A master cannot, by writ of habeas corpus, obtain possession of an apprentice in the service of another, unless the apprentice is detained against his will (s).

"If an infant of seven or eight years of age covenant with me to serve, he may depart when he pleases; but if such an infant serve me voluntarily, or by agreement, and a stranger take him from me, or beat him, I shall have a remedy" (t).

If the injuries wrongfully inflicted upon a servant cause his immediate death, the master has no right of action.

The reason of this qualification is very obscure. It was quaintly said by Tanfield, J., in Higgins v. Butcher (u), "That the servant dying of the extremity of a battery, it is now become an offence to the Crown, being converted into a felony, and that drowns the particular offence and private wrong offered to the master before, and his action is thereby lost." There are several objections to this explanation, which was a dictum not essential to the decision of the case. One of these is the fact that White v. Spettigue (x), followed in this respect by Osborne v. Gillett (y), has decided that the rule as to a right of action being suspended in case of felony applies only between the person injured and the criminal; it does not affect a third party, such as the master. According to another explanation, "The master's right to his servant's services is instantly abrogated, and, in the eye of the law, no damage is sustained by him because no right" (s). This reason explains nothing. Does not a right of action accrue to the master between the moment when the injury was inflicted or the wrong done, and the moment when death took place? And, if it does accrue, what becomes of it? (a). Probably the rule originated in a mistake as to the meaning of the maxim Actio personalis moritur cum persona. The existence of the rule has been disputed by some American

(s) R. v. Reynolds (1795), 6 T. R. 497;

Ex parte Gill (1806), 7 East, 376.

(t) Y. B. 21 Hen. VI. 9.

(u) (1606), Yelv. 90.

(x) (1845), 13 M. & W. 603.

(v) (1873), L. R. 8 Ex. 88; Appleby v. Franklin (1885), 17 Q. B. D. 93.

(z) Even in Osborne v. Gillett the rule seems to have been misunderstood.

(a) Nevertheless, it is the explanation which Sir Gorell Barnes, P., inclines to accept in Clark v. London General Omnibus Co., [1906] 2 Κ. Β. 648, 662, on the strength of a passage in the judgment of Gwynne, J., in Monaghan v. Horn (1882), 7 Canada Sup. Court R. 409. The passage referred to is set out in the argument in Clark's Case, ubi supra, at p. 653.

Courts (6). Whatever be its origin, it is in force. It was stated in Higgins v. Butcher (c), and it was affirmed by Lord Ellenborough at nisi prius in Baker v. Bolton (d), decided in 1808. It has found its way into text books (e); it was recognised by the Court of Exchequer (Bramwell, B., dissenting) in 1873 in Osborne v. Gillett (e); and it has recently been re-affirmed by the Court of Appeal in Clark v. London General Omnibus Co., Ltd. (f), where the claim was by a father for damages for loss of service and funeral expenses arising out of the almost instantaneous death of his daughter caused by the defendants' negligence.

There are cases in which the facts may be viewed as constituting a cause of action either in contract or in tort; and a master's or servant's rights of action may depend upon the view taken. In Marshall v. York, Newcastle and Berwick Rail. Co. (g) the plaintiff, a servant, and his luggage were being carried by the defendants on their railway, the master paying the fare. The luggage was lost on the journey; the plaintiff was held entitled to sue the defendants for their negligence, independently of the contract of carriage. Alton v. Midland Rail. Co. (h) seemed to decide that where a servant was travelling, having paid his own fare, and was injured by the defendants' negligence, the master could not recover damages for loss of service, inasmuch as the action lay in contract and the master was a stranger to the contract. But this decision must, in view of recent criticism, be regarded as very doubtful, particularly when it is remembered what the effect of the Judicature Acts has been upon all arguments founded upon the form of pleadings (i). It is commented on in Taylor v. Manchester, Sheffield and Lincolnshire Rail. Co. (k) and Meux v. Great Eastern Rail. Co. (1). In the latter case the plaintiff sued for the value of her footman's livery, which had been destroyed by the negligence of the defendants' servants while in their custody for the purpose of safe carriage. The defendants had received the portmanteau containing the livery from the footman, who was travelling with it, and had taken a ticket as a passenger on their line. The defendants argued

jected: see pt. ii. p. 645.

(g) (1851), 11 C. B. N. S. 655.

(h) (1865), 19 C. B. N. S. 213.

(i) Pollock's Law of Torts (8th ed.), 544-546; Beven's Negligence in Law (2nd ed.), vol. i. p. 211, note 3.

(k) [1895] 1 Q. B. 134, as explained in Kelly v. Metropolitan Rail. Co., [1895] 1 Q. B. 944.

(1) [1895] 2 Q. B. 387.

that the foundation of the claim was the contract of carriage, and that, the contract being between the footman and the company, the plaintiff could not sue; but the Court of Appeal held that she had a good claim in tort, to maintain which she only had to show that the property damaged by the defendants' misfeasance was lawfully on the defendants' premises.

The only answer is that Alton v. Midland Rail. Co. has decided otherwise; but this is not so. When [that] case is looked into, it appears that the sole point which was decided was on demurrer, which raised the question, whether, the servant having contracted with the railway company to be safely and securely conveyed, the master could take advantage of that contract and sue for breach of it. That case is no authority for the proposition that the plaintiff cannot sue in tort irrespective of contract (m).

The judge at the trial seems to have thought that the portmanteau was not lawfully on the defendants' premises, because it was accepted as the servant's personal luggage, whereas it was really the plaintiff's; and the defendants relied upon Becher v. Great Eastern Rail. Co. (n), which decided that a master could not maintain an action for the loss of his portmanteau, which was accepted by the defendants as a servant's personal luggage. But the Court of Appeal thought otherwise; and Kay, L. J., protests against the idea that "when the company make no inquiry as to what is in the portmanteau, but accept it as personal luggage, they should be able to turn round and say, 'The goods were not yours"; but it was not necessary to go that length, because the Court held that the fact of the property being a livery was enough to make it at once the personal luggage of the servant and the property of his mistress. There is no doubt that Becher v. Great Eastern Rail. Co. (n) will have to be reconsidered.

Where a servant had been injured by a collision caused by the negligence of another company than that with which the contract of carriage was made, the master recovered damages for loss of service (o).

(m) Per A. L. Smith, L. J., 1. c. at p. 394.

(n) (1870), L. R. 5 Q. B. 241.

(0) Berringer v. Great Eastern Rail. Co. (1879), 4 C. P. D. 163. See Ames v. Union Rail. Co. (1875), 19 Am. Rep. 426.

APPENDIX.

The following are the chief cases as to actions of seduction :

ACTION.

Terry v. Hutchinson, L. R. (1868), 3 Q. B. 599 (plaintiff's daughter having left her situation was seduced on her way home to her father's house).

Long v. Keightley (1877), 11 Ir. C. L. 221. (Plaintiff's daughter, twenty-four years of age, seduced in the house, and while in the service of, plaintiff her mother. In accordance with a previous arrangement, she left the day afterwards for America; finding herself pregnant, she went to her sister's house, and resided there until after her confinement; subsequently she returned to the plaintiff's house. Evidence to go to jury of loss of service.)