by the command or encouragement of his maſter, the maſter ſhall be guilty of it: not that the ſervant is excuſed, for he is only to obey his maſter in matters that are honeſt and lawful. If an innkeeper's ſervants rob his gueſts, the maſter is bound to reſtitution[1]: for as there is a confidence repoſed in him, that he will take care to provide honeſt ſervants, his negligence is a kind of implied conſent to the robbery; nam, qui non prohibet, cum prohibere poſſit, jubet. So likewiſe if the drawer at a tavern ſells a man bad wine, whereby his health is injured, he may bring an action againſt the maſter[2]: for, although the maſter did not expreſſly order the ſervant to ſell it to that perſon in particular, yet his permitting him to draw and ſell it at all is impliedly a general command.
In the ſame manner, whatever a ſervant is permitted to do in the uſual courſe of his buſineſs, is equivalent to a general command. If I pay money to a banker's ſervant, the banker is anſwerable for it: if I pay it to a clergyman's or a phyſician's ſervant, whoſe uſual buſineſs it is not to receive money for his maſter, and he imbezzles it, I muſt pay it over again. If a ſteward lets a leaſe of a farm, without the owner's knowlege, the owner muſt ſtand to the bargain; for this is the ſteward's buſineſs. A wife, a friend, a relation, that uſe to tranſact buſineſs for a man, are quoad hoc his ſervants; and the principal muſt anſwer for their conduct: for the law implies, that they act under a general command; and, without ſuch a doctrine as this, no mutual intercourſe between man and man could ſubſiſt with any tolerable convenience. If I uſually deal with a tradeſman by myſelf, or conſtantly pay him ready money, I am not anſwerable for what my ſervant takes up upon truſt; for here is no implied order to the tradeſman to truſt my ſervant: but if I uſually ſend him upon truſt, or ſometimes on truſt and ſometimes with ready money, I am anſwerable for all he takes up; for the tradeſman cannot poſſibly diſtinguiſh when he comes by my order, and when upon his own authority[3].
