The Doctor and Student (1518)
Christopher St. Germain
Whether a man shall be bounden by the act or offence of his servant or officer
In the said sum called summa angelica, in the title dominos, 4th paragraph, is asked this question, Whether a man shall be charged for his household? And it is said there, that he shall, when the household offendeth in an office or ministry that the master is the chief officer of, and he hath the work and the profit of the household: for it shall be his default that he would chuse such servants, for he ought to, appoint honest persons. But is said there, that it is to be understood civilly, and not criminally, whereby, as it is said there, he that is a governour is bound for the offence ,of his officers; and that the same is to be holden of a captain, that lie shall be bound for the offence of his squires, and an host for his guest, and such other. Nevertheless it is said there, that certain doctors, there rehearsed, said thereto, that if the office be an open or publick office, as an office of power, or other like, it sufficeth to bring forth him that offended: but it is otherwise if it be not a publick office, but an host or a taverner, or other like. But if the household offend not in the office, the lord is not hound as to the law, but in conscience he is bound if he were in default by not correcting them; for he is bound to correct them both by word and example, and if he find any incorrigible, he is bound to put him away, except that he hath presumptions, that if he do so, he will be the worse, and then he may do that he thinketh best, and he is excused, and else not
for to such persons it is said Error qui non resistitur aprobatur, that is to say, an error that is not resisted is approved. And though divers of the sayings before rehearsed .agree with the law of the realm, yet all do not so and also they that do are to be observed by authority of the law of the realm, and not by the authority alleged in the said paragraph. And therefore I intend to treat somewhat where the master shall be charged by his servant or deputy, or by them that be under him in any office, and where not; and then I intend to touch some other things, where the master after the laws of the realm shall be charged by the act of his servant in other cases not concerning offices, and where not.
First, If a man be committed to ward upon arrearages of accompt, and the keeper of the prison suffereth him to go at large, then an action of debt shall lie against him. And if he be not sufficient, then it lieth against him that committed the keeping of the. prison unto him: and that is by reason of the statute of Westminister 2, cap. It Also if bailiffs of franchises that have return of writs make a false return, the party shall have averment against it, as well of too little issues as of other things, as well as he shall have against the sheriff; but all the punishment shall be only upon the bailiff, and not upon the lord of the franchise: and that doth appear by the statute made in the first year of Edw. III., the fifth chapter. But if an under-sheriff make a return whereupon the sheriff shall be amerced, there the high-sheriff shall be amerced, for the return is made expressly in his name. But if it be a false return whereupon an action of disceit lieth, in that case it may be brought against the under-sheriff. And see thereof the statute that is called statutum de male returnantibus brevia.
Also, if the king’s butler make deputies, he shall answer for his deputies as for himself; as appeareth in the statute made in the twenty-first year of king Edw. III. De prods tionibus, the twenty-first chapter.
Also in the statute that is called statutum scaccarii it is enacted, among other things, That no officer of the exchequer shall put any clerk under him, but such as he will answer for. And forasmuch as the statute is general, it seemeth that he shall answer as well for an untruth in any such clerk as for an oversight.
Also in the fourteenth year of king Edw. III., c. 9, it is enacted, That all gaols shall be adjoined again to the shires, and that the sheriff shall have the keeping of them,, and that the sheriff shall make such under-gardeins for the which they will answer. And nevertheless I suppose that if there be an escape by default of the gaoler, that theking may charge the gaoler, if he will. But it is no doubt but he may charge the sheriff, by reason of this statute, if he will. But if it be a wilful escape in the gaoler, which is felony in him, the sheriff shall not be bound to answer to the felony, ne none other but the gaoler himself, and they that assented to him.
