nity, as well as of the minors, that their realty, especially when unimproved, should be tied up from sale until their majority; but still it is rather a departure from the general policy of the law relating to minors, which is, to leave everything as far as possible in the condition in which it happens to be, until they become of age to change it. This power to sell real estate is extended by our statute to guardians of minors residing out of the State, upon their giving additional security, if required.

LECTURE XVII.

MASTER AND SERVANT. (a)

§ 114. Apprentices. The title of master and servant, at the head of a lecture, does not sound very harmoniously to republican ears. And in fact servitude, strictly so called, does not exist in this country, except in the case of slaves; nor in this State at all. But the legal relation of master and servant must exist, to a greater or less extent, wherever civilization furnishes work to be done, and the difference of condition makes some persons employers, and others laborers. In fact, we understand by the relation of master and servant, nothing more or less than that of employer and employed. It is, therefore, a relation created by contract, express or implied, and might properly be treated under the head of contracts; but custom has placed it among the personal relations, and I shall so treat it. Blackstone divides servants into four classes; namely, menial servants, common laborers, apprentices, and agents. But there is no occasion here for treating separately of the first two; because we have no provisions, as in England, relating to the duration of the contract, the amount of wages, the time of laboring each day, and the like; all such matters here being settled between the employer and the employed, as matters of contract. And if there be no express contract, the law implies one, on the part of the employer, to pay a reasonable compensation, and on the part of the employed, to possess and use reasonable skill and diligence. We have, therefore, but two classes of servants to speak of; namely, apprentices and agents. With respect to apprentices, our law is chiefly statutory. Males can only be bound until twenty-one, and females only until eighteen. Beyond these ages, they may bind themselves for any length of time, if they enter freely into the indenture, and there be a bona fide consideration for the binding. Our statute in relation to apprentices includes "clerks, apprentices, and servants," and places them all on the same footing. The kind

(a) See 2 Kent, Com. lec. 37, 41; 1 Black. Com. ch. 14; 1 Swift, ch. 8. Smith,

on Master and Servant.

of occupation, therefore, is of no consequence; the words being broad enough to include every description of service. The mode of binding is by indenture, and the time is during minority. The minor is not, as at common law, required to be a party to the indenture. (a) One of the parties must, of course, be the master. The other depends upon circumstances. It is the father, if living; if not, the mother or guardian; and if the guardian, the indenture must be approved by the court of common pleas. If, however, the minor be a destitute orphan, or if his parents do not provide for hin, the township trustees have authority to bind him. The term apprentice usually implies one bound for the learning of some particular trade; but I shall use it to signify any one bound according to the statute. The substance of the indenture is provided for in the statute. (b) It must in all cases specify the age and term of service. If for a white person, it must stipulate for the education of the apprentice in reading, writing, and arithmetic; unless the binding be for less than four years. In all cases, the master must engage to give the apprentice, at the expiration of the time, a new Bible and two suits of clothes. If there be any money to be paid by the master, it must be secured to the minor, and not to his parent or guardian. Nothing is said of the covenants on the other side; except that the parent, guardian, or trustees are not to be personally bound thereby, unless they expressly stipulate so to be. The master must have the indenture recorded by the township clerk within three months. On failure so to do, the minor will be discharged but the master will still remain liable on his covenants. Having thus provided by whom and how the binding shall be made, the statute proceeds to fix a tribunal for settling disputes. The entire jurisdiction is given to justices of the peace, without appeal. They have power, on complaint of either party, to summon the other before them, and if they can effect a reconciliation, to make such order as justice requires; if not, to summon a jury of five persons to investigate the facts. If the minor be the aggrieved

(a) In those States where the minor's consent must be expressed in the indenture, there must be apt words to express it in the instrument, and his simple signature is not sufficient. Harper v. Gilbert, 5 Cushing, 417. A contract of apprenticeship, not conformable to the statute, is voidable only by the apprentice, and cannot be avoided for that reason by any other person. Page v. Marsh, 36 N. H. 305. Doane v. Covel, 56 Maine, 527.

