If a ſervant, laſtly, by his negligence does any damage to a ſtranger, the maſter ſhall anſwer for his neglect: if a ſmith's ſervant lames a horſe while he is ſhoing him, an action lies againſt the maſter, and not againſt the ſervant. But in theſe caſes the damage muſt be done, while he is actually employed in the maſter's ſervice; otherwiſe the ſervant ſhall anſwer for his own miſbehaviour. Upon this principle, by the common law[1], if a ſervant kept his maſter's fire negligently, ſo that his neighbour's houſe was burned down thereby, an action lay againſt the maſter; becauſe this negligence happened in his ſervice: otherwiſe, if the ſervant, going along the ſtreet with a torch, by negligence ſets fire to a houſe; for there he is not in his maſter's immediate ſervice, and muſt himſelf anſwer the damage perſonally. But now the common law is, in the former caſe, altered by ſtatute 6 Ann. c. 3. which ordains that no action ſhall be maintained againſt any, in whoſe houſe or chamber any fire ſhall accidentally begin; for their own loſs is ſufficient puniſhment for their own or their ſervants' careleſſneſs. But if ſuch fire happens through negligence of any ſervant (whoſe loſs is commonly very little) ſuch ſervant ſhall forfeit 100𝑙, to be diſtributed among the ſufferers; and, in default of payment, ſhall be committed to ſome workhouſe and there kept to hard labour for eighteen months[2]. A maſter is, laſtly, chargeable if any of his family layeth or caſteth any thing out of his houſe into the ſtreet or common highway, to the damage of any individual, or the common nuſance of his majeſty's liege people[3]: for the maſter hath the ſuperintendance and charge of all his houſhold. And this alſo agrees with the civil law[4]; which holds, that the pater familias, in this and ſimilar caſes, "ob alterius culpam tenetur, ſive ſervi, ſive liberi."
Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/447
Ch. 14.
of Persons.
431
We
