wards others on behalf of his ſervant; and what a ſervant may do on behalf of his maſter.
And, firſt, the maſter may maintain, that is, abet and aſſiſt his ſervant in any action at law againſt a ſtranger: whereas, in general, it is an offence againſt public juſtice to encourage ſuits and animoſities, by helping to bear the expenſe of them, and is called in law maintenance[1]. A maſter alſo may bring an action againſt any man for beating or maiming his ſervant; but in ſuch caſe he muſt aſſign, as a ſpecial reaſon for ſo doing, his own damage by the loſs of his ſervice; and this loſs muſt be proved upon the trial[2]. A maſter likewiſe may juſtify an aſſault in defence of his ſervant, and a ſervant in defence of his maſter[3]: the maſter, becauſe he has an intereſt in his ſervant, not to be deprived of his ſervice; the ſervant, becauſe it is part of his duty, for which he receives his wages, to ſtand by and defend his maſter[4]. Alſo if any perſon do hire or retain my ſervant, being in my ſervice, for which the ſervant departeth from me and goeth to ſerve the other, I may have an action for damages againſt both the new maſter and the ſervant, or either of them: but if the new maſter did not know that he is my ſervant, no action lies; unleſs he afterwards refuſe to reſtore him upon information and demand[5]. The reaſon and foundation upon which all this doctrine is built, ſeem to be the property that every man has in the ſervice of his domeſtics; acquired by the contract of hiring, and purchaſed by giving them wages.
As for thoſe things which a ſervant may do on behalf of his maſter, they ſeem all to proceed upon this principle, that the maſter is anſwerable for the act of his ſervant, if done by his command, either expreſſly given, or implied: nam qui facit per alium, facit per ſe[6]. Therefore, if the ſervant commit a treſpaſs
