bird versus randall Tuesday that Nov SC Bl Rep no action lie for seduce a  servant from his master who have be pay the stipulate penalty for leave he see  vin title bar b Bosanq see Voight v winch barn Ald Brunsden v Humphrey Q b d  this be a case reserve at nisi prius at guildhall upon a trial before Lord  Mansfield in a action upon the case wherein a verdict be give for the  plaintiff and twenty pound damage assess but burrow subject to the opinion of  the court upon a case state the substance of the case state be short this the  plaintiff bird and one mary Hogg be silkdressers and partner in trade and  article of agreement be enter into between the plaintiff bird and one Burford  date that of August whereby Burford covenant with bird to serve the plaintiff  bird and the say mary Hogg and the survivor of they as a journeyman in their  say trade and business of silkdressers for five year from the date and to work  at the usual and accustom house daily and not to discover the mystery of the  trade or the secret of the plaintiff and his say partner and bird covenant to  pay Burford weekly twenty shilling a week for his work and for the true  performance of all and every the covenant and agreement contain in the article  each party bind himself to the other in the penalty of one hundred pound the  case then go on and state that Burford accord enter into the say V Mr I foster  be absent burrow er p service under the say article and that he continue  therein until the that of September when the defendant know of the say article  persuade procure and entice he to depart from and out of it and he accord do  so and never return again into it it further state that the plaintiff bird in  Trinity vacation and before the commencement of the present action against  Randall bring a action of debt against Burford for the penalty of one hundred  pound for his depart out of the say service and obtain a verdict and judgement  against he in the say action and recover the say money with cost but the say  money the debt and cost so recover be not actual pay to he by the say Burford  till the that of march which be after the commencement of the present action  but before it come on to be try the present action which be a action of  trespass upon the case be bring by the same plaintiff bird against the present  defendant Randall for the entice and seduce the say Burford out of the  plaintiff service the question be whether the present action be maintainable  or not under the circumstance of this case it be first argue on Tuesday d of  June by Mr stow for the plaintiff and Mr Ashhurst for the defendant and again  on Friday the that of this month burrow of November by sir Fletcher Norton  solicitor general for the plaintiff and Mr Morton for the defendant upon the  first argument the court do not declare any opinion but only throw out some  doubt by way of break the case and desire to hear it argue again Mr solicitor  GeneralThe question be whether the plaintiff who have already recover the  penalty against the servant can bring this action against the seducer he agree  that if the plaintiff have once receive a full satisfaction for the same thing  he can not recover a second and also that a recovery of a penalty upon a deed  be a full bar to a action to be bring upon that deed but he say it must be  allow to he that the party to who the deed be make may bring either covenant  or debt at his election and that a jury in a action of covenant even upon such  a deed where there be a penalty be not confine to give damage within the  penalty but may go beyond it he repeat his concession that a person who have  once recover a full and complete satisfaction from one man shall not recover  it again against another for the same thing as upon endorse note or upon  trespass commit by several person or upon a rescue and escape or the penalty  on breach of a covenant in a lease or in a action of waste but he deny that  here have be a full satisfaction or recompense for the same thing a seduction  of a covenantservant be undoubted a good cause of action against the seducer  and it arise ex fault ex crime but the ground of action against the servant  himself arise ex shrinking therefore a recovery in a action for a breach of  contract against one person can be a bar to a action against another for a  tort bar must be reciprocal but the servant in a subsequent action against he  can not have make use of a recovery against the seducer neither therefore  ought the seducer to make use of the action against the servant it be not a  full satisfaction accord to the circumstance of the case burrow if a offender  in perjury be punish that shall not hinder the suborn from be punish too the  action against the servant and that against the seducer be to visit to look  upon and the recovery in one can not be a bar to the other there be case to  this effect though not in point in case of a action bring against I by the  instigation of a three person or of a violation of my property I may have a  remedy not only against the injurer but also against the instigator alein  Newman v Zachary c and a case there put by hale of slander of title where the  person who title be slander shall have a action against he that cause the  disturbance though he have a remedy against the trespasser a recovery be no  bar unless it be a recovery of the same thing a satisfaction for the very same  injury so it be on note of hand so on tort it must be the same trespass  whereas here the case of the two defendant the servant and the seducer be very  different the injury be different injury burrow er p beside at the time of  bring the present action there be no actual satisfaction have for though there  be judgement there be no execution therefore it ought to have be plead but  what have arise since the commencement of the action can not be give in  evidence in bar of it though it may in mitigation of damage and they have have  the benefit of it in mitigation of damage it have be say that this be damnum  without in an unjust manner which I deny for damage be here prove and if they  have not the law will imply a injury whether it can have be direct prove or  not it be not like erect a new building so as to stop the light of a house  here the seduction itself