of

(b) Form of indenture. This indenture of apprenticeship, between on the one part, and

aged

years, on the

father

of the other part, witnesseth: That the said is hereby bound as an apprentice under the said from the date hereof until the to learn the trade and occupation of a ; and is faithfully to serve the said and correctly to demean himself during the term of his apprenticeship. And the said does hereby covenant that he will teach the said the said trade and occupation of a and will provide him, during said apprenticeship, with board, lodging, medicine, washing, clothing, and all other necessaries suitable for an apprentice; and will teach, or cause him to be taught, reading and writing, and so much of arithmetic as will include the single rule of three; and at the expiration of said term of service, will furnish the said with a new B ble and two new suits of common wearing apparel, and will pay him one hundred dollars in money. In testimony whereof, the parties have hereunto set their hands and seals this

party, the complaint may be made by the parent, guardian, trustees, or next friend. If the jury find that the master has broken any of his covenants, or has neglected to furnish necessary food or clothing, whether agreed for or not, or has been guilty of any kind of cruelty, they assess the damages, and the indenture is thenceforth annulled. If the complaint be by the master, for the misbehavior of the minor, the jury determine whether the master ought to be discharged or not from the indenture. If so, or if the apprentice run away, the master has his action for damages against the minor. He also has his action against any person who shall entice the apprentice away, or harbor him.

Other Incidents of Apprenticeship. (a) I have thus far followed the statute. But statutes of a similar character have existed elsewhere for a long period, and many points have been decided respecting them. 1. This statute embraces only the case of minors bound by indenture, according to its provisions; but it does not, like the English statute, make void all other contracts for the binding of minors; such contracts, therefore, may still be good, on the common principles of law. 2. At common law the minor was not bound unless he became a party to the indenture; but as the statute does not require his assent, the binding here will be valid without it. 3. Apprentices, under the statute, are not entitled to wages, unless expressly stipulated for; that is, no recovery can be had upon an implied contract for work and labor, as in the case of other servants. 4. The death of the master discharges the apprentice entirely from the indenture, on the ground that the contract is strictly fiduciary. The confidence reposed in the master does not extend to his representatives; and the apprentice is under no obligation to them. But it has been held, on the other hand, that the death of the master does not discharge his representatives from the covenant to support the apprentice, although he is no longer bound. This doctrine, however, is so utterly destitute of reason, that I should presume these ancient decisions would not now be sustained. 5. The weight of authority as well as reason is in favor of the doctrine, that the master cannot assign his interest. in the indenture to another, because the contract is founded on personal confidence. It has, however, been held, that although the assignee cannot enforce the indenture against the apprentice, yet the assignment is so far valid that he may maintain an action upon it against the assignor. 6. As the rights and powers created by the indenture are derived from the statute, they can be enforced only where the statute is operative. They cease, therefore, when the master removes out of the jurisdiction, unless express provision is made for such removal, or it is required by the nature

(a) Day Everett, 7 Mass. 145; U. S. v. Bainbridge, 1 Mason, 71; The King v. Laindon, 8 Term Rep 379; 1 Salkeld, 66, tit. Apprentice; Thompson Tiller, 2 Strange, 1266; Hall v. Gardner, 1 Mass. 172; Davis v. Coburn, 8 id. 299; Nickerson v. Homard, 19 Johns. 113; James v. Le Roy, 6 id. 274; Ex parte Lansdown, 5 East, 39. A contract for servitude with no limitation but that of time, is against the policy of the law, and void. Parsons v. Trask, 7 Gray, 473.

of service. 7. The master is entitled to the earnings of the apprentice under all circumstances. And it makes no difference in this respect whether the money be earned in the master's line of business or not; whether it was by his consent or not; whether the employer knew him to be an apprentice or not; or even whether he has paid the apprentice. An action will always lie by the master against the employer to recover the whole. The ground assumed is, that the master has contracted for his time, and is entitled to its avails. 8. Where a minor is wrongfully detained as an apprentice, under pretence of an indenture, he may resort to the writ of habeas corpus to procure his release. 9. There is nothing in this country analogous to that principle of the English law, which gives to persons who have served a regular apprenticeship at any trade the exclusive right of practising it. 10. The power of the master over the person of the apprentice is similar to that of the parent or guardian. If necessary, he may correct him with moderation, but nothing more.

