t; 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[a]. A master
likewise may justify an assault in defence of his servant, and a
servant in defence of his master[b]: 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[c]. 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[d]. 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.

[Footnote z: 2 Roll. Abr. 115.]

[Footnote a: 9 Rep. 113.]

[Footnote b: 2 Roll. Abr. 546.]

[Footnote c: In like manner, by the laws of king Alfred, c. 38. a
servant was allowed to fight for his master, a parent for his child,
and a husband or father for the chastity of his wife or daughter.]

[Footnote d: F.N.B. 167, 168.]

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_[e]. Therefore, if the servant commit a trespass 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[f]: 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[g]: for, although
the master did not expressly order the servant to sell it to that
person in particular, yet his per