be a wrong and a injury to the master it have be say  that the servant be only liable to one hundred pound penalty after pay which  any man may hire he to which I answer he can not do it while the servant be  under the unexpired contract with the former master burrow Mr Morton contra  for the defendant argue that the recovery against Burford the servant be a  full and complete satisfaction for the injury do to the plaintiff and he have  make his election to bring his action against Burford for the penalty which be  the stipulate quantum of the damage for the breach of the contract and can not  be exceed it be like a nomin pnae for blow up swerdland and Burford can not  have be relieve against the penalty recover neither can bird have any further  satisfaction he have already receive all the satisfaction stipulate and he can  show any further damage in trespass there shall be but one satisfaction for  one injury though several party be concern in do the injury a recovery against  one of the trespasser or a release to one of they will be a bar hob cock v  Jennor be full and clear to this purport this have no analogy to criminal case  which be only for example not for satisfaction therefore it be not applicable  to the case of subornation of perjury it be like the case of escape in cro  Elizabeth Salteston and Offely v pain where satisfaction acknowledge upon  record be a bar to the sheriff action against the defendant who escape so  rescuers shall pay nothing where the debt be receive which he infer from  Conghams case in Hutton so here the stipulate damage be receive the plaintiff  can have no second cause of action ex crime I do not see how trespass can lie  against the instigator of a trespass for all be principal in trespass in  slander of title a man suffer a general loss superadd to the particular damage  by the ejectment in the cite case from alein there be defamation as well as  loss and beside there do not appear to have be any other satisfaction whereas  here have be other satisfaction receive upon Mr solicitor reason the plaintiff  may recover against several person who may successive have employ Burford it  be not necessary to plead this any thing may be give in evidence which show  that there be no cause of action in the plaintiff burrow on the follow day  Saturday that November Mr solicitor general proceed to reply he agree that as  between the master and the servant the plaintiff have receive satisfaction  from the servant and he suppose though he know no case to prove it the master  can not proceed further against he upon the covenant at large after have elect  to take the penalty but this be no satisfaction for the wrong do to the master  by Randall as to the case of coke v Jennor a satisfaction be receive and a  release be give to the jointtrespasser for the very same trespass but in the  present case there be no actual satisfaction real receive at the time when  this action be bring and the mere recovery be not alone and of itself a bar  this case essential differ from all those case where the same thing have be  recover which be the case of joint tort and joint contract there it be the  same individual injury the very same thing for which the damage be recover  therefore the plaintiff ought not to recover twice though he proceed by  different species of action here it be the seduction itself that be the gist  of the action and not the consequence of the seduction the damage arise out of  the nature of the action burrow er p the nature of the case imply a damage  though perhaps none can be prove or even though the servant be a very bad one  the consequential damage may be more or less accord to the circumstance of the  case but some damage there must be however small as to Mr Morton objection I  that upon the principle above lie down on the part of the plaintiff the  plaintiff may receive several satisfaction from several person who may employ  the servant during the unexpired term `The answer be future employer of the  servant will not be liable because they will not take he out of the plaintiff  service but out of another person but this defendant seduce he out of the  plaintiff actual service as to the case cite from Hutton and cro Elizabeth he  do not deny the principle and doctrine of they but they be not applicable he  say to the present case burrow suppose the master have forgive the servant or  accept a private voluntary satisfaction from he yet he may have bring a action  against the seducer and that satisfaction receive from the servant can not  have be plead in bar nor can it have be give in evidence in bar of such action  against the seducer here be a good cause of action at the time when the action  be bring for the plaintiff have not then receive any thing from the servant  and the mere recovery can not be give in evidence upon the general issue the  court take time to consider till this day and now Lord Mansfield deliver the  resolution of the court he previous observe that it do not appear upon the  case state that the plaintiff be under any difficulty of receive the money  recover from Burford this case turn he say upon two point first whether the  plaintiff can have maintain this action against the defendant for seduce his  servant if the penalty before recover by he against the servant himself have  be actual receive by he before the commencement of the present action against  the seducer dly if it can not then whether his have receive it subsequent to  the commencement of the present action be such a circumstance as will vary the  case so as to entitle he to maintain his action which he can not have maintain  if the actual receipt have be prior to the commencement of it in the first  place therefore he will consider the nature of these article and of all other  article with penalty annex to the breach of they in every case of article with  a penalty the party injure may if he choose it have a equitable relief so  often and so far as he suffer injury b he may recover partial damage upon  partial breach proportionable to the respective injury do he as often as the  injury be repeat he may do this so often how often so in the present case the  master may have do if the servant have leave his service several different  time for a short space of