No. 14. Lumley v. Gye. - Rule.

settled in that State. See Barlow v. Myers, 64 New York, 41; 21 Am. Rep. 582. The facts in Lawrence v. Fox were these: Holly lent Fox money, which Fox, in consideration of the loan, agreed at the time of the loan to pay the next day to Lawrence upon a debt which Holly owed him. It was held that Lawrence could sue Fox upon that agreement, although he was in no way privy to it. The court said: "The consideration received, and the promise to Holly made, it as plainly his duty to pay the plaintiff as if the money had been remitted to him for that purpose, and as well implied a promise to do so as if he had been made a trustee of property to be converted into cash with which to pay." The argument that Holly could have discharged the defendant from his promise was practically answered by the statement that he did not release him, and that he could not do so if Lawrence had taken action on the promise. COMSTOCK and GROVER, J. J., dissented. See Little v. Banks, 85 New York, 258; Hand v. Kennedy, 83 id., 150; Seward v. Huntington, 94 id., 104; Wheat v. Rice, 97 id., 296; Campbell v. Smith, 71 id., 26; 27 Am. Rep. 5; Hutchings v. Miner, 46 New York, 456; 7 Am. Rep. 369.

This doctrine is also the rule in Mason v. Hall, 30 Alabama, 601; Treat v. Stanton, 14 Connecticut, 451; Morgan v. Overman Co., 37 California, 537; Arnold v. Lyman, 17 Massachusetts, 400; 9 Am. Dec. 154; Johannes v. Phenix Ins. Co., 66 Wisconsin, 50; 57 Am. Rep. 249; Joslin v. Car Co., 36 New Jersey Law, 141; Jones v. Thomas, 21 Grattan (Virginia), 101; Bristow v. Lane, 21 Illinois, 194; Bohanon v. Pope, 42 Maine, 96; Blymire v. Boistie, 6 Watts (Penn.), 182; 31 Am. Dec. 458; Cox v. Skeen, 2 Iredell (No. Carolina), 220; 38 Am. Dec. 691; Brewer v. Maurer, 38 Ohio St. 543; 43 Am. Rep. 437; Brown v. O'Brien, 1 Richardson Law (So. Carolina), 268; 44 Am. Dec. 254; Robbins v. Ayres, 10 Missouri, 538; 47 Am. Dec. 125; Allen v. Thomas, 3 Metcalfe (Kentucky), 198; 77 Am. Dec. 169; West v. West. Un. Tel. Co., 39 Kansas, 93; 7 Am. St. Rep. 530. See also duplicate cases, with notes, 6 Am. Dec. 708; 15 id. 172; 17 id. 206; 24 id. 325; 26 id. 107; 44 id. 137; 45 id. 727; 58 id. 713.

The only very influential State manifesting any tendency to adhere to the common-law rule is Massachusetts, in which it will be seen that fine distinctions are drawn and the general proposition is mooted.

WHERE there is a contract between two persons for exclusive personal service to be rendered by the one to the other, an action lies against a third person (not a party to

the contract) who intentionally induces the former party to break his contract so as to cause, as the natural consequence of the breach, loss to the other.

Lumley v. Gye.

2 E. & B. 216.

The first count of the declaration stated that plaintiff was lessee and manager of the Queen's Theatre, for performing operas for gain to him; and that he had contracted and agreed with Johanna Wagner to perform in the theatre for a certain time, with a condition, amongst others, that she should not sing nor use her talents elsewhere during the term without plaintiff's consent in writing: yet, defendant, knowing the premises, and maliciously intending to injure plaintiff as lessee and manager of the theatre, whilst the agreement with Wagner was in force, and before the expiration of the term, enticed and procured Wagner to refuse to perform; by means of which enticement and procurement of defendant, Wagner wrongfully refused to perform, and did not perform during the term.

Count 2. For enticing and procuring Johanna Wagner to continue to refuse to perform during the term, after the order of Vice Chancellor PARKER, affirmed by Lord ST. LEONARDS, see Lumley v. Wagner, 1 De G. McN. & G. 604, restraining her from performing at a theatre of defendants.

Count 3. That Johanna Wagner had been and was hired by plaintiff to sing and perform at his theatre for a certain time, as the dramatic artiste of plaintiff, for reward to her, and had become and was such dramatic artiste of plaintiff at his theatre: yet defendant, well knowing, &c., maliciously enticed and procured her, then being such dramatic artiste, to depart from the said employment.

In each count special damage was alleged.

Demurrer. Joinder.

The demurrer was argued in the sittings after Hilary Term last, February 4 and 5, 1853, hefore COLERIDGE, WIGHTMAN, ERLE, and CROMPTON, JJ.

