Chapter VIII: Interference with Advantageous Relations (4)

An attempt has been made to bring this case within what is called slander of goods, manufactured and sold by another. See Western Counties Manure Co. _v._ Lawes Chemical Manure Co., L. R. 9 Ex. 218. This implies that the plaintiff was engaged in the business of making and selling directories, and that the defendant made statements disparaging the plaintiff’s business. We think that the declaration does not show that the business of the plaintiff, in publishing a new directory every two years, was a continuous business. The directory to be published in 1885 was to be a new compilation and publication. From the nature of the book, perhaps this could not well be otherwise. New subscribers and new advertisements were to be obtained. We have been shown no case where it has been held that a false statement that the plaintiff had gone out of business, or sold out his business to the defendant, was an actionable slander of a person in his trade; but upon this we express no opinion. It may be said that such statements tend to injure a man in his business, because they tend to prevent customers from resorting to him for trade, and to injure the value of the good-will of his business. However this may be, the difficulty is in attaching good-will as a valuable thing to the publication every two years of a new directory. Such a directory could be published by anybody. It is perhaps a question of degree whether the publication by the plaintiff had been so frequent and regular that there can be said to be a good-will that would be protected in law. There is no allegation of any continuing contract, express or implied, of subscribing for, or advertising in, the directories, as a publication periodically issued; there is no allegation of any place of business to which customers resorted to purchase directories. Until the plaintiff had entered upon the compilation of the directory for 1885, we do not think that there was any business of publishing a directory for 1885 carried on by the plaintiff, or anything that, for example, could have been sold as a going concern by an assignee in insolvency, if the plaintiff had become an insolvent debtor. The cases upon liability for wrongful interference with the business of another are largely collected in Walker _v._ Cronin; but in that case there was an actual business, with the carrying on of which the defendant wrongfully interfered. The declaration in this case, indeed, alleges that the plaintiff made his preparations for compiling and publishing a directory for 1885, but it does not allege what those preparations were, or that they were anything valuable. The averment that he “has been put to great loss and expense in preparing for said compilation and publication,” near the end of the declaration, appears to be a part of the damages.

The plaintiff cites Swan _v._ Tappan, 5 Cush. 104, but there the declaration was held insufficient, because there was no allegation of special damage. The declaration in the present case cannot well be distinguished in this respect from the declaration in Swan _v._ Tappan, but we do not deem it necessary to reconsider the decision in that case on this point. There, the plaintiff was actually engaged in selling his book, which had already been printed and put upon the market, and the action was the ordinary action for the malicious disparagement of the goods of another, manufactured and kept for sale.

The plaintiff relies upon Benton _v._ Pratt, 2 Wend. 385, which perhaps may be considered as an extreme case. See Randall _v._ Hazelton, 12 All. 412. In Benton _v._ Pratt, Seagraves and Wilson, at Allentown, had orally agreed to purchase of the plaintiff two hundred hogs, at the market price, if delivered within three or four weeks, and they had not been previously supplied; and, “about the time for the delivery,” the plaintiff was proceeding with his drove of hogs to Allentown for the purpose of delivering to them two hundred hogs. The defendant, by his falsehood and deceit, intentionally prevented the performance of this contract, by persuading Seagraves and Wilson that the plaintiff was not intending to drive his hogs to Allentown, whereby they were induced to buy the hogs of the defendant, instead of buying the hogs of the plaintiff, as they otherwise would have done. The court say, that it was “not material whether the contract of the plaintiff with Seagraves and Wilson was binding upon them or not;” but the agreement, if there was an agreement, although not in writing, was an actual offer by Seagraves and Wilson, not revoked, and which they would have performed, and the plaintiff was in the actual possession of the property which Seagraves and Wilson had offered to buy, and was actually proceeding to deliver this property to them, in accordance with their offer.

The fatal objection to the present case is, that it is entirely problematical whether the plaintiff would actually have published a directory if the defendant had not made the fraudulent misrepresentations alleged. The plaintiff abandoned his intention to compile and publish a directory in consequence of the defendant’s acts; but this, upon the principles stated in Bradley _v._ Fuller, 118 Mass. 239, and the cases therein cited, is not sufficient to support an action.

_Judgment affirmed._

GARRET _v._ TAYLOR
IN THE KING’S BENCH, EASTER TERM, 1620.
_Reported in Croke, James, 567._

Action on the case. Whereas he was a Freemason, and used to sell stones, and to make stone buildings, and was possessed of a lease for divers years to come of a stone-pit in Hedington, in the county of Oxford, and digged divers stones there, as well to sell as to build withal; that the defendant, to discredit and to deprive him of the commodity of the said mine, imposed so many and so great threats upon his workmen, and all comers disturbed, threatening to mayhem and vex them with suits if they bought any stones; whereupon they all desisted from buying, and the others from working, &c.

