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

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 Quarman v. Burnett, 6 Mees. & 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 and Mr. Justice Littledale, in the case of Laugher v. Pointer, and which case, as Judge Story observed, in his Treatise on Agency, sec. 453, b. note, had exhausted the whole learning on the subject.5

Co. 19 Conn. 566, that the plaintiff is not prevented from recovering, unless he might, by the use of ordinary care, have avoided the consequences of the defendant's negligence. If by ordinary care he might have avoided injury, he is the author of his own injury. See, also, Davies v. Mann, 10 Mees. & W. 546. And this doctrine is at present maintained in more stringent terms. In Wilds v. Hudson R. R. 24 N. Y. 430, it is held that the least negligence of the plaintiff, contributing to produce the injury, will suffice to defeat his right of action for negligence against the defendant.

The difficulty in deciding this class of cases consists in determining who is to be regarded as the master of the wrong-doer; whether he is the master who directs the work to be done, or he who, having engaged to do the work, sends his own servant to fulfil the engagement. In the language of Parke B., (Quarman v. Burnett,) "that person is undoubtedly liable, who stands in the relation of master to the wrong-doer." The later cases have adhered to the opinion of Mr. Justice Littledale, in Laugher v. Pointer, and hold that he is the responsible party who directs his servant to fulfil his engagement, and not he who only engages a person exercising a distinct calling, by the misconduct of whose servant the injury is caused. Milligan v. Wedge, 12 Ad. & El. 737. Rapson v. Cubitt, 9 Mees. & W. 710. Allen v. Hayward, 7 Ad. & El. N. S. 960. Rich v. Basterfield, 4 Man. G. & Scott, 801. Reedie v. N. W. Railway Co. (Excheq'r) 13 Jurist, 659, 1849. S. C. Law Reporter, April, 1850, p. 626. Weyant v. N. Y. & Harlem R. Co. 3 Duer (N.Y.) 360.

An exception to the general rule was suggested in some of the earlier English cases, in respect to injuries caused by the negligent management of real property; and it was declared that the owner must take care that his property was so used that others are not injured, whether his property was managed by his own servants, or by contractors, or their servants. (Per Littledale, Justice, in Laugher v. Pointer, citing Bush v. Steinman, supra. Sly v. Edgley, 6 Esp. 6. Leslie v. Pounds, 4 Taunt. 649.)

But this distinction, after having been questioned in Milligan v. Wedge, and Allen v. Hayward, has been expressly overruled in the case of Reedie v. N. W. Railway Co. It was there held, that the case of Bush v. Steinman was only sustainable, if at all, on the ground of nuisance; and see Todd v. Flight, 9 C. B. (N. S.) 377.

On the point whether the owner of real property is responsible for injuries occasioned by others not standing in the relation of servants to him, see Rich v. Basterfield, supra. King v. Pedley, 1 Ad. & El. 822. S. C. 3 Nev. & M. 627. King v. Moore, 3 Ad. & El. 184. Barnes v. Ward, Law Journal, C. P. 195, July, 1850. Fish v. Dodge, 4 Denio, 311. Mayor of N. Y. v. Bailey, 2 Denio, 483, per Walworth Ch. Overton v. Freeman, 8 E. L. & Eq. 479. Gilbert v. Beach, 4 Duer (N. Y.) 495. Congreve v. Morgan, 5 Duer (N. Y.) 495. Carman v. R. R. Co. 4 Ohio (N. S.) 399. Althorf v. Wolfe, 22 N. Y. 355.

The doctrine of Bush v. Steinman, is not now recognized in England. Overton v. Freeman, 8 E. L. & Eq. 479. Reedie v. N. W. R. Co. 4 Exch. 256. Peachey v. Rowland, 16 E. L. & Eq. 442. It has been rejected in New York, Blake v. Ferris, 1 Seld. (N. Y.) 48; and see

or misbehavior. (e) But this power does not grow out * of the contract of hiring; and Doctor Taylor (a) justly *261 questions its lawfulness, for it is not agreeable to the genius and spirit of the contract. And without alluding to seamen in the merchants' 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, (b) 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. (c) 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 bound

(e) 1 Blacks. Com. 428. 1 Hawk. P. &. b. 1, ch. 29, sec. 5; b. 1, ch. 60, sec. 23. (a) Elements of Civil Law, p. 413. The right is denied in Pennsylvania. Commonwealth v. Baird, 1 Ashmead, 267.

(b) 1 Lord Raym. 62. 1 Salk. 407.

(c) 2 Roll. Abr. 546, D. 1 Blacks. Com. 429. Hawk. P. C. b. 1, 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.

Stevens v. Armstrong, 2 Id. 435; in Massachusetts, Hilliard v. Richardson, 3.Gray, 349, where the court reviews the cases and examines the authority of Bush v. Steinman itself; and in Michigan, DeForrest v. Wright, 2 Mich. 368. It is sustained in Wiswall v. Brinson, 10 Ired. (N. C.) 554; and in Stone v. Cheshire R. Corp. 19 N. Hamp. 427.