Willes for the defendant. The counts disclose a breach of contract on the part of Wagner, for which the plaintiff's remedy is by an action on the contract against her. The relation of master and servant is peculiar; and, though it originates in a contract

between the employer and the employed, it gives rise to rights and liabilities, on the part of the master, different from those which would result from any other contract. Thus, the master is liable for the negligence of his servant, whilst an ordinary contractor is not liable for that of the person with whom he contracts. And a master may lawfully defend his servant when a contractor may not defend his contractee. And so a master may bring an action for enticing away his servant. But these are anomalies, having their origin in times when slavery existed. They are intelligible on the supposition that the servant is the property of his master; and, though they have been continued long after all but free service has ceased, they are still confined to cases where the relation of master and servant, in the strict sense, exists. In the present case, Wagner is a dramatic artiste, not a servant in any sense. (It is unnecessary to report the argument for the defendant further in detail, as the points made in it, and the authorities relied upon, are fully stated in the judgments of CROMPTON, J., and WIGHTMAN, J.)

Cowling, contrà. The general principle is laid down in Comyns's Digest, Action upon the Case (A). 'In all cases, where a man has a temporal loss, or damage by the wrong of another, he may have an action upon the case, to be repaired in damages." In Comyns's Digest, Action upon the Case for Misfeasance (A 6), an instance is given: "If he threaten the tenants of another, whereby they depart from their tenures," citing 1 Rol. Abr. 108, Action sur Case (N) pl. 21. An action lies for procuring plaintiff's wife to remain absent; Winsmore v. Greenbank, Willes, 577. An action lay for ravishment of ward; and, if "a man procureth a ward to go from his guardian, this is a ravishment in law;" 2 Inst. 440. Now, as neither the tenants, the wife, nor the ward are servants, it cannot be said that the action for procurement is an anomaly confined to the case of master and servant. "Every master has by his contract purchased for a valuable consideration the services of his domestics for a limited time; the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given a remedy by a special action on the case; and he may also have an action against the servant for the non-performance of his agreement;" 3 Bl. Com. 142. Blackstone thus treats the action by a master as an example of a general rule that "inducing a breach of contract" is an injury for which an action lies. And surely, any

one, not a lawyer, would agree that the malicious and intentional procurement of a breach of contract was a wrong, and that the breach of contract intended to be procured was the direct consequence of that wrongful procurement. Green v. Button, 2 C. M. & R. 707, is apparently an authority for that larger proposition; and so is Sheperd v. Wakeman, 1 Sid. 79. It is not accurate to say that the remedy for breach of contract is confined to those privy to the contract, Levy v. Langridge, 4 M. & W. 337, affirming the judgment of the Exchequer in Langridge v. Levy, 2 M. & W. 519. In that case the son recovered though the warranty was to the father. It is true that the damage to the plaintiff must be the natural and immediate consequence of the wrong of the defendant, and that it is not often that the unjustifiable act of an independent party is the natural consequence of that wrong; but, when, as on this demurrer must be taken to be the fact, the defendant uses the contracting party as his tool to break the contract to the damage of the plaintiff, why should he not be answerable for the damage he thus intentionally produces? The procurement may in some cases be privileged, just as a libel or slander may be; but here it is malicious. It is, however, unnecessary to go so far in this case, as the contract is for exclusive personal services, and the authorities are clear that in such cases the action lies. (The arguments for the plaintiff on this part of the case, and the authorities cited, are so fully stated in the judgments that it is unnecessary to repeat them here.)

ence.

Willes, in reply. The averment of malice can make no differIf the action does not lie without malice, it does not lie with it; and malice is never averred in actions for seducing servants. The passage cited from Comyns's Digest, Action upon the Case (A), does not throw much light on the matter. It is not disputed that damage resulting from a wrong gives a cause of action; but the defendant's point is that the act complained of is not a wrong within the technical meaning of the word: and this is an instance of the rule, "ex damno sine injuriâ non oritur actio." The instances cited, as supporting the general proposition, all range themselves under some well known class of wrongs. The reference in Comyns's Digest, Action upon the Case for Misfeasance (A 6), is to 1 Roll. Ab. 108, Action sur Case (N), pl. 21, where it appears that the menaces were to "tenants at will, of life and limb." The tenants, therefore, were not bound to remain; and

the threats of life and limb must have been an interference with the plaintiff's property. Ravishment of ward also proceeds on the ground that the guardian had a property in his ward. Winsmore v. Greenbank, Willes, 577, extends the law as to enticing servants to enticing a wife; but the principle is the same. The common law considers the wife the property and servant of the husband. In Sheperd v. Wakeman, 1 Sid. 79, the action was for asserting that the plaintiff was already married, per quod she lost her marriage; but to assert that a woman is about to commit bigamy is actionable per se. Levy v. Langridge, 4 M. & W. 337, was decided on the ground that there was what was equivalent to a fraudulent representation to the plaintiff as to an article which he was to use. The act complained of in Green v. Button, 2 C. M. & R. 707, was also a wrong in itself. The injury done was analogous to slander of title. (The argument in reply, as to the effect of the contract being for exclusive service, is sufficiently shown by the judgments.) Cur. adv. vult.

The Court were divided in opinion, and delivered their opinions seriatim; WIGHTMAN, J., ERLE and CROMPTON, JJ., holding that all the counts were good; COLERIDGE, J., on the contrary, being of opinion that the action could not be maintained. In accordance with the opinion of the majority, judgment was given for the plaintiff. The reasons of the opinions of the majority sufficiently appear from the judgment of

CROMPTON, J. 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