bird v randall SC ante No action lie for seduce a servant from his master who  have pay the penalty stipulate by his article for leave he this case be again  argue by Norton solicitorgeneral for plaintiff and Morton for defendant who  argue that if this action will lie action will lie for seduction during the  whole time original specify in the article and yet nobody can be now guilty of  seduction as the service be at a end by agreement and be cite cro Elizabeth  hut cock and jenner hob Lord Mansfield CJ there be two question in this case  saint whether in case the have be actual pay to the plaintiff before the  commencement of this action be can then have maintain it dly whether the  payment of it after the commencement of this action and before the trial make  any and what difference be it in respect to the first we must consider the  true construction of all article guard with a penalty upon these there be two  remedy to be pursue at the option of the party injure he may as often as the  article be break have so often how often a equitable relief upon the foot of  the article themselves for a partial breach of contract if the servant absent  himself a week or a month the master Blackstone er p may recover a  proportionable satisfaction in damage but there be beside another remedy give  in terror by way of punishment beyond the value of the injury do and  Blackstone therefore call a penalty it carry with it a more than equitable  satisfaction give to the party who will rigorous insist upon it this give rise  to many suit in equity to relieve against the penalty and when equity consider  it only as a security to enforce the performance of the thing it will relieve  against it when as a rigorous punishment it will not then interpose but when a  man once take the penalty be total discharge the other party from any future  obligation and have recover all that he can ever claim under the article the  article be go and absolute determine in the present case the master have elect  the penalty the servant can return again and therefore there be a total end of  the article as between the master and servant as to the seduction a bare  solicitation to leave the master be doubtless no cause of action it be the  actual injury sustain that ground the suit for the servant may be unable to  pay the damage and therefore the law subject the seducer but here there be no  injury remain the whole be do away by the exaction of the penalty otherwise it  will be add to the penalty beyond the agreement of the party the penalty be  the state ground whoever take another man servant under fetter always estimate  what he must pay for the purchase of such service and virtual deduct it out of  the servant wage he compute that without pay such a penaltybe can afford to  give the servant more if he pay it he must give he less therefore we be all  clear of opinion that if the have be pay before the action bring no action can  possible lie against the present defendant dly as to the second point there be  no analogy between this case and action upon trespass or joint contract  trespasser be all equal principal in joint contract all be bind to answer in  solidun and the party may take out execution against one only and have only  one satisfaction thev be also formal precise action which be to draw tight law  this be a action upon the case which I have often observe be almost equivalent  to a bill in equity whatever appear upon the trial that take away Blackstone  the equity will take away the remedy d the plaintiff must recover out of the  justice of his case as at the trial it appear that the money have be pay  theref over the action appear to have be bring against conscience there be a  collusion in the lie by after judgement against Burford before be receive the  money he bring his action against Randall and after have bring the action then  he receive the money suppose a man bring a action on the case for good sell  and two day after bring it be receive the money I shall have no doubt if this  appear at the trial that he shall not recover we be all therefore of opinion  that this circumstance have make no difference in the case the court on motion  will have stop the action e on show the money pay postea deliver to the  defendant with judgement of nonsuit thereupon d a matter of defence arise  after the commencement of the action and before plea plead can be take  advantage of on the general issue and if plead it can be plead general with a  prayer of judgement if the plaintiff ought to have or maintain his action but  it shall be plead in the nature of a plea puis darrein continuance and pray  judgement if he ought further to main his action if such matter arise after  plea plead then it be the subject of a plea puis darrein continuance for  action non go to the commencement of the action and not to the time of plead  though the contrary be hold by ld Mansfield in Sullivan v Montague Doug a plea  of setoff that the plaintiff be indebt at the time of the plea plead be bad it  shall state that he be indebt at the commencement of the action and buller I  say that a judgement recover after action bring and before plea plead can not  be plead by way of setoff Evans v Prosser TR if a plaintiff become alien enemy  after the commencement of the action but before plea plead that fact ought to  be take advantage of in strictness by a plea in the nature of a plea puis  darrein continuance Le bret v Papillon east but in that case the court look at  the whole record give judgement for the defendant yet a bankrupt certificate  allow after the fill of the plaintiff bill and before plea plead be evidence  to support the general plea of bankruptcy I e where the bankruptcy arise  before action bring Harris v James east see also Blackstone er p Kinnear v  Tarrant east tower v Cameron east as to plead bankruptcy where the provisional  assignee of a bankrupt estate commence a action and the estate be then assign  by he to new assignee after the issue of the latitat but before declaration  and the defendant plead the general issue it be hold that such assignment be  no answer to the action upon that plea but the court intimate that it may have  be plead special and Abbott CJ say the rule be that the plaintiff shall  recover where the general issue only be plead if it appear that he have a  cause of action at the time of issue the writ page v Bauer b a so coverture  arise after the writ issue can be give in evidence but must be plead in  abatement Morgan v painter TR see also hull v Pickersgill I Brod b b more S c  e where a b recover in separate action for libel against two person concern in  the same publication and then commence fresh action against the same party  each sue that party against who the other have recover in the former the court  will not interfere in a summary way to stay the latter proceed Martin v  Kennedy Bos p