Also, if a man have a sheriffwick, constableship, or bailiwick in fee, whereby he hath the keeping of prisoners, if he let any to replevin that be not replevishable, and thereof be attaint, he shall leese the office, etc. And if it be an under-sheriff, constable, or bailiff, that hath the keeping of the prison, that doth it without knowledge of the lord, he shall have imprisonment by three years, and after shall be ransomed at the king’s will; as appeareth in the statute of West. I, the 15th chapter. And so it appeareth, that in this case, he that is lord of the prison is not bound to answer for the offence of them that have the rule of the prison under him, but that they shall have the punishment themselves for their misdemeanor. Also there is a statute made in the 27th year of king Edw. III., the 19th chapter, that is called the statute of the staple, whereby it is ordained, That no merchant, ne none other man, shall not leese their goods for the trespass, or forfeit of their servants; unless it be by commandment of his master, or that he offend in the office that his master hath put him. in, or else that the master shall be bound to answer for the deed of his servant by the law-merchant, as in some places it is used.
Also it is enacted in the 14th year of king Edw. III., the 10th chapter, That wapentakers and hundreds that be severed from the counties shall be adjoined. again unto them, and that if the sheriff hold them in his own hands, that he shall put in them such bailiffs that have lands sufficient, and those for which he will answer; and that if he let them to form, that they be let to the ancient ferm: but after it is prohibited by the statute of the 23d year of king Hen. VI., the 10th chapter, that no sheriff shall let his bailiwicks nor wapentakes to ferm. And when they be once in the sheriff’s own hands, and the sheriff put in bailiffs, they be but as under-bailiffs to the king, and the sheriff the high-bailiff and they in manner the sheriff’s servants, and put in only by him; and therefore by the said statute of king Edw. III. he shall answer for them, if they offend in their office. But if the sheriff let them to form, then though the sheriff offend the statute in that doing, yet whether he shall be charged for their misdemeanor in the office or not, is a great doubt to some men; for they say that this statute is only to be understood where the bailiwicks be in the sheriff’s hands, but here they he not so, ne the bailiffs be not his servants, but his fermers; and therefore they say, that if the sheriff shall be charged for them, it is by the Common law, and not by the statute aforesaid. Also in the second year of king Henry VI., the 10th chapter, it is enacted, That officers by patent in every court of the king, that by virtue ,of their office have power to make clerks in the said courts shall be charged and sworn to make such clerks under them for whom they will answer. Also the hospitallers and templars be prohibit they shall hold no plea that belongs to the king’s courts, upon pain to yield damages to the party grieved, and to make ransom to the king: that the superiors shall answer for their obediencers, as for their own deed. West. 2, c. 43. Also the serjeant of the catery shall satisfy all the debs, damages, and executions that shall be recovered against any that is purveyor or achator under him, that offend against the statute of 36th of Edw. III., or against the statute of 24th of Hen. VI., in case the purveyor or achator be not sufficient, etc. And the party plaintiff shall have a Scire facias against the said serjeant in this case to have execution, as appeareth in the 24th year of king Henry VI., the first chapter.
Also, if a man be sent to prison upon a statute-merchant by the mayor before whom the recognizance was taken, and the gaoler will not receive him, he shall answer for the debt, if he have wherewith; and if not, then he shall answer that committed the gaol to him, as appeareth in the statute called the Statute-merchant.
And if outragious toll be taken in the town-merchant, if it be the king’s town let to farm, the king shall take the franchise of the market into his hands; and if it be done by the lord of the town the king shall do in like wise: and if it be done by the bailiff, unknowing to the lord, he shall yield again as much as he hath taken, and shall have imprisonment of forty days. And so it appeareth that the lord in this case shall not answer for his bailiff. West. I, c. 3. And in all the cases before rehearsed, where the superior is charged by the default of him that is under him, he in whose default his superior is so charged, is bound in conscience to restore him that is so charged through his default: except the case before rehearsed of the hospitallers, for all that the obediencer hath is the superior’s if he will take it. And therefore what recompense shall be made by the obediencer in that case, is at the will of the superior. And now I intend to show thee some particular cases, where the master after the laws of the realm shall be charged by the act of his servant, bailiff, or deputy, and where not; and so for to make an end of this chapter.
First, For trespass of battery, or wrongful entry into lands or tenements, ne yet for felony or murther, the master shall not be charged for his servant, unless he did it by his commandment.