time as a week or a fortnight or month burrow at  each departure and have every time return again to his service he may upon  this equitable remedy have recover partial damage against the servant for each  breach of his contract in proportion to its degree but not beyond it and for  civil injury a man ought not in point of justice to recover more than in  proportion to what he have actual suffer beside this equitable relief there be  in these case a further election give to the party injure to proceed by the  top law and by a rigorous remedy for the penalty which be intend in terror and  by way of punishment for break the contract which rigorous remedy may be take  for a very slight breach and include the idea of more than the damage actual  sustain certain not of less but this rigorous remedy can not be repeat for the  penalty extend to the uttermost farthing that can ever be recover for all and  every of the breach c and when the party injure have once get all that he can  b entitle to have for every breach there be a end of the article and  consequent of all further remedy upon they it be candid agree at guildhall by  the counsel on the part of the plaintiff b Lord raym ace pale yellow Rep c vin  burr durn burrow er p that after the penalty have be so recover against the  servant the servant himself be total at liberty to go into what service he  please and so also be the master at liberty and quite free from the article  with respect to the servant for there be a total end of the contract as  between they two then how will the case stand as to the seducer it be actual  injury do to the master that give he the action against the seducer a bare  attempt to seduce without any damage follow upon it will not be a injury to  the master and consequent will be no ground upon which he can maintain a  action here be no injury at all do to the master for he have recover and  receive a complete satisfaction and more therefore all the injury be do away  and be as if it never exist c a penalty in the very term include more than the  real damage actual suffer and if the seducer or second master who employ the  servant after the servant have pay the penalty be to be liable to damage in a  action bring by the first master for so do this will final fall upon the  servant and in effect be a addition to the penalty for the second master will  pay the servant for his service no more than he estimate burrow it to be worth  to he and if he must pay a sum of money for instance to the first master for  damage for entertain his servant he will make his bargain with the servant in  such manner as to pay he so much the less therefore there be no colour for the  plaintiff to maintain his action upon this first point videlicet upon  supposition of his have actual receive the penalty of the servant before the  commencement of his action against the second master as the seducer of his  servant d point but take it as this case be that he have not actual receive it  of the servant till after the commencement of the present action let we see  whether this circumstance will vary the case several argument be draw by the  counsel for the defendant from case of jointtrespassers and jointcontracts  which be urge as be applicable to the present question but they be sufficient  answer by Mr solicitor general there the recovery be against they all for the  same thing and there be no analogy at all between those case and this in those  case there be a recovery of the selfsame thing for a joint injury the  defendant be all of they liable to the plaintiff and he may proceed against  any or all of they if he please as it be but one trespass one contract and all  be liable yet he shall have but one satisfaction from they all another  essential difference between those case upon tort and action upon the case be  that those be action to draw tight law and therefore such a former recovery  release or satisfaction can not be give in evidence but must be plead but a  action upon the case be find upon the mere justice and conscience of the  plaintiff case and be in the nature of a bill in equity and in effect be so  and therefore such a former recovery release or satisfaction need not be plead  but may be give in evidence for whatever will in equity and conscience accord  to the circumstance of the case bar the plaintiff recovery may in this action  be givenin evidence by the defendant because the plaintiff must recover upon  the justice and conscience of his case and upon that only whether he can have  recover in a action commence against the present defendant after have burrow  recover the penalty from the servant but without have actual receive the money  so recover from the servant I will not now determine I shall have doubt of it  extreme but here the penalty recover by he from the servant be actual receive  by he before the present action come on to be try without any sort of  difficulty he may have receive it when he will but he choose to lie by till he  have bring his action against a three person who will not have be liable to  any thing if the plaintiff have receive the money of the servant in due time  and then receive it of the first defendant and afterward proceed in this  action to recover it against the second defendant which be against conscience  therefore in such a action as this be a action of equity not a form action to  draw tight law it be enough if it appear upon the evidence that the plaintiff  ought not in conscience to recover it if he have actual recover it through the  defendant not know that the penalty have be pay a action will lie against he  for money have and receive burrow er p like the case out of the court of  conscience not long since determine in this court as the plaintiff have  already receive from the servant more than ample satisfaction for the injury  do he he can not afterward proceed against any other person for a further  satisfaction and my brother denison suggest to I that the court will upon the  application of the present defendant by way of motion have stay the plaintiff  proceed further against he upon the defendant show they that the plaintiff  have actual receive the money recover by he in his former action against the  servant per cur lei the postea be deliver to the defendant