general good character.

submitting to the defendant's embraces, those circumstances must be explained, if capable of explanation, on re-examination, for the plaintiff cannot, in answer, call witnesses to her general character (q). Though, in one case, where the crossexamination went to show that the plaintiff's daughter had conducted herself immodestly towards the defendant before her seduction, and that she kept improper company, witnesses were allowed to be called, on the part of the plaintiff, to prove the general good character and modest deportment of the daughter, Evidence of and the general respectability of the family (r). The plaintiff cannot give evidence of the general good character of the person seduced, except in answer to evidence of general bad character. And, therefore, where evidence is given of a specific breach of chastity, the plaintiff is restricted to disproving that specific act (s). Nor can evidence be admitted on the part of the plaintiff to show that the defendant accomplished the seduction by means of a promise of marriage (t); at least not directly for the purpose of increasing damages, though such evidence may be given indirectly, and is frequently received for the purpose of vindicating the girl's character (u). Declarations of the defendant's wife, tending to show that she aided and colluded with the defendant in seducing the plaintiff's daughter, have been admitted in evidence in aggravation of damages (x).

Promise of marriage,

Defence.

Evidence.

The defendant may plead that the person seduced was not the plaintiff's servant (y), though it appears unnecessary to do so (z). It is, however, safer to add such a plea if it is intended to rely on that fact as a defence to the action. But the defendant cannot pay money into court (a).

On the part of the defendant evidence may be given, in mitigation of damages, not only of the general bad character of the person alleged to have been seduced, but also of particular acts of unchastity on her part (b). But he cannot call witnesses to prove that she has talked of another person than the defendant

(q) Dodd v. Norris, ubi supra ; and see Bamfield v. Massey, 1 Campb. 460.

(r) Bate v. Hill, 1 C. & P. 100. See the note at the end of the case, where it is said that the course adopted in that case is more conducive to the ends of justice, than that adopted in Dodd v. Norris. And see 1 Ph. on Ev. 468.

(s) Bamfield v. Massey, 1 Campb. 460.

(t) Dodd v. Norris, 3 Campb.

519.

(u) Per Garrow, B. (in Elliott v. Nicklin, 5 Price, 647), who was counsel in Dodd v. Norris. And see Tullidge v. Wade, 3 Wils. 18; Capron v. Balmond, Exeter Spr. Ass. 1831; Rosc.

on Ev. 468.

(x) Knowles v. Compigne, Wint. Summ. Ass. 1835; Rosc. on Ev. 44.

(y) Torrence v. Gibbins, 5 Q. B. 297; Davies v. Williams, 10 Q. B. 725.

(z) Holloway v. Abell, 7 C. & P. 530; Eager v. Grimwood, 1 Exc. 61.

(a) 3 & 4 Will. 4, c. 42, s. 21; 15 & 16 Vict. c. 76, s. 70.

(b) Verry v. Watkins, 7 C. & P. 308; and see R. v. Martin, 6 C. & P. 562; R. v. Robins, 2 M. & Rob. 512. But see per Erle, J., 16 Q. B. 178, who said he knew no instance of evidence of general bad character being admitted in actions for seduction.

as her seducer and the father of her child, unless she be first asked in cross-examination whether she ever used those expressions (c). Such evidence, however, might be admissible to show general misconduct and frequent use of loose language (d).

The plaintiff may recover damages for the injury which his Damages. feelings have sustained in addition to the actual expense incurred by loss of service and payment of doctor's bills (e). And, in one case, Lord Eldon told the jury that, in estimating the damage sustained by the plaintiff, they might look upon her as a parent losing the comfort as well as the service of her daughter, in whose virtue she could feel no consolation; and as the parent of other children whose morals might be corrupted by her example (f). But it would seem to be the better opinion that the plaintiff cannot aggravate the damages by proof of the wealth of the defendant (g).

CHAPTER IV.

THE DUTIES OF THE MASTER TO THE SERVANT, AND
THE RIGHTS AND REMEDIES OF THE SERVANT TO
ENFORCE THE PERFORMANCE OF THEM.

Duty of

master to receive ser

service.

OF THE MASTER'S DUTY TO RECEIVE THE SER-
VANT INTO HIS SERVICE, AND RETAIN HIM;
AND THE SERVANT'S REMEDIES FOR BREACH
OF SUCH DUTIES.

It is obviously the duty of every man who has engaged another person as a servant, to receive such person into his service, and vant into his if he refuse to do so without any good reason for his refusal, such person may maintain an action against him for that breach of contract (a). Thus, where the defendant agreed to take the plaintiff, who was a shepherd, into his service at certain wages for the then next lambing season, for five weeks next ensuing after the 28th February then next, but afterwards refused to allow him to enter into his service, the plaintiff recovered damages in an action brought for such breach of contract on the part of the defendant (b). To sustain this action, however, it would (c)

Action for
refusal.
Clarke v.
Allatt.

(a) Bracegirdle v. Heald, 1 B. & Ald. 722, ante, p. 22; Blogg v. Kent, 6 Bing. 614. Where there is only one copy of the contract of hiring, the court will compel the party in whose possession it is to produce it to the

other party, ib.

(b) Clarke v. Allatt, 4 C. B. 335.

(c) Bracegirdle v. Heald, ubi supra. As to the requisites "of the contract, see ante, Chap. II.

of course be necessary to prove a legally-binding contract of hiring and service. It is obvious that what would be a good reason for discharging a servant would be an equally good reason for refusing to receive him into one's service, after having en- Conspiracy gaged to do so. But it is no answer to an action for not per- to depart forming an agreement to employ the plaintiff, that he has from agreeentered into a conspiracy to depart from the agreement, unless ment, no the conspiracy has been acted on (d).

answer, unless acted on.

for com

De la Tour.