After judgment by _nihil dicit_ for the plaintiff, and damages found by inquisition to fifteen pounds, it was moved in arrest of judgment, that this action lay not; for nothing is alleged but only words, and no act nor insult: and causeless suits on fear are no cause of action.

_Sed non allocatur_: for the threatening to mayhem, and suits, whereby they durst not work or buy, is a great damage to the plaintiff, and his losing the benefit of his quarries a good cause of action: and although it be not shown how he was possessed for years, by what title, &c., yet that being but a conveyance to this action, was held to be well enough. And adjudged for the plaintiff.[559]

TARLETON _v._ M’GAWLEY
AT NISI PRIUS, CORAM LORD KENYON, C. J., DECEMBER 21, 1804.
_Reported in Peake, 205._

This was a special action on the case. The declaration stated that the plaintiffs had sent a vessel called the “Bannister,” with a crew on board, under the command of one Thomas Smith, and loaded with goods proper for trading with the natives, to a part of the coast of Africa called Cameroon, to trade with the natives there. That while the last-mentioned ship was lying off Cameroon, a canoe with some natives on board came to the same for the purpose of establishing a trade, and went back to the shore, of which defendant had notice. And that he well knowing the premises, but _contriving and maliciously intending to hinder and deter the natives from trading_ with the said Thomas Smith, for the benefit of the plaintiffs, with force and arms, fired from a certain ship called the “Othello” of which he was master and commander, a certain cannon loaded with gunpowder and shot, at the said canoe, and killed one of the natives on board the same. _Whereby the natives of the said coast were deterred and hindered from trading with the said T. Smith for the benefit, &c., and plaintiffs lost their trade._

LORD KENYON. This action is brought by the plaintiffs to recover a satisfaction for a civil injury which they have sustained. The injury complained of is, that by the improper conduct of the defendant the natives were prevented from trading with the plaintiffs. The whole of the case is stated on the record, and if the parties desire it, the opinion of the court may hereafter be taken whether it will support an action. I am of opinion it will. Had this been an accidental thing, no action could have been maintained; but it is proved that the defendant had expressed an intention not to permit any to trade, until a debt due from the natives to himself was satisfied. If there was any court in that country to which he could have applied for justice he might have done so, but he had no right to take the law into his own hands.[560]

HART _v._ ALDRIDGE
IN THE KING’S BENCH, MAY 3, 1774.
_Reported in Cowper, 54._

This came before the court on a case reserved upon the following question: Whether under the circumstances of this case the plaintiff was entitled to recover? It was an action of trespass on the case for enticing away several of the plaintiff’s servants, who used to work for him in the capacity of journeymen shoemakers. The jury found that Martin and Clayton were employed as journeymen shoemakers by the plaintiff, but for no determinate time, but only by the piece, and had, at the time of the trespass laid, each of them a pair of shoes unfinished; that the defendant persuaded them to enter into his service, and to leave these shoes unfinished, which they accordingly did.

_Mr. Darwell_, for the plaintiff, stated it to be a question of common law, and that the only point for the opinion of the court was, “whether a journeyman was such a servant as the law takes notice of?” In support of which proposition he insisted that a journeyman is as much a servant as any other person who works for hire or wages; that neither in reason nor at common law is there any distinction between a servant in one capacity or another, and that the injury of seduction is in all cases the same, though the recompense in damages may be different. He pressed the argument _ab inconvenienti_, stating that it would be of great detriment to the town, where the whole trade was in a great measure carried on by this sort of servant. That the verdict had found the defendant to be apprised of the retainer of the servants, it being in proof that he had desired them to leave their work then in hand unfinished.

_Mr. Willes_, contra. The single question is, whether the enticing away a journeyman shoemaker, who is hired to make a single pair of shoes, is such an injury to his master as that an action will lie for it. Now the jury have found that there was no hiring for any determinate time, but only by the piece: if so, they could not be the plaintiff’s servants; for the term “journeyman” does not import that they belong to any particular master.

LORD MANSFIELD interrupted him. The question is, whether saying that such a one is a man’s journeyman, is as much as to say that he is such a man’s servant; that is, whether the jury, by finding him to be the plaintiff’s journeyman, do not _ex vi termini_ find him to be his servant. A journeyman is a servant by the day; and it makes no difference whether the work is done by the day or by the piece. He was certainly retained to finish the work he had undertaken, and the defendant knowingly enticed him to leave it unfinished.

What is the gist of the action? That the defendant has enticed a man away who stood in the relation of servant to the plaintiff, and by whom he was to be benefited. I think the point turns upon the jury finding that the persons enticed away were employed by the plaintiff as his journeymen. It might perhaps have been different if the men had taken work for everybody, and after the plaintiff had employed them the defendant had applied to them, and they had given the preference to him in point of time. For if a man lived in his own house and took in work for different people, it would be a strong ground to say that he was not the journeyman of any particular master; but the gist of the present action is that they were attached to this particular master.

