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formation of a company, adopts the character of promoter, "a fiduciary, or at all events a quasi-fiduciary, relation arises between him and the company. He is bound to protect its. interests and those of the shareholders. All his dealings with them and for them should be uberrimæ fidei. He should conceal nothing from them which it is essential to them to know."1 And accordingly a negotiation, carried on between the agent for the purchaser and the vendor as principal in which the agent for the purchaser receives any benefit or advantage from the intending vendor, is prima facie impeachable as a fraud upon the purchaser.2

Where in the course of the winding up of a company under the Companies Acts it appears that any person, who has taken part in the formation or promotion of the company, or any past or present director, manager, liquidator or other officer of the company, has misapplied or retained or become liable or accountable for any moneys or property of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the Court may on the application of the official receiver, or of the liquidator of the company, or of any creditor or contributory of the company, examine into the conduct of such person and compel him to make repayment or restoration, together with interest at such rate as the Court thinks just, or to contribute by way of compensation to the assets of the company such sum as the Court thinks just.3

1 Per Cockburn, C. J., in Twycross v. Grant (1877), 2 C. P. D. at p. 538. 2 Whaley Bridge Printing Co. v. Green (1879), 5 Q. B. D. 109.

3 8 Edw. VII. c. 69, s. 215 (1), re-enacting the Companies (Winding-up) Act. 1890 (53 & 54 Vict. c. 63), s. 10 (1). See In re London and General Bank, [1895) 2 Ch. 673; In re Kingston Cotton Mill Co., [1896] 1 Ch. 6; In re Kingston Cotton Mill Co. (No. 2), [1896] 2 Ch. 279.

CHAPTER XII.

ACTIONS FOR LOSS OF SERVICE, &C.

THE common law allowed an action on the case to be brought by a master or other person entitled to the services of another against any one, who without just cause induced that other to quit the master's employment or by wrongful assault or imprisonment prevented him from performing such services. This rule was not restricted to cases in which the parties were strictly master and servant, or in which the services were due under any contract; it applied wherever the right to such services was one recognised by law or arose naturally out of the relationship between the parties.' Thus, a parent has a right of action for personal injury to his child or a master for the battery of his servant, if he is thereby deprived of the help and comfort to which he is entitled.

"If a servant is beat, the master shall not have an action for this battery unless the battery is so great that by reason thereof he loses the service of his servant; but the servant himself for every small battery shall have an action; and the reason of the difference is, that the master has not any damage by the personal beating of his servant," but by reason only of its consequences, viz., the loss of service; "for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action." Nor can the master sue in respect of a bodily hurt done to the servant causing his immediate death.3

Hence whenever the relation of master and servant exists, an action will lie against any one who, knowing of that relation and without just cause or occasion, induces the servant to break his contract and leave the plaintiff's employment to the injury of the plaintiff; or menaces and threatens the plaintiff's

1 See Jackson v. Watson & Sons, [1909] 2 K. B. 193.

2 Per cur. in Robert Marys's Case (1612), 9 Rep. at p. 113 a.

3 Osborn v. Gillett (1873), L. R. 8 Ex. 88; followed in Clark. Loudon General Omnibus Co., Ltd., [1896] 2 K. B. 648.

B.C.L.

36

workmen, so that they leave their work, and the plaintiff is thereby prevented from selling his goods. Such menaces may be open or disguised; they need not be threats of personal violence-threats of serious annoyance and damage will be sufficient and they may be addressed either to the servant himself or to his wife or even to his children; '' and in considering whether coercion has been applied or not, numbers cannot be disregarded." So, too, an action will lie against any one, who knowingly and without just cause or occasion harbours the servant and takes him into his own employ during the agreed term of service, whereby the master is injured. The rule is not restricted to menial or domestic servants; it applies to any one who has contracted for personal service for a definite period and who during such period has been wrongfully incited and procured to abandon such service to the loss of the person whom he has contracted to serve. For this injury an action is maintainable against the wrong-doer, though the master may also have an action against the servant for breach of contract.