And where a person has entered into a binding agreement to Action may take another into his service on a future day, but before that be brought day arrives, announces his intention not to do so, he is entitled before the day to be believed, and the servant may thereupon immediately bring mencement an action against him, and is not bound to wait till the day arrives of service. to see if the master will change his mind. In a case (e), there- Hochster v. fore, in which a gentleman in April engaged a courier to accompany him on a tour for three months on the continent of Europe, to commence on the 1st of June, but in May wrote to say he had changed his mind, and declined the courier's services, and the courier thereupon in May commenced an action against him, and afterwards, before the 1st of June, obtained another engagement, on equally good terms, but not commencing till 4th of July; it was held that the courier was entitled to recover, although it was objected, and very powerfully contended, that the plaintiff was bound to remain ready and willing to perform the contract till the day when the actual employment was to begin, and that there could be no breach of the contract before the 1st of June. And Lord Campbell, C. J., said: "The man who wrongfully renounces a contract into which he has deliberately entered, cannot justly complain if he is immediately sued for a compensation in damages by the man whom he has injured; and it seems reasonable to allow an option to the injured party either to sue immediately or to wait till the time when the act was to be done, still holding it as prospectively binding for the exercise of this option, which may be advantageous to the innocent party, and cannot be prejudicial to the wrongdoer. An argument against Damages. the action before the 1st of June is urged from the difficulty of calculating the damages; but this argument is equally strong against an action before the 1st of September, when the three months would expire. In either case the jury, in assessing the damages, would be justified in looking to all that had happened, or was likely to happen, to increase or mitigate the loss of the plaintiff down to the day of trial."

and servant

It is conceived, however, that in such case if the servant do If not not act upon the master's announced renunciation of the con- brought tract, and before the day arrives for the commencement of the incapaciservice, becomes either by the act of God, vis major, or his own tated master misconduct or misfortune, incompetent or unable to perform his may rescind. part of it, the master would be at liberty to avail himself of

(d) Hemingway v. Hamilton, 4 M. & W. 115. See the pleadings in Mercer v. Whall, 5 Q. B. 447.

(e) Hochster v. De la Tour, 2 E. & B. 678; Avery v. Bowden, 5 E. & B. 728.

Duty of

master to retain servant.

Court of Chancery will not grant injunction to compel master to retain servant.

Stocker v.

those circumstances to rescind the contract, and could not afterwards be sued for a breach of it (ƒ).

It is also the duty of a master to retain the servant during the whole time that he has contracted to do so; and if he dismiss the servant before the expiration of that period without lawful cause (g), the servant may maintain an action against him for such wrongful dismissal.

Where a servant is dismissed by his master during the period of service agreed upon, for alleged misconduct or other cause, the Court of Chancery will not interfere by injunction (h) to restrain the master from so doing, but will leave the servant to his action at law. In a case (i), therefore, in which Lord Cranworth, V. C., granted an injunction to restrain a lucifer match manufacturer from discharging his manager, who was appointed under a Brockelbank. Written agreement, Lord Truro, L. C., on appeal, dismissed the order, saying, "He did not recollect any instance of any attempt on the part of a court of equity to compel the employer to retain the servant, agent or manager, and not to forbear to leave him to his remedy at law. Consider," added his lordship, "what the effect would be; how is it possible for an employer or an agent to go on in the intimate connexion which such a contract is calculated to create? They are to be on the same premises, acting in the management of the same business, in this case, and if there is mutual dissatisfaction, well or ill-founded, it is perfectly clear that a management conducted under such circumstances, must tend very much to the prejudice of the concern in this case, I think, particularly."

Johnson v.
Shrewsbury,

Similar reasons were given by Lord Justice Knight Bruce, in &c. Railway refusing an injunction to restrain a railway company from discharging a contractor (j).

Company.

The nature of the service to be rendered in that case may (without entering into particulars) be described in the words of the first half of the fifth section of the contract, viz., "that the said contractors will from time to time at all times during the term of this contract, run and work all the trains of the railway company, and provide, for the purposes of this contract, a sufficient number of efficient foremen, mechanics, engine-drivers, firemen, cleaners, storekeepers and other persons, and the requisite coke and firewood,

(f) See Avery v. Bowden, 5 E. & B. 714; 6 E. & B. 953; Reid v. Hoskins, 5 E. & B. 729; 6 E. & B. 953; see also Barwick v. Buba, 26 L. J., C. P. 280; Crookewit v. Fletcher, 26 L. J., Exc. 153; Roberts v. Brett, 28 L. J., C. P. 323.

(g) See the preceding Chapter as to what causes will justify the dismissal of a servant.

(h) Where the master is a trustee, however, as in the case of trustees of a school, the Court of Chancery will sometimes, on

a fit case being made out, interfere. See Willis v. Child, 13 Beav. 117; S. C. 20 L. J., N. S., Ch. C. 113, where Lord Langdale, M. R., granted an injunction to restrain the trustees of a charity school from discharging the master; and see Doe v. Willis, 5 Exc. 894.

(i) Stocker v. Brockelbank, 20 L. J., Ch. Cas. 408.

(j) Johnson v. The Shrewsbury and Birmingham Railway Company, 3 De G., M. & G. 914; S. C. 17 Jur. 1015.