ASTON, J. It is clear that a master may maintain an action against any one for taking and enticing away his servant, upon the ground of the interest which he has in his service and labor.[561] And even supposing, as my lord has stated, that the servant did live in his own house, if he were employed to finish a certain number of shoes for a particular person by a fixed time, and a third person enticed him away, I think an action would lie. If not, it might be of very bad consequence in trade. He is a servant _quoad hoc_, and though the seducer and enticer is much the worse, yet the law inflicts a penalty upon workmen leaving their work undone.

Mr. Justice WILLES and Mr. Justice ASHHURST concurred.

_Per Curiam._ Let the _postea_ be delivered to the plaintiff.[562]

EAGER _v._ GRIMWOOD
IN THE EXCHEQUER, JUNE 1, 1847.
_Reported in 1 Exchequer Reports, 61._

Trespass for assaulting and debauching the daughter and servant of the plaintiff, whereby she then became pregnant, &c., and the plaintiff lost and was deprived of her services. Plea: Not guilty.

At the trial before Pollock, C. B., at the London sittings after last Michaelmas term, the following facts appeared: The connection between the defendant and the plaintiff’s daughter took place for the first time two days after Christmas day, 1844. In June, 1845, the plaintiff’s daughter gave birth to a child, which, according to the evidence of a surgeon, was a full-grown child. It also appeared that the plaintiff had been put to some expense in consequence of his daughter’s illness. The learned Chief Baron left it to the jury to say whether or no the defendant was the father of the child; and he told them that if they believed he was not the father of the child, they should find a verdict for him. The jury having found for the defendant.

_Prentice_ obtained a rule _nisi_ for a new trial, on the ground of misdirection, against which

_Humfrey_ showed cause.

_Prentice_, in support of the rule.[563]

POLLOCK, C. B. The case of Grinnell _v._ Wells, 7 Man. & G. 1033, is precisely in point. That case decided that an action for seduction cannot be maintained without proof of loss of service. Tindal, C. J., in delivering the judgment of the court, says: “The foundation of the action by a father to recover damages against the wrong-doer, for the seduction of his daughter, has been uniformly placed from the earliest time hitherto, not upon the seduction itself, which is the wrongful act of the defendant, but upon the loss of service of the daughter, in which service he is supposed to have a legal right or interest.” The rule must be absolute to enter a nonsuit, unless the plaintiff will consent to a _stet processus_.

ALDERSON, B., ROLFE, B., and PLATT B., concurred.

_Rule accordingly._[564]

EVANS _v._ WALTON
IN THE COMMON PLEAS, JUNE 11, 1867.
_Reported in Law Reports, 2 Common Pleas, 615._

The first count of the declaration stated that Louisa Evans was and still is the servant of the plaintiff in his business of a publican and victualler; and that the defendant, well knowing the same, wrongfully enticed and procured the said Louisa Evans unlawfully and without the consent and against the will of the plaintiff, her said master, to depart from the service of the plaintiff; whereby the plaintiff had lost the service of the said Louisa Evans in his said business.

Pleas: Not guilty; and that Louisa Evans was not the servant of the plaintiff, as alleged. Issue thereon.

The cause was tried before Pigott, B., at the last Spring Assizes at Oxford. The plaintiff was a licensed victualler in Birmingham, and was assisted in his business by his daughter Louisa, a girl about nineteen years of age, who served in the bar and kept the accounts. On the 10th of November, 1866, the daughter, with her mother’s permission, which was procured by means of a fabricated letter purporting to be an invitation to her to spend a few days with a friend at Manchester, left the plaintiff’s house and went to a lodging-house in the neighborhood of Birmingham, where she cohabited with the defendant, at whose dictation the above-mentioned letter had been written. On the 19th of November the daughter returned home, and resumed her duties for a short time, but ultimately left her home again, and on the 9th of February was again found cohabiting with the defendant at the same lodging-house.

On the part of the defendant it was submitted that, in order to sustain the action, in the absence of an allegation that the defendant had debauched the plaintiff’s daughter, it was necessary to show a binding contract of service.

The learned Baron, after consulting Blackburn, J., intimated an opinion that the action would lie upon the declaration as framed; but he reserved to the defendant leave to move to enter a nonsuit if the court should be of opinion that in point of law the action was not maintainable,—the court to have power to draw any inferences of fact, and to amend the declaration if necessary, according to the facts proved.

The case was then left to the jury, who returned a verdict for the plaintiff, damages, £50.

_Huddleston_, Q. C., in Easter term, obtained a rule _nisi_.

_Powell_, Q. C., and _J. O. Griffits_ (June 11) showed cause, submitting that the action would lie upon the declaration as it stood.

