If an apprentice, bound in this state, desert the service of his master, he shall be liable to the master, notwithstanding his infancy, for all damages sustained by such desertion.

Following the act in 1 R. C. 1819, p. 532, § 16, the Code (p. 532, c. 126, § 16,) further provides as follows:

If any person shall, knowingly, conceal or harbour any such apprentice, he shall pay such master three dollars for each day he shall so conceal and harbour the apprentice, in addition to the damages sustained by the master.

3. Action for enticing a servant or other person to leave his master or employer.

The English judges have considered that it did not become one who had no concern in the relation between a master and his servant to endeavour to dissolve that relation; that a servant, whether a negro or not, should not be solicited or enticed to leave his master; and that an action would lie therefor. Keane v. Boycott, 2 H. Bl. 511. On what foundation the action originally arose-whether on the common law or the statute of 23 Edw. 3, (passed in 1350,)—is a matter which has undergone no little discussion.

In Lord Mansfield's time the question was argued as one of common law. It was then considered clear that a master may maintain an action against one for enticing away his servant-or one who stood in that relation to him-upon the ground of the interest which he has in his service and labour; two persons being employed by the plaintiff as journeymen shoemakers, for no determinate time but only by the piece, while each of them had a pair of shoes unfinished, they on the defendant's persuasion entered his service and left those shoes unfinished; the action was maintained therefor. Hart v. Aldridge, Cowp. 54. This decision is not affected by Bird v. Randall, 3 Burr. 1345; for there the plaintiff had already received from the servant more than ample satisfaction for the injury done him; and therefore he could not afterwards proceed against any other person for a further satisfaction.

In accordance with the opinion of Gawdy, J. in Adams v. Bafeald, 1 Leon. 240, against the opinion of the two other judges in that case-and in accordance with Fawcet v. Beavres & wife, 2 Lev. 63-it was held in Lord Kenyon's time that an action will lie for continuing to employ the plaintiff's servant after notice, though the defendant had not enticed away the servant but received him innocently. Blake v.

Lanyon, 6 T. R. 221. In this case no fault was imputed to the defendant for taking the servant into his service in the first instance because then he had no notice of the prior engagement to the plaintiff; but it was considered that so soon as he had notice of that fact, he ought to have discharged him. The court said, "a person who contracts with another to do certain work for him is the servant of that other till the work is finished, and no other person can employ such servant to the prejudice of the first master; the very act of giving him employment is affording him the means of keeping out of his former service."

In two cases at nisi prius, one for having published a libel against, and the other for having made an assault on, a performer, whereby the manager of the theatre lost the benefit of the performer's services, it was held that the action would not lie. Astley v. Harrison, 1 Peake N. P. C. 194, 1 Esp. N. P. Cas. 48; Taylor v. Neri, Id. 386. It was, says Erle, J., properly so decided, because the libel on the one performer and the battery on the other were not shewn 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. 2 El. & Black. 233.

In one case- -an action of slander-Lord Eldon remarked that if the plaintiff had sustained any damage in consequence of the refusal of any persons to perform their lawful contracts with him it is damage which may be compensated in actions brought by the plaintiff against those persons; and the law supposes that in such actions the plaintiff would receive a full indemnity. Morris v. Langdale, 2 Bos. & Pul. 288, 9. In another action of slander, a refusal to employ the plaintiff was treated as an illegal consequence-a mere wrongful act of the person so refusing-for which the defendant was not responsible. Vicars v. Wilcocks, 8 East 3. These cases have been relied on in other actions than slander to shew that the plaintiff's right of action against others bars him from recovering against the defendant. But doubt has been thrown upon their authority. 2 C. M. & R. 715, 16; 2 El. & Black. 237.

However that may be, there must be a contract of service binding the master to employ, as well as the servant to serve, to enable the master to maintain an action in respect to a servant who has quitted him and taken his chance in hiring himself to the defendant. Sykes v. Dixon, 9 Adol. & El. 693, 36 Eng. Com. Law Rep. 244. There was a contract by the master to employ, as well as by the servant to serve, in Pil

kington &c. v. Scott &c. 15 M. & W. 656; and Hartley &c. v. Cummings, 5 Man. Gr. & Scott 247, 57 Eng. Com. Law Rep. 247.