§ 115. Agents. (a) The relation of principal and agent takes place wherever one person is authorized to act for and in the name of another. It is a general rule, that whatever any person has original authority to do in his own name and right, he can authorize another to do for him as his agent; and that where power is given to accomplish any object, it includes all the means proper for that object. But there is a maxim, delegatus non potest delegare, which prohibits delegated power from being again delegated, without special authority from the original source; therefore an agent cannot create a sub-agent, without special permission. (b) And, on the other hand, any person may act as agent whom the principal chooses to appoint. So comprehensive is this rule, that married women and infants, who are incapable of acting in their own behalf, may act as agents; for the appointment takes away the legal insufficiency, and enables them to bind their principals, when they could not bind themselves. (c) The mode of appointment depends upon the nature of the agency. By a technical rule of law, the evidence of appointment must be of as high a nature as the thing to be done. Thus, to execute a writing under seal, the appointment must be under seal. (d) We have a statutory

(a) See 2 Kent, Com. lec. 41, 61; and the treatises on Agency, by Story, Livermore, and Paley.

(b) Combe's Case, 9 Co. 75; Powell r. Tuttle, 3 Comst. 396. Bocock v. Pavey, 8 Ohio State, 270. An authority to appoint a sub-agent may be implied from usage. Moon v. Guardians of Whitney Union, Bing. N. C. 814. An agent to buy goods may employ a broker to make the purchases, if that is the usual custom of the market; and in such case, if the broker employed is competent and suitable, will not be liable for his errors or misconduct. Darling v. Stanwood, 14 Allen, 504.

(c) See post, § 176, notes. A bank in one State, receiving for collection a draft payable in another, and forwarding it to its correspondent, another bank, in the State where it is payable, is responsible for the fraud or negligence of its correspondent. Reeves v. State Bank of Ohio, 8 Ohio State, 465. There are authorities which hold the bank responsible only for due care and diligence in selecting its correspondent. 1 Parsons's Cont. 586, 587, and cases cited.

(d) Stetson v. Patten, 2 Greenl. 358.

provision requiring a power of attorney for the conveyance of realty, to be executed with all the formalities of the conveyance itself. Our statute of frauds requires the authority of agents to do certain acts therein named to be in writing. And we have another provision, requiring attorneys at law to have a written authority to confess judgment for their clients. (a) But with these exceptions, the agency may be created orally, or may be implied from circumstances, or may be subsequently adopted, when there was no previous appointment by word or act. (b) These remarks must be understood to apply to legal and not political acts. person cannot depute another to vote, or discharge an office for him; except in some few instances, where the law specially provides for the appointment of deputies. But we have seen that the members of corporations may delegate the power of voting by proxy. The law has a variety of special agents, such as executors, administrators, guardians, trustees, masters in chancery, receivers, collectors, sheriffs, and the like, which are elsewhere spoken of. Commerce also gives rise to a variety of agents, the most important of which are factors, brokers, and ship-masters. I name these various kinds of agents, for the purpose of letting you know that they exist; but in the rest of my remarks, I shall merely state the general doctrines which apply equally to all agencies. For more particular details you can consult the various titles and authors above indicated.

§ 116. Their Powers and Duties. The acts of an agent are done in the name and for the benefit of the principal; (c) and the agent can claim no other profit than his wages, or agreed compensation.

(a) Form of a power of attorney to transact ordinary business. Be it known that I hereby constitute and appoint , to be my attorney in fact, with full authority to make all contracts, and do all other acts of a business nature, except the conveyance of real estate, as effectually as I could myself do, if personally present; and if need be, to substitute another attorney in his place with equal powers; and I do hereby ratify and confirm all acts lawfully done in pursuance of this power. Witness my signature and seal, &c.

is indebted to

Power to confess judgment. Be it known, that whereas in the sum of $, for state nature of indebtedness]; now, therefore, the said does hereby authorize or any other attorney at law, to appear in [describe the court, or say any court of record], at any regular term of said court [or specify some term], and waive the issuing and serving of process, and confess a judg ment in favor of the said -, against the said, for the sum of $, with interests and costs; and thereupon to release all error, and waive the right of appeal. Witness the hand and seal of said, &c.

If the person giving this power be under arrest at the time, some attorney at law, acting for him, must attest the power as a witness.

117.

(b) A power of attorney in fact is not presumed. Pillsbury v. Dugan, 9 Ohio,

(c) Where an agent, A., signs for his principal, B., the most correct form is to sign B. by A." It was for some time doubted whether the signature "A. for B." was a good execution of the contract by the principal, though it is now generally settled that it is. But the fact of the agency must clearly appear upon the face of the contract. A note running, "We, or either of us, as directors of" a corporation, "promise to pay," &c., signed by certain persons, without any official designation added to their names, binds the signers individually. Titus v. Kyle, 10 Ohio State, 444. As to the proper mode of signing instruments for corporations, see p. 235, note (b).