The court called on

_H. James_ and _Jelf_, in support of the rule. There are two kinds of action for loss of service, viz., an action for the seduction and consequent loss of service of a daughter, and an action for enticing away a servant. In order to sustain the first, it is not enough that there has been criminal intercourse, but it must be shown that that intercourse has resulted in pregnancy or other illness so as to cause a disability in the daughter to perform her accustomed duties: Eager _v._ Grimwood; Boyle _v._ Brandon, 13 M. & W. 738; but an actual contract of service need not be proved. It is not suggested that there is any such cause of action here. In Sedgwick on Damages (2d ed.), page 543, it is said that “although the defendant be guilty of the seduction, but the jury are of opinion that the child is not his, the plaintiff cannot recover. In other words, without some damage to the plaintiff or master occasioned by the illness of the female, and resulting from the illicit intercourse, the plaintiff is without relief.” And for this Eager _v._ Grimwood is cited.

[BOVILL, C. J. Eager _v._ Grimwood is cited in Smith’s Leading Cases (6th ed.), vol. i. p. 260, with evident disapprobation.]

No precedent is to be found without the allegation _per quod servitium amisit_. The action for seduction is an anomalous one.

[WILLES, J. Upon the first point, I think we are bound by the case of Eager _v._ Grimwood. The question is, whether the action may not be maintained for enticing the girl away from her father’s service.]

To sustain an action for enticing away a servant, it is necessary to show a valid and binding contract of service, which has been broken through the procurement of the defendant. Actual service is not enough. Here, there was no contract, express or implied, for the breach of which the father could have sued his daughter. All that the defendant can be charged with having done is, inciting the daughter to do that which in the exercise of her own free will she had an undoubted right to do. If an action would lie for this, it would equally lie for inducing a daughter to quit her father’s house for the purpose of marrying her.[565] See Fitz. N. B. 90 H. In Cox _v._ Muncey, 6 C. B. N. S. 375, it was held by this court that no action will lie for enticing away an apprentice, unless there be a valid contract of apprenticeship; and the like was held as to a servant by the Court of Queen’s Bench in Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463.

[BOVILL, C. J. At the end of Lord Denman’s judgment, in Sykes _v._ Dixon, there is a remark which seems to be adverse to your view. “Then,” says his Lordship, “it was argued, on the authority of Keane _v._ Boycott, 2 H. Bl. 511, that the objection” (that is, to the validity of the contract) “was not one which a third person could take: and that might be so in a case where the servant was _de facto_ continuing in the service; but not here, where he had quitted his master, and taken his chance in hiring himself to the defendant.” Here the daughter was _de facto_ continuing in the service of her father when the defendant seduced her therefrom.]

All the authorities were referred to in Lumley _v._ Gye, and amongst them Blake _v._ Lanyon; but in none of them was the action held to lie in the absence of a binding contract of service.[566]