For further illustration of the question who is the responsible master, see Sproul v. Hemmingway, 14 Pick. 1. Stone v. Codman, 15 Id, 297. Ross v. The Mayor of Madison, 1 Smith (Ind.) 98. McCleary v. Kent, 3 Duer, 27. Sadler v. Henlock, 30 E. L. & Eq. 167. Steel v. South-eastern R. Co. 32 Id. 366. Scott v. Mayor, &c., 38 Id. 477. McGatrick v. Wason, 4 Ohio (N. S.) 560. Gourdier v. Cormack, 2 E. D. Smith (N. Y.) 254. Cincinnati v. Stone, 5 Ohio (N. S.) 38. Crocker v. Calvert, 8 Ind. 127. Patten v. Rea, 40 E. L. & Eq. 329. Mayor of Balt. v. Pennington, 15 Md. 12.

An owner of land made an excavation therein, within two feet of a public street, and used no precaution against the danger of falling into it. A person in the night-time fell into the excavation, and was injured, and it was held that the owner was not liable. Howland v. Vincent, 10 Metcalf, 371. This case can hardly be reconciled with the case of Barnes v. Ward, cited supra.

to provide even a menial servant with medical attendance and medicines during sickness." (d)

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.1

* 262

*It is declared, by the statute law of New York, (a) (and which may be taken for a sample, in all essential respects, of the general law in the several states on the subject,) (b) 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; 1 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

(d) Sellen v. Norman, 4 Carr. & Pa. N. P. 80.

(a) N. Y. Revised Statutes, vol. ii. p. 154, sec. 1, 2, 4.

(b) Statute of Illinois, of 1st of June, 1827; of Indiana, of Feb. 15, 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. p. 240. Statutes of Ohio, Chase's edit. vol. iii. 1876. Massachusetts Revised Statutes, 1836. Revised Code of Mississippi, edit. 1822, p. 393. Revised Statutes of Missouri, 1835, p. 66. Revised Satutes 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 cipher. 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.

1 By a recent Act in Maine, ten hours' labor, in the absence of any special agreement, is made a legal day's work; but the Act does not extend to monthly labor, or to agricultural employments. Acts of Maine, 1849, ch. 83. There is a similar provision in N. Hampshire. Laws of N. Hamp. 1847, ch. 488.

1 In New York, Laws of 1862, ch. 172, sec. 6, p. 345, the father cannot bind his child as an apprentice, without the written consent of its mother, if living.

of the city or town, binding poor 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. (c) 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 indorsed upon, the indenture. (d) For refusal to serve and work, infants are liable to be imprisoned in jail 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-behavior or any misdemeanor. (e) 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. (f) Grievances of the appren

tice or servant, arising from ill-usage on the part of the * 263 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 the peace, who have power to annul the contract, and discharge the apprentice, or imprison him, if he should be in the wrong (a) It is further specially

(c) 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 cipher, 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.

(d) New York Revised Statutes, vol. ii. pp. 154, 155, sec. 3, 8, 10; p. 158, sec. 27 (e) Ibid. pp. 158, 159, sec. 28, 29, 30, 31.

(f) N. Y. Revised Statutes, vol. ii. p. 156, sec. 12.

(a) Ibid. p. 159, sec. 32.

1 Courts of equity have no special jurisdiction over the relation of apprentice and master. They will not decree specific performance of indentures of apprenticeship, nor order them to be cancelled for the breach of their provisions. Webb v. England, 29 Beavan, 44, overruling Therman v. Abell, 2 Vern. 64, and Richards v. Whitney, 1 Spence Eq. Jur. 628, and following Argles v. Heaseman, 1 Atk. 518.

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. (c) 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. (d)2 The English statute law as to binding out minors as apprentices, to learn some useful *264 art, trade, or calling, has probably been very generally

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

(c) The King v. Inhabitants of Cromford, 8 East, 25. The King v. Inhabitants of Arnesby, 3 Barn. & Ald. 584. In the matter of M'Dowles, 8 Johns. 328. Stringfield v. Heiskell, 2 Yerg. (Tenn.) 546. Pierce v. Messenburgh, 4 Leigh, 493. Harney v. Owen, 4 Blackf. (Ind.) 337. Balch v. Smith, 12 N. Hamp. 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. 68. Squire v. Whipple, 1 Vermont, 69. The statute of 5 Eliz. required the

King v. Inhabitants of Bow, 4 Maule & Selw. 383. Commonwealth v. Wilbanks, 10 Serg. & Rawle, 416. binding to be by indenture.

2 See Peters v. Lord, 18 Conn. 337. The father's contract in the indentures, whether they are so executed as to bind the infant or not, will bind the father. Matter of McDowle, 8 Johns. 328. Fowler v. Hollenbeck, 9 Barb. (N. Y.) 309. Van Dorn v. Young, 13 Barb. (N. Y.) 286. The indentures will not be rendered invalid by a failure to specify the trade, employment, r profession in which the infant is to be instructed. Fowler v. Hollenbeck, 9 Barb. (N. Y.) 309. Though the indentures be void for informality, yet if the parties have lived together as master and servant, neither party can have a claim against the other beyond the condition of the indentures. Maltby v. Harwood, 12 Barb. (N.Y.) 473. Where the relation is constituted under Buch circumstances, the master may probably maintain an action for enticing away the person serving him, but it must be founded on the relation of master and servant, and not of master and apprentice. Cox v. Muncey, 6 C. B. (N. S.) 375.