In the late case of Lumley v. Gye-wherein the proprietor of the Queen's theatre alleged that Miss Johanna Wagner had contracted to perform in his theatre in operas for a specified time-the demurrers raised the question whether an action will lie against a third party for maliciously and injuriously enticing and procuring another to break a contract for exclusive service as a singer and theatrical performer. Coleridge, J. considered that to sustain the action one of two propositions must be maintained; either that an action will lie against any one by whose persuasions one party to a contract is induced to break it to the damage of the other party, or that the action, for seducing a servant from the master, or persuading one who has contracted for service, from entering into the employ is of so wide application as to embrace the case of one in the position and profession of Miss Wagner. And he deemed neither of these propositions true. The conclusions which he sought to establish are these: that in respect of breach of contract the general rule of 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; that as between master and servant there is an admitted exception; but that this exception dates from the statute of labourers, 23 Edw. 3, (1350,) and is limited by it. 2 El. & Black. 245, 6. The object and language of that statute, he said, pointed only to the compulsion of labourers, handicraftsmen and people of low degree who had no means of their own to live upon, and who, if they did not live by wages earned by their labour, would be vagrants, mendicants, or worse: And he thought it could not be successfully contended that judicial cognizance may not be taken of the nature of the service spoken of in the declaration. "We have," he said, "ventured to take judicial cognizance of the moral qualities of Robinson Crusoe's 'man Friday,' (Forbes v. King, 1 Dow. P. C. 672); and Esop's 'frozen snake,' (Hoare v. Silverlock, 12 Adol. & El. N. S. 624.) We may certainly therefore take upon ourselves to pronounce that a singer at operas, or a dramatic artiste to the owner and manager of her majesty's theatre is not a messor falcator ant alius operarius vel serviens within either the letter or the spirit of the statute. And if we were to hold the contrary as to the profession of rick and Siddons, we could not refuse to hold regard to the sister arts of painting, sculpture

We must lay it down that Reynolds when

he agreed to paint a picture, or Flaxman when he agreed to model a statue, had entered into a contract of service and stood in the relation of servant to him with whom he had made the agreement." 2 El. & Black. 266, 7. If Miss Wagner be not within the statute he conceived that the action would not lie while the statute was in force, and cannot now. Id. 268. However, a majority of the judges sustained the action. "Whatever, said Crompton, J., may have been the origin or foundation of the law as to enticing of servants," "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 harbouring 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." And he considered (and Erle and Wightman, J. concurred with him,) that the principle of the action for enticing away servants might properly be applied 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. 2 El. & Black. 224-230; 75 Eng. Com. Law Rep. 224-230; 20 Eng. Law & Eq. 168.

4. Action for harbouring or employing a slave without his master's consent, or for injury in such employment.

Following the act in 1 R. C. 1819, p. 439, § 69, the Code of 1849, p. 460, c. 104, § 8, provides that "any person harbouring or employing a slave without the consent of his master shall forfeit to the master not less than one nor more than five dollars for every day of such harbouring or employment." P. 460, 8. The forfeiture not being expressly mentioned to be in lieu of damages for the violation of this statute, an action will lie to recover such damages. See ante, p. 548. Such actions have been maintained in other states.

In South Carolina, it appearing that the defendant who was concerned in a horse race, had without the plaintiff's consent permitted his negro boy to ride a horse, and that in the course of the race the boy was thrown against a tree and instantly killed, the plaintiff recovered the value of the boy. Wright v. Gray, 2 Bay. 464.

In Louisiana it appearing that the plaintiff's slave absconded and went on board the defendant's steamboat and was without the plaintiff's consent hired and employed for several days in unloading and loading the steamboat, and that when the plaintiff went there to arrest him, the slave in endeavouring to escape fell overboard and was drowned, after two verdicts had been found for the plaintiff, the second was allowed to stand. Strawbridge v. Turner &c. 9 Louis. 213.

In South Carolina, where a slave had for a time been employed on board a steamboat with the owner's consent, but that consent had terminated and the slave, being discharged as a regularly hired boat hand, was then irregularly retained and used by the captain as a boat hand without the owner's consent, and in the voyage fell overboard and was drowned, the owners of the boat were held liable to the owner of the slave for his value. McDaniel v. Emanuel, 2 Richardson 455.

5. Action for carrying off a slave or assisting or enticing him to abscond.

An action on the case will lie for assisting, enticing or persuading a slave to abscond from his master's service. Murphey v. Barron, 1 Har. & Gill 258; Law v. Law, 2 Grat. 366.

The Virginia acts in 1 R. C. 1819, p. 432, § 52, and 1836, 7, p. 101, c. 117, so far as relate to the owner's redress and the measure of his compensation are revised in the Code of 1849, p. 589, c. 148, § 5. The provision in the Code is as follows:

Any railroad company in whose car or vehicle, and any master or skipper of a vessel, in which a slave shall be transported or carried, without the authority of the owner of such slave, or his agent or guardian, shall be liable to such owner for the value of such slave, if he be thereby lost, and whether he be recovered or not, for such reasonable expenses as may be incurred by the owner, to effect such recovery.

The Kentucky acts of 1824 and 1828, were the subject of decision in Graham v. Strader &c. 5 B. Monroe 176.