[565]. The father can maintain no action in such a case: Goodwin v. Thompson, 2 Greene, 329; Jones v. Tevis, 4 Litt. 25; Hervey v. Moseley, 7 Gray, 479; Beard v. Holland, 59 Miss. 161, 164; Wilkinson v. Dellinger, 126 N. C. 462. Unless the daughter was induced to marry the defendant by the latter’s fraud. Hills v. Hobert, 2 Root, 48; Goodwin v. Thompson, supra.
[566]. A part of the argument and the concurring opinion of Montague Smith, J., with which Keating, J., agreed, are omitted.
[567]. Whether it is an excess of fair competition to induce a servant at will to leave the plaintiff, and enter the service of the defendant, cannot be said to be definitely settled. In Salter v. Howard, 43 Ga. 601, the plaintiff prevailed; but in Campbell v. Cooper, 34 N. H. 49, the defendant was successful. The other cases commonly cited for the plaintiff are distinguishable. In Sykes v. Dixon, 9 A. & E. 693, and Peters v. Lord, 18 Conn. 337, the servant had left the plaintiff of his own head before entering the service of the defendant. In Keane v. Boycott, 2 H. Bl. 512, the defendant, a recruiting officer, officiously induced the servant to leave the plaintiff, in order to enlist as a soldier. In Speight v. Oliviera, 2 Stark. 493; Morgan v. Molony, 7 Ir. L. R. N. S. 101, 240; Ball v. Bruce, 21 Ill. 161; and Noice v. Brown, 39 N. J. Law, 569, as in the principal case, the enticement was for an immoral purpose. In Cox v. Muncey, 6 C. B. N. S. 375, a father induced an apprentice at will to leave the master, but the motive of the father does not appear.
“[Keane v. Boycott, 2 H. Bl. 512] seems contrary to the general principle and is certainly opposed to the decision of the Court of Appeals in DeFrancesco v. Barnum, 45 Ch. D. 430. The defendant there had enticed away an apprentice of the plaintiff. But the indenture contained unreasonable stipulations, and it was held that it might be avoided by the apprentice, and that it was not unlawful for the defendant to persuade the apprentice to do that which was lawful. It is different, however, if malice, force or fraud be used to take or decoy the servant away. In that case the master has a right of action, even though the servant be under no binding obligation. Per Willes, J., Evans v. Walton, L. R. 2 Com. PL., pp. 621–622.” Clerk and Lindsell, Torts, 5 ed. 227.
To induce a servant who is under contract with the plaintiff to leave the latter at the expiration of the term of service, and to enter the defendant’s service, is no more than lawful competition. Nichol v. Martyn, 2 Esp. 732; Boston Manufactory v. Binney, 4 Pick. 425.
[568]. The statement of the case and the arguments of counsel are omitted.
[569]. The learned judge here discussed and approved of Blake v. Lanyon, 6 T. R. 221.
[570]. The rest of the opinion on this point is omitted.
[571]. See note (4) to Skinner v. Gunton, 1 Wms. Saund. 230.—Reporter’s note.
[572]. Only the opinion of Coleridge, J., on this point is given. It is now generally admitted that this learned judge, although wrong on this point, was right in maintaining that the actress was not a servant.