BOVILL, C. J. The rule in this case was granted principally on the contention of the defendant’s counsel that, in order to sustain the action, it was necessary to show that there was a binding contract of service between the father and the daughter. And for this proposition various text-books were referred to, and several cases cited, amongst which was that of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463. But, when that case is looked at, I find no such principle involved in the decision. Indeed, in each of the cases, from the form of the declaration, it became necessary to prove some contract for service beyond that which the law would imply from the relation of the parties. No authority is to be found where it has been held that in an action for enticing away the plaintiff’s daughter a binding contract of service must be alleged and proved. But there are abundant authorities to show the contrary. It is said that the case of seduction is anomalous in this respect. There is, however, no foundation for that assertion. In the case of an action for the seduction of a daughter, no proof of service is necessary beyond the services implied from the daughter’s living in her father’s house as a member of his family. So, in the case of an action for assaulting the plaintiff’s infant son or daughter, no evidence of service is necessary beyond that which the law will imply as between parent and child. In Barber _v._ Dennis, 6 Mod. 69; 1 Salk. 68, the widow of a waterman, who, as was said, by the usage of Waterman’s Hall, may take an apprentice, had her apprentice taken from her and put on board a Queen’s ship, where he earned two tickets, which came to the defendant’s hands, and for which the mistress brought trover. It was agreed that the action would well lie if the apprentice were a legal apprentice, for his possession would be that of his master, and whatever he earns shall go to his master; but it was objected that the company of watermen is a voluntary society, and that being free of it does not make a man free of London, so that the custom of London for persons under one and twenty to bind themselves apprentices does not extend to watermen; which was agreed by all. Then it was said that the supposed apprentice here was no legal apprentice, if the indentures be not enrolled pursuant to the 5 Eliz. c. 4, and, if he were not a legal apprentice, the plaintiff had no title. But Holt, C. J., said he would understand him an apprentice or servant _de facto_, and that would suffice against them, being wrong-doers. Again, in Fitz. N. B. 91 G. it is laid down that, “if a man ought to have toll in a fair, &c., and his servants are disturbed in gathering the same, he shall have trespass for assault of his servants, and for the loss of their service,” &c. To this is appended a note by Lord Hale: “Trespass for beating his servants, _per quod servitium amisit_, lies, although he was not retained, but served only at will. 11 Hen. IV. fol. 2, _per_ Hull, accordant. And so if A. retains B. to be his servant, who departs into another county and serves C., A., before any request or seizure, cannot beat B.; and, if he does, C. shall have trespass against him (21 Hen. VI. fol. 9), and recover damages, having regard to the loss of service (22 Ass. 76): and the retainer is traversable. 11 Hen. VI. fol. 30.” These authorities, and the principle upon which the action for assaulting a servant is founded, would seem to show that an actual binding contract is not necessary. There is no allegation in this declaration of a hiring for any definite time. All that is alleged is, that the girl was the daughter and servant of the plaintiff. It cannot be doubted that the jury would infer from the facts that the relation of master and servant did exist, without any evidence of a contract for a definite time; and, if we are to draw inferences from the facts, I should come to the same conclusion. Then, was that relation put an end to? The service, no doubt, was one which would be determinable at the will of either party, as is said by Bramwell, B., in Thompson _v._ Ross, 5 H. & N. 16. That this kind of service is sufficient, I should gather from the language used by this court in Hartley _v._ Cummings, 5 C. B. 247, and particularly from the judgment of Maule, J. That was an action for seducing workmen from the service of the plaintiff, a glass and alkali manufacturer, and harboring them after notice. It appeared that one Pike was in the service of the plaintiff, and the defendant induced him to leave. In giving judgment, Maule, J., says: “The objection urged on the part of the defendant is, that the agreement entered into by Pike with the plaintiff was one that gave the latter no right to compel Pike to serve him, inasmuch as it was void either for want of mutuality or because it was a contract to an unreasonable extent operating in restraint of trade. On the other side, it was insisted, upon the authority of Keane _v._ Boycott, 2 H. Bl. 511, that it is quite immaterial, for the purpose of this action, whether the agreement was void or not; for that it is not competent to the defendants, who are wrong-doers, to take advantage of its invalidity. In answer to this, the case of Sykes _v._ Dixon, 9 Ad. & E. 693; 1 P. & D. 463, was cited on the part of the defendants, where it is said to have been decided by the Court of Queen’s Bench that such an objection may be set up by a third person not a party to the agreement. It is unnecessary to say whether that case may not be distinguished from the present,—there being no subsisting service that was interrupted by the act of the defendant,—because I am of opinion that in this case there was a contract between Hartley and Pike, which was perfectly valid, notwithstanding the objections that have been urged.” Whether or not there was a subsisting service seems to be the test. I think the jury properly assumed that there was a subsisting service here. It is said that the girl’s services were not lost to the plaintiff by reason of the defendant’s having enticed her away; for that, inasmuch as she afterwards returned to her father’s house, the relation of master and servant was not put an end to by any act of the defendant’s. I think however, there was a sufficient interruption of the service to entitle the plaintiff to maintain the action, and that the rule to enter a nonsuit should be discharged.

WILLES, J. I am of the same opinion. I cannot look at it as an anomaly to hold that the daughter was the servant of her father at the time the defendant by his enticement induced her to forbear from rendering to her father the services which were due to him from her. There is a series of cases in the books, of which that in the Year-Book of 11 Hen. IV, fol. 2, is probably the first, to show that this action is maintainable. This case was followed by a very remarkable one of M. 22 Hen. VI, fol. 30, in which that doctrine is fully recognized, and where service at will and service upon a retainer are put upon the same footing with regard to any complaint of being wrongfully deprived of their fruits, and it is pointed out that the writ at common law ran, “_quare un tiel servientem meum in servitio meo existentem cepit et abduxit_,” without alleging any contract or retainer. That runs so completely with the earlier case, and also with the doctrine of Lord Denman in Sykes _v._ Dixon, 9 Ad. & E. 693, 699; 1 P. & D. 463, and of Maule, J., in Hartley _v._ Cummings, 5 C. B. 247, and also with the observations of Bramwell, B., in Thompson _v._ Ross, that I feel no difficulty in holding that, upon authority, as well as in good sense, the father of a family, in respect of such service as his daughter renders him from her sense of duty and filial gratitude, stands in the same position as an ordinary master. If she is in his service, whether _de son bon gre_ or _sur retainer_, he is equally entitled to her services, and to maintain an action against one who entices her away. Assuming that the service was at the will of both parties, like a tenancy at will, the relation must be put an end to in some way before the rights of the master under it can be lost. As a question of fact, was the daughter in the service of her father at the time the cause of action arose? Was the relation of master and servant put an end to by her quitting her father’s house by means of the false pretence to which the defendant induced her to resort? There was no proof that she quitted without any intention to return to her home. What pretence, then, was there for assuming that the service at will was put an end to? To use the language of Newton, J., in the case of 22 Hen. VI, fol. 30, it is no more than if a servant should absent herself for the purpose of going to church on the Sabbath day. Then, was the defendant guilty of any wrong in keeping her away from the plaintiff’s service? I apprehend that, where the relation of master and servant exists, any fraud whereby the servant is induced to absent herself affords a ground of action. Somewhat the same sort of question arose in Winsmore _v._ Greenbank, where, in an action on the case for inducing the plaintiff’s wife to continue absent, it was held to be sufficient to state that “the defendant unlawfully and unjustly persuaded, procured, and enticed the wife to continue absent, &c., by means of which persuasion, &c., she did continue absent, &c., whereby the plaintiff lost the comfort and society of his wife,” &c., without setting forth the means used by the defendant, or alleging that any adultery had been committed. There is really no difficulty when once the relation of master and servant at the time of the acts complained of is established. It was said that, inasmuch as none of the usual consequences, such as sickness or the birth of a child, resulted from the defendant’s acts, no action is maintainable for the mere improper intercourse. Be it so, as there is an authority in favor of that position; but that only removes the charge of debauching the plaintiff’s daughter out of the way. It does seem to me to be an extraordinary thing, and to reduce the argument to an absurdity, to say that the plaintiff would have had a sufficient cause of action against the defendant if the daughter had proved with child by him, and had gone back to her father’s house and been confined there, and that the fact of the father having through his fraud been deprived of his daughter’s services during the nine days’ concubinage affords no ground of action. The conclusion I arrive at is, that it was a question for the jury whether at the time the daughter left her father’s house there was an existing service _de facto_, and whether by the defendant’s means and procurement that service was denied to the plaintiff. If both those questions were found against the defendant, the plaintiff was clearly entitled to the verdict. I think there was abundant evidence to support the finding, and that the rule must be discharged.