Also, if a servant borrow money in his master’s name, the. master shall not be charged With it unless it come to his use, and that by his assent. And the same law is, if a servant make a contract in his master’s name, the contract shall not bind his master, unless it were by his master’s commandment, or that it came to the master’s use by his assent. But if a man sends his servant to a fair or market to buy for him certain things, though he command him not to buy them of no man in certain, and the servant doth according, the master shall be charged: but if the servant in that case buy them in his own name, not speaking of his master, the master shall not be charged, unless the things bought come to his use.
Also, if a man send his servant to the market with a thing which he knoweth to be defective, to be sold to a certain man, and he selleth it to him, there an action lieth against the master: but if the master biddeth him not to sell it to any person in certain, but generally to whom he can, and he selleth it according, there lieth no action of deceit against the master.
Also, if the servant keep the master’s fire negligently, whereby his master’s house is burnt, and his neighbour’s also, there an action lieth against the master. But if the servant bear fire negligently in the street, and thereby the house of another is burned, there lieth no action against the master.
Also, if a man desire to lodge with one that is no common hostler, and one that is servant to him that he lodgeth with robbeth his chamber, his master shall not be charged for the robbing; but if he had been a common hostler he should have been charged.
Also, if a man be gardein of a prison wherein is a man that is condemned in a certain sum of money; and another that is in prison for felony, and a servant of the gardein that hath the rule of the prison under him, wilfully letteth them both escape; in this case the gardein shall answer for the debt, and shall pay a fine for the escape of the other, as for a negligent escape, and the servant only shall be put to answer to the felony for the wilful escape.
Also, if a man make another his general receiver, and that receiver receiveth money of a creditor of his master, and maketh him acquittance, and after payeth not his master; yet that payment dischargeth the creditor: but if the creditor hath taken an acquittance of him without paying him his money, that acquittance only were no bar to the master, unless he made him receiver by writing, and gave him authority to make acquittances, and then the authority must be shewed. And if the creditor in such case, by agreement between the receiver and him, deliver to the receiver an horse, or another thing in recompence of the debt, that delivery dischargeth not the creditor, unless it be delivered over unto the master, and he agree to it. For the receiver hath no such power to make no such commutation, but his master give him special commandment thereto.
Also, if a servant shew a creditor of his master, that his master sent him for his money, and he payeth it unto him; that payment dischargeth him not, if the master did not send him for it indeed, except that it came after unto the use of the master by his assent.
Also, if a man make a bailiff of a manor, and after the lord of whom the manor is holden grant the seigniory to another, and the bailiff after payeth the rent to the grantee; that payment of the rent countervaileth no attornment, though it were by fine, ne shall not bind his master, till he attorn himself: but if the lord of whom the land is holden dies seised of the seigniory, and the bailiff payeth. the rent to the heir of the lord, that is a good seisin to the heir, though the bailiff had no commandment of his master to pay it: for it belongeth to his office to pay rent-service, but not rent-charge, as some men say.
Also an encroachment by the bailiff shall not bind the master in avowry, if he had no commandment of the master to pay it. Also, if there be lord, mesne and tenant, and the tenant holdeth of the mesne as of his manor of D, the mesne maketh a bailiff, and after the tenant maketh a feoffment, the feoffee tendeth notice to the bailiff, and he accepteth is rent with arrearages; this notice shall not bind the lord, ne compel him to alter his avowry: for the office of a bailiff stretcheth not thereto, but he must have therein a special commandment of his master. Also, if a servant ride upon his master’s horse to do an errand for his master, into a town that hath authority to make attachments of goods upon plaints of debt, etc., and there, upon a plaint of debt made against the servant, the master’s horse is attached by the officers, thinking that the horse were his own, and, because the servant appeareth not, the officers seise the horse as forfeit; in this case the lord shall have an action of trespass against the officers, and this attachment for the debt of his servant shall not bind him, etc. But that an host or keeper of a tavern shall be charged for their guests, unless it be done by their assent and commandment, I do not remember that I have read it in the laws of England.