3

A servant, on the other hand, may have an action for loss of employment against any one, who without just cause or occasion induces his master to dismiss him from his service. This is not so unless the discharge by the master constitutes a breach of the contract of employment. The servant must show that damage has ensued to himself by reason of the master's breach of contract, and that such breach of contract was the direct result of the defendant's interference. There is authority for holding that an action will also lie for maliciously inducing a person to abstain from entering into a contract to employ the plaintiff, if loss thereby ensues to him; but the law on this point is far from clear.* It is not actionable for A. merely to induce B. not to enter into a contract with C. But in cases outside the Trade Disputes

1 Garret v. Taylor (1621), Cro. Jac. 567; and see Springhead Spinning Co. v. Riley (1868), L. R. 6 Eq. 551.

2 Per Lord Lindley in Quinn v. Leathem, [1901] A. C. at p. 540.

3 Lumley v. Gye (1853), 2 E. & B. 216; Evans v. Walton (1867), L. R. 2 C. P. 615; Bowen v. Hall (1881), 6 Q. B. D. 333; Fred. Wilkins & Bros., Ltd. v. Wearer, [1915] 2 Ch. 322. As to the measure of damages in an action for enticing away the servant of another, see Gunter v. Astor (1819), 4 Moore, 12.

4 Temperton v. Russell and others, [1893] 1 Q. B. 715; but see Allen v. Flood, [1998] A. C. 1.

Act, 1906,1 it is an actionable wrong for A. without lawful justification by threats, intimidation or violence to prevent B. from contracting with C. In such cases it is actionable for A. and others unlawfully to conspire to prevent B. from contracting with C.2

By virtue of the Trade Disputes Act, 1906,1 the law has now been altered in the case of any act done "in contemplation or furtherance of a trade dispute." A trade dispute is defined in the Act as "any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of the employment or with the conditions of labour of any person." The Act declares that "an act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills; "+ and further that an act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable."5

Another illustration of the same principle is the action of seduction, which is brought not for the wrongful or immoral act of the defendant, but for the loss of the services of the person seduced. It is in theory, at all events-an action brought by a master against a person who has wrongfully deprived him of the services of his servant, and so occasioned him loss or inconvenience. As a matter of fact, however, the action is generally brought by a parent for the loss of the services of his daughter. These may be of but little pecuniary value to the parent, but the jury is allowed to

1 6 Edw. VII. c. 47.

Quinn v. Leathem, [1991] A. C. 495; South Wales Miners Federation v. Glamorgan Coal Co., [1905] A. C. 239; Giblan v. National Amalgamated Labourers' Union, [1903] 2 K. B. 600,

3 6 Edw. VII. c. 47, s. 5; and see 9 & 10 Geo. V. c. 69, s. 8.

4 S. 3.

5 S. 1.

take into their consideration all the circumstances of the case and to award the parent damages for the immoral conduct of the defendant, although this is strictly no part of the cause of action. The action lies whenever the defendant has deprived the plaintiff of the help and assistance which he was entitled to receive from the person seduced. The relationship of master and servant must, however, exist between the plaintiff and the girl seduced at the time both of the seduction and of the subsequent confinement; without the former there is no injuria, without the latter no damnum.' The girl herself has no right of action, as she was a consenting party.

It is essential, however, that the father should show that his daughter was in the habit of rendering him some personal assistance or took some part in the daily work of the household, and that she was prevented by her confinement from continuing to perform such services, or that she deserted her home at the instigation of the defendant. If the daughter

was not residing at home but was in the employ of a third person at the time of such confinement or desertion, only that third person can sue; for the loss of service falls only on him. It cannot be denied that this state of the law occasionally works great hardship, as such third person generally refuses to sue. And where the girl was at the time of her confinement in the service of the seducer himself, no action can be maintained. On the other hand, our Courts accept slight evidence of loss of service as sufficient to support the action; and when once that foundation is laid, they allow all the circumstances of the case to be taken into consideration in calculating the amount of the damages. This amount is not in any way regulated by the smallness of the service which the parent has lost.

2

3

A similar action formerly lay at common law at the suit of a husband for the abduction of his wife, per quod consortium amisit; but its place is now usually taken by an application for a writ of habeas corpus, or by a claim for damages against a co-respondent in the Divorce Court.

1 Davies v. Williams (1847), 10 Q. B. 725; Peters v. Jones, [1914] 2 K. B. 781. Whitbourne v. Williams, [1901] 2 K. B. 722; Dent v. Maguire, [1917] 2 I. R. 59. 3 See Hall v. Hollander (1825), 4 B. & C. at p. 663, and post, P. 1282 et seq.

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