_Rule discharged._[567]

LUMLEY _v._ GYE
IN THE QUEEN’S BENCH, TRINITY TERM, 1853.
_Reported in 2 Ellis & Blackburn, 216._

CROMPTON, J.[568] The declaration in this case consisted of three counts. The two first stated a contract between the plaintiff, the proprietor of the Queen’s Theatre, and Miss Wagner, for the performance by her for a period of three months at the plaintiff’s theatre; and it then stated that the defendant, knowing the premises and with a malicious intention, whilst the agreement was in full force, and before the expiration of the period for which Miss Wagner was engaged, wrongfully and maliciously enticed and procured Miss Wagner to refuse to sing or perform at the theatre, and to depart from and abandon her contract with the plaintiff and all service thereunder, whereby Miss Wagner wrongfully, during the full period of the engagement, refused and made default in performing at the theatre; and special damage arising from the breach of Miss Wagner’s engagement was then stated. The third count stated that Miss Wagner had been hired and engaged by the plaintiff, then being the owner of her Majesty’s Theatre, to perform at the said theatre for a certain specified period as the dramatic artiste of the plaintiff for reward to her in that behalf, and had become and was such dramatic artiste for the plaintiff at his said theatre for profit to the plaintiff in that behalf; and that the defendant, well knowing the premises and with a malicious intention, whilst Miss Wagner was such artiste of the plaintiff, wrongfully and maliciously enticed and procured her, so being such artiste of the plaintiff, to depart from and out of the said employment of the plaintiff, whereby she wrongfully departed from and out of the said service and employment of the plaintiff, and remained and continued absent from such service and employment until the expiration of her said hiring and engagement to the plaintiff by effluxion of time; and special damage arising from the breach of Miss Wagner’s engagement was then stated. To this declaration the defendant demurred; and the question for our decision is, Whether all or any of the counts are good in substance?

The effect of the two first counts is, that a person, under a binding contract to perform at a theatre, is induced by the malicious act of the defendant to refuse to perform and entirely to abandon her contract; whereby damage arises to the plaintiff, the proprietor of the theatre. The third count differs, in stating expressly that the performer had agreed to perform as the dramatic artiste of the plaintiff, and _had become and was_ the dramatic artiste of the plaintiff for reward to her; and that the defendant maliciously procured her to depart out of the employment of the plaintiff as such dramatic artiste; whereby she did depart out of the employment and service of the plaintiff; whereby damage was suffered by the plaintiff. It was said, in support of the demurrer, that it did not appear in the declaration that the relation of master and servant ever subsisted between the plaintiff and Miss Wagner; that Miss Wagner was not averred, especially in the two first counts, to have entered upon the service of the plaintiff; and that the engagement of a theatrical performer, even if the performer has entered upon the duties, is not of such a nature as to make the performer a servant, within the rule of law which gives an action to the master for the wrongful enticing away of his servant. And it was laid down broadly, as a general proposition of law, that no action will lie for procuring a person to break a contract, although such procuring is with a malicious intention and causes great and immediate injury. And the law as to enticing servants was said to be contrary to the general rule and principle of law, and to be anomalous, and probably to have had its origin from the state of society when serfdom existed, and to be founded upon, or upon the equity of, the Statute of Laborers. It was said that it would be dangerous to hold that an action was maintainable for persuading a third party to break a contract, unless some boundary or limits could be pointed out; and that the remedy for enticing away servants was confined to cases where the relation of master and servant, in a strict sense, subsisted between the parties; and that, in all other cases of contract, the only remedy was against the party breaking the contract.

