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]]