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a contract, a similar principle applies; the master is bound not merely by the acts of his servant which he has authorised, but by those within the scope of his apparent authority. But he is not bound by those which were not authorised by him, nor within the scope of the authority which the servant appears to have. [Thus, if I pay money to a gentleman's servant not usually employed to receive money for his master, and such servant embezzles it, I must pay the money over again to the servant's master ; and 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 my servant upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all the servant takes up ; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority (6).] So it has been held, that the servant of a horse dealer employed to sell a horse can bind his master by a warranty as to the soundness of the horse (c); but the servant of a private owner employed on a single occasion for the like purpose cannot do so (d).

A servant is not, in general, himself personally liable in respect of contracts entered into by him in the capacity of servant, e.y., 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. And a servant cannot for an act of negligence in the execution of a contract be sued by one who was dealing at the time with the master ; so that if a parcel be mislaid by a stage

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coachman, the owner of the coach with whom the contract of carriage was made is liable to the sender, but not the coachman himself (e). But if the servant commit a crime, he will himself be criminally liable ; and if he commits a tort, however innocently, in the course of his employment, he may be sued for damages (s), either separately from the master, or, where the master also is liable, jointly with him (f).

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CHAPTER II.

OF HUSBAND AND WIFE.

As regards the relation of husband and wife it is proper to premise, that as, in the Roman Catholic faith, marriage ranks as a sacrament of the Church, so it naturally fell, during the period before the Reformation, under the cognizance of the Ecclesiastical Courts. These courts accordingly acquired jurisdiction in various matters of a matrimonial description, including judicial separation, divorce, alimony, suits for the restitution of conjugal rights, suits causâ jactitationis matrimonii, and suits to compel the celebration of marriages pursuant to contracts of marriage (a). Notwithstanding the reformation in religion, the ecclesiastical jurisdiction remained undisturbed, until, by the Matrimonial Causes Acts, 1857_to 1873 (V), a secular court was constituted under the title of the “ Court of Divorce and Matrimonial Causes,” with jurisdiction over such matters matrimonial as were formerly within the cognizance of the courts ecclesiastical, and with a more extensive jurisdiction. By the Legitimacy Declaration Act, 1858 (c), jurisdiction was given to the new court to entertain applications also for declarations of legitimacy, and for declaration of the validity of the marriages of the applicant's parents or grand-parents, and of the applicant's right to be deemed a natural-born

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subject. The jurisdiction of the Court so established has now, by the Judicature Act, 1873 (d), been transferred to the Probate, Divorce, and Admiralty Division of the High Court of Justice, but with a procedure comparatively unaltered.

In considering the relation of husband and wife, we shall, in the first place, inquire how that relation is contracted ; secondly, its legal effect ; and, thirdly, the mode of its dissolution.

1. The manner in which the relation of husband and wife is contracted.—Marriage (although it is much more than a contract) resembles a contract in so far that the full and free consent of the parties is necessary to its validity. Accordingly, decrees of nullity of marriage have been made in cases where a woman went through the form of marriage under duress, or under such parental influence as to prevent her from being a free agent, and in the belief that the ceremony was merely one of betrothal (e). But a fraud, however gross, has no effect upon the validity of a marriage if it is not such as to exclude an actual consent to the marriage. Thus, where a woman fraudulently concealed from her future husband her pregnancy by another man, the court refused to dissolve the marriage (1).

Moreover, the rules relating to the capacity of persons to marry differ widely from those relating to the capacity to enter into contracts in general. So long as matrimonial causes were under the jurisdiction of the ecclesiastical courts, the legal disabilities which could prevent the formation of a valid marriage were divided into two classes-canonical and civil. No canonical disability would avoid a marriage unless and until an actual sentence to that effect had been given while both parties were living ; and a marriage entered into under a canonical

(d) 36 & 37 Vict. c. 66, ss. 3, 34.

(e) Scott v. Sebright (1886),

12 P. D. 21 ; Ford v. Stier, [1896] P. 1.

(f) Moss v. Joss, [1897] P. 263.

disability was voidable only, and not void, until such sentence (g). On the other hand, the effect of a civil disability was (except in the case of want of age) to render the marriage void ab initio ; and the civil courts would recognise and give effect to such disability in any case where the validity of the marriage was material to the issue, as upon a claim for dower or inheritance, without the sentence of a court having a matrimonial jurisdiction having been pronounced.

This distinction still is in force ; but of the canonical disabilities formerly recognised, one only, namely physica! inability to procreate children (h), now remains. A precontract (i.e., a previous contract to marry a third person), which was formerly a canonical disability, inasmuch as the ecclesiastical courts could order such contract to be performed by the celebration of the marriage, has ceased to be any disability at all since Lord HARDWICKE's Marriage Act of 1753 (), by which it was provided, that no proceedings should be had in any ecclesiastical court to compel the celebration of a marriage by reason of any contract. The disabilities resulting from consanguinity and affinity, which were formerly canonical, were made civil disabilities by the Marriage Act, 1835 (k).

[Disabilities of the civil kind are commonly grouped under these classes, namely, (1) A prior marriage still subsisting ; (2) Insanity. ; (3) Relationship by blood or marriage : and (4) Want of age. Each of these four disabilities will now be considered.

1. The first of them, namely, a prior marriage still subsisting, wants no particular observation, excepting this,

(9) 1 Bl. Com. 434 ; Co. Litt. 33 a; Bury's Case (1598), 5 Rep. 98; 1 Roll. Ab. 360.

(h) 1 Bl. Com. 434 ; see M. & D. (1885), 10 P. D. 75.

(1) 26 Geo. 2, c. 33, s. 13, repealed and re-enacted on this point by the Marriage Act, 1823

(4 Geo. 4, c. 76, s. 27). The disability of pre-contract was removed in certain cases by 32 Hen. 8 (1540), c. 38; but that statute was in this respect repealed by 2 & 3 Edw. 6 (1548), c. 23.

(k) 5 & 6 Will. 4, c. 54.

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