Whatever may have been the origin or foundation of the law as to enticing of servants, and whether it be, as contended by the plaintiff, an instance and branch of a wider rule, or whether it be, as contended by the defendant, an anomaly and an exception from the general rule of law on such subjects, it must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant by procuring the servant to depart from the master’s service, or by harboring and keeping him as servant after he has quitted it and during the time stipulated for as the period of service, whereby the master is injured, commits a wrongful act for which he is responsible at law. I think that the rule applies wherever the wrongful interruption operates to prevent the service during the time for which the parties have contracted that the service shall continue; and I think that the relation of master and servant subsists, sufficiently for the purpose of such action, during the time for which there is in existence a binding contract of hiring and service between the parties; and I think that it is a fanciful and technical and unjust distinction to say that the not having actually entered into the service, or that the service not actually continuing, can make any difference. The wrong and injury are surely the same, whether the wrong-doer entices away the gardener, who has hired himself for a year, the night before he is to go to his work, or after he has planted the first cabbage on the first morning of his service; and I should be sorry to support a distinction so unjust, and so repugnant to common sense, unless bound to do so by some rule or authority of law plainly showing that such distinction exists....[569]

The objection as to the actual employment not having commenced would not apply in the present case to the third count, which states that Miss Wagner had become the artiste of the plaintiff, and that the defendant had induced her to depart from the employment. But it was further said that the engagement, employment or service, in the present case, was not of such a nature as to constitute the relation of master and servant, so as to warrant the application of the usual rule of law giving a remedy in case of enticing away servants. The nature of the injury and of the damage being the same, and the supposed right of action being in strict analogy to the ordinary case of master and servant, I see no reason for confining the case to services or engagements under contracts for services of any particular description; and I think that the remedy, in the absence of any legal reason to the contrary, may well apply to all cases where there is an unlawful and malicious enticing away of any person employed to give his personal labor or service for a given time under the direction of a master or employer who is injured by the wrongful act; more especially when the party is bound to give such personal services exclusively to the master or employer; though I by no means say that the service need be exclusive....[570]

In deciding this case on the narrower ground, I wish by no means to be considered as deciding that the larger ground taken by Mr. _Cowling_ is not tenable, or as saying that in no case except that of master and servant is an action maintainable for _maliciously_ inducing another to break a contract to the injury of the person with whom such contract has been made. It does not appear to me to be a sound answer, to say that the act in such cases is the act of the party who breaks the contract; for that reason would apply in the acknowledged case of master and servant. Nor is it an answer, to say that there is a remedy against the contractor, and that the party relies on the contract; for, besides that reason also applying to the case of master and servant, the action on the contract and the action against the malicious wrong-doer may be for a different matter; and the damages occasioned by such malicious injury might be calculated on a very different principle from the amount of the debt which might be the only sum recoverable on the contract. Suppose a trader, _with a malicious intent to ruin a rival trader_, goes to a banker or other party who owes money to his rival, and begs him not to pay the money which he owes him, and by that means ruins or greatly prejudices the party: I am by no means prepared to say that an action could not be maintained, and that damages, beyond the amount of the debt if the injury were great, or much less than such amount if the injury were less serious, might not be recovered. Where two or more parties were concerned in inflicting such injury, an indictment, or a writ of conspiracy at common law, might perhaps have been maintainable; and, where a writ of conspiracy would lie for an injury inflicted by two, an action on the case in the nature of conspiracy will generally lie; and in such action on the case the plaintiff is entitled to recover against one defendant without proof of any conspiracy, the malicious injury and not the conspiracy being the gist of the action.[571] In this class of cases it must be assumed that it is the malicious act of the defendant, and that malicious act only, which causes the servant or contractor not to perform the work or contract which he would otherwise have done. The servant or contractor may be utterly unable to pay anything like the amount of the damage sustained entirely from the wrongful act of the defendant; and it would seem unjust, and contrary to the general principles of law, if such wrong-doer were not responsible for the damage caused by his wrongful and malicious act. Several of the cases cited by Mr. _Cowling_ on this part of the case seem well worthy of attention.

Without however deciding any such more general question, I think that we are justified in applying the principle of the action for enticing away servants to a case where the defendant _maliciously procures_ a party, who is under a valid contract to give her exclusive personal services to the plaintiff for a specified period, to refuse to give such services _during the period for which she had so contracted_, whereby the plaintiff was injured.

I think, therefore, that our judgment should be for the plaintiff.

