beyond sea, may bind themselves to service, until the age of twenty-one, and even beyond it, provided it be to raise money for the payment of their passage, and the term of such service does not exceed one year.d Grievances of the apprentice

or servant, arising from ill-usage on the part of *263 *the master, or grievances of the master arising

from a bad apprentice, are to be redressed in the general sessions of the peace, or by any two justices of

This clause relative to instruction, was first directed in New-York, by the statute of 1788, to be inserted in the indenture, and it was not required by the English statutes. In Connecticut, the officers or proprietors of factories and all manufacturing establishments, are required to have all the children employed therein, whether bound by indenture or otherwise, taught to read and write, and cypher, and made to attend public worship, and to take due care of their morals, and they are made subject to the visitation of the civil authorities in these respects, and are liable to fine and to have the apprentices discharged, if found in default. Statutes of Connecticut, 1838, p. 415.

b New-York Revised Statutes, vol. ii. p. 154, 155. sec. 3. 8. 10; p. 158, sec. 27.

• Ibid. p. 158, 159, sec. 28, 29, 30, 31.

4 N. Y. Revised Statutes, vol. ii. p. 156. sec. 12.

ณ

the peace, who have power to annul the contract, and discharge the apprentice, or imprison him, if he should be in the wrong. It is further specially and justly provided, that no person shall take from any journeyman or apprentice, any contract or agreement, that after his term of service expired he shall not set up his trade, profession, or employment, in any particular place; nor shall any money or other thing be exacted from any journeyman or apprentice, in restraint of the place of exercising his trade.b

The statute of New-York (of which I have given the material provisions) contains the substance of the English statute law on the subject, and the English decisions are mostly applicable. The infant himself must be a party to the indenture, except in the special case of an apprentice who is chargeable as a pauper. The father has no authority under the statute, (and the latter cases say, he has no authority, even at common law,) to bind his infant son an apprentice, without his assent; and the infant cannot be bound by an act merely in pais, and if he be not a party to the deed, he is not bound. It is a settled principle of the English and American law, that the relation of master and apprentice cannot be created, and the corresponding rights and duties of the parent transferred to a master, except by deed. The English

■ Ibid. p. 159. sec. 32.

b Ibid. p. 160. sec. 39, 40.

The King v. Inhabitants of Cromford, 8 East's Rep. 25. The King v. Inhabitants of Arnesby, 3 Barnw. & Ald. 584. In the matter of M'Dowles, 8 Johns. Rep. 328. Stringfield v. Heiskill, 2 Yerger's Tenn. Rep. 546. Pierce v. Messenburg, 4 Leigh's Rep. 493. Harvey v. Owen, 4 Blackf. Ind. Rep. 337. Balch v. Smith, 12 N. H. Rep. 438. In Maryland the father appears to have the discretion to bind out his child as an apprentice, on reasonable terms, without any consent on the part of the child. Dorsey's Statutory Testamentary Law of Maryland, 1838, p. 30.

d Castor v. Aicles, 1 Salk. Rep. 68. King v. Inhabitants of Bow, 4 Maule & Selw. 383. Squire v. Whipple, 1 Vermont Rep. 69. Commonwealth v. Wilbanks, 10 Serg. & Rawle, 416. The statute of 5 Eliz. required the binding to be by indenture.