ERLE, J. The question raised upon this demurrer is, Whether an action will lie by the proprietor of a theatre against a person who maliciously procures an entire abandonment of a contract to perform exclusively at that theatre for a certain time; whereby damage was sustained? And it seems to me that it will. The authorities are numerous and uniform, that an action will lie by a master against a person who procures that a servant should unlawfully leave his service. The principle involved in these cases comprises the present; for there, the right of action in the master arises from the wrongful act of the defendant in procuring that the person hired should break his contract, by putting an end to the relation of employer and employed; and the present case is the same. If it is objected that this class of actions for procuring a breach of contract of hiring rests upon no principle, and ought not to be extended beyond the cases heretofore decided, and that, as those have related to contracts respecting trade, manufactures, or household service, and not to performance at a theatre, therefore they are no authority for an action in respect of a contract for such performance; the answer appears to me to be, that the class of cases referred to rests upon the principle that the procurement of the violation of the right is a cause of action, and that, when this principle is applied to a violation of a right arising upon a contract of hiring, the nature of the service contracted for is immaterial. It is clear that the procurement of the violation of a right is a cause of action in all instances where the violation is an actionable wrong, as in violations of a right to property, whether real or personal, or to personal security; he who procures the wrong is a joint wrong-doer, and may be sued, either alone or jointly with the agent, in the appropriate action for the wrong complained of. Where a right to the performance of a contract has been violated by a breach thereof, the remedy is upon the contract against the contracting party; and, if he is made to indemnify for such breach, no further recourse is allowed; and, as in case of the procurement of a breach of contract the action is for a wrong and cannot be joined with the action on the contract, and as the act itself is not likely to be of frequent occurrence nor easy of proof, therefore the actions for this wrong, in respect of other contracts than those of hiring, are not numerous; but still they seem to me sufficient to show that the principle has been recognized. In Winsmore _v._ Greenbank it was decided that the procuring of a breach of the contract of a wife is a cause of action. The only distinction in principle between this case and other cases of contracts is, that the wife is not liable to be sued; but the judgment rests on no such grounds; the procuring a violation of the plaintiff’s right under the marriage contract is held to be an actionable wrong. In Green _v._ Button, 2 C. M. & R. 707, it was decided that the procuring a breach of a contract of sale of goods by a false claim of lien is an actionable wrong. Sheperd _v._ Wakeman, 1 Sid. 79, is to the same effect, where the defendant procured a breach of a contract of marriage by asserting that the woman was already married. In Ashley _v._ Harrison, 1 Peake’s N. P. C. 194; S. C. 1 Esp. N. P. C. 48, and in Taylor _v._ Neri, 1 Esp. N. P. C. 386, it was properly decided that the action did not lie, because the battery, in the first case, and the libel, in the second case, upon the contracting parties were not shown to be with intent to cause those persons to break their contracts, and so the defendants by their wrongful acts did not procure the breaches of contract which were complained of. If they had so acted for the purpose of procuring those breaches, it seems to me they would have been liable to the plaintiffs. To these decisions, founded on the principle now relied upon, the cases for procuring breaches of contracts of hiring should be added; at least Lord Mansfield’s judgment in Bird _v._ Randall, 3 Burr. 1345, is to that effect. This principle is supported by good reason. He who maliciously procures a damage to another by violation of his right ought to be made to indemnify; and that, whether he procures an actionable wrong or a breach of contract. He who procures the non-delivery of goods according to contract may inflict an injury, the same as he who procures the abstraction of goods after delivery; and both ought on the same ground to be made responsible. The remedy on the contract may be inadequate, as where the measure of damages is restricted; or in the case of non-payment of a debt where the damage may be bankruptcy to the creditor who is disappointed, but the measure of damages against the debtor is interest only; or, in the case of the non-delivery of the goods, the disappointment may lead to a heavy forfeiture under a contract to complete a work within a time, but the measure of damages against the vendor of the goods for non-delivery may be only the difference between the contract price and the market value of the goods in question at the time of the breach. In such cases, he who procures the damage maliciously might justly be made responsible beyond the liability of the contractor.

With respect to the objection that the contracting party had not begun the performance of the contract, I do not think it a tenable ground of defence. The procurement of the breach of the contract may be equally injurious, whether the service has begun or not, and in my judgment ought to be equally actionable, as the relation of employer and employed is constituted by the contract alone, and no act of service is necessary thereto.

The result is that there ought to be, in my opinion, judgment for the plaintiff.

[The concurring opinion of WIGHTMAN, J., is omitted.]

COLERIDGE, J. It may simplify what I have to say, if I first state what are the conclusions which I seek to establish. They are these: that in respect of breach of contract the general rule of our law is to confine its remedies by action to the contracting parties, and to damages directly and proximately consequential on the act of him who is sued;[572] that, as between master and servant, there is an admitted exception; that this exception dates from the Statute of Laborers, 23 Edw. III., and both on principle and according to authority is limited by it. If I am right in these positions, the conclusion will be for the defendant, because enough appears on this record to show, as to the first, that he, and, as to the second, that Johanna Wagner, is not within the limits so drawn.