Haight vs. Badgeley and wife, 15 Barb. 499

By the Court, Hand, P. J. In this state, a contract for the personal services of an adult, as a general thing, is a matter for courts of law : and for a violation of it, the remedy is in damages ; and a specific performance will not be enforced. (Hamblin v. Dinneford, 2 Ed. Ch. R. 529. Sanquirico v. Benedetti, 1 Barb. S. C. R. 315. Corsetti v. De Rivafinoli, 4 Paige, 264. Kemble v. Kean, 6 Sim. 333. Clarke’s case, 1 Blackf. 122. Smith v. Gould, 2 Ld. Raym. 1274. 2 Kent, 258, n.) No absolute property can in this state be acquired in the person or personal services of an adult, by an executory contract.

Nor have we, and probably we never shall have here, criminal proceedings to enforce such a contract of hiring, as in England, (See 11 Q. R. Rep. 455; 9 Id. 80,92 ; 5 Id. 926,933; 14 East,-605 ; 2 Toml. L. D. 378; 3 Id. 454; 15 Vin. 317.) But, unless there is something in the genius of our institutions that renders the law of the mother country inapplicable, it is here, as there, actionable, to entice from the service of another, one who is in the employment of the latter, under a contract not fully executed. (Cowen’s Tr. 361. 3 Bl. 142. F. N. B. 167. Hart v. Aldridge, Cowp. 54. Reg. v. Daniel, 1 Salk. 380. S.

C. 3 Id, 191. 2 Ld. Raym. 1116. 2 Sel. N. P. 291. Blake v. Lanyon. 6 T. R. 221. Reeve’s Dom. Rel. 376. Scidmore v. Smith, 13 John. 322. Dubois v. Allen, Anthon, 94. James v. LeRoy, 6 John. 276. 2 Sel.N. P. 291. Boston Glass Man. Co. v. Binney, 4 Pick. 425, Nichol v. Martin, 2 Esp. R. 732. King v. Higgins, 2 East, 5. Bird v. Randall, 3 Burr. 1345. S. C. 1 W. Bl. R. 373, 387. Gunter v. Astor, 4 J. B. Moore, 12. And see Woodward v. Washburn, 3 Denio, 369.) This right of action may have had its origin in English statutes. (F. N.

B, 169.) However that may be, it is familiar law in England, and does not seem to have been overruled here. But I do not put this decision on that ground, nor give any definite opinion, for it is not necessary to decide that point in this action, which is for breaking and entering the close of the plaintiff, and there enticing his servant to leave his employment. The gravamen of the complaint is trespass domnm f regit, and the persuasion of the servant is matter of aggravation. This the defendants deny in general terms, and also, as matter in justification, plead that they went there to see the girl Catharine.

And it is contended that there is an implied license in such cases ; and here also, license in fact. I find no evidence to sustain an implied license. It was not proved that the. parties were even neighbors. On the contrary, it would seem from the testimony,-that they were not. It was not proved that they were acquainted before the alleged trespass ; or that either of the defendants had ever been there before. Nothing appeared from which we are authorized to presume that familiar intimacy from which perhaps in some cases, a license can be implied.

And certainly, the law gave the defendants no right to enter the kitchen of the plaintiff unbidden, to entice away his servants. Nor does the return contain evidence of an express license. It has been held that a servant cannot give such license. Holdringshaw v. Rag, Cro. Eli. 876.) And, indeed, the same as to the power of the wife. (Taylor v. Fisher, Cro. Eliz. 246.) But however that be, there is no proof of such license in this case.- The defendant, Mrs.

B. as I understand the testimony, when first discovered, was in the house ; and on being invited into the room where the wife of the plaintiff then was, by his daughter, instead of accepting the invitation, she went into the kitchen, shutting the door in the face of the latter. Even if she stood at or without the door when invited, and if the daughter had authority, she did not enter the house in pursuance of that invitation-Several times after that, she was found in the kitchen with the girl.

And according to the statement of the answer, the plaintiff, so far from consenting to all this, used strong and harsh language to the defendant Mrs. B. Besides, no license was pleaded. Even under the old system license must have been pleaded in trespass, and could not be given in evidence under the general issue. (1 Chilty Bl. 340, 433. Bennett v. Allcott, 2 T. R. 166. Cowen’s Tr. 697.) The damages are said to be excessive, particularly as the servant did not, in fact, leave before suit; but was permitted to-continue in the service of plaintiff for a time.

I doubt whether the county court can reverse a judgment for that cause alone, In an action of trespass, unless the verdict is so outrageously excessive as to evince partiality, prejudice, or passion. (Gra. on N. Tr. 434.) But if it can, we cannot say in this case they are excessive. In Gunter v. Astor, (4 J. B. Moore, 12,) although the workmen were engaged by the piece, the recovery was nearly $8000.

The jury, no doubt, were good judges of the matter, and probably thought, as did the great commentator on the laws of England, that this was “ an ungentlemanlike,” (or unlady like) act, as well as illegal, (3 Bl. 142;) one calculated to produce ill blood, and disturb the peace and quiet of families, besides violating the plaintiff’s legal rights. And upon the whole, I think the defendants must be satisfied with their verdict. [Washington General Term, May 2, 1853. Rmd, Cady and. C. L. Allen, Justices.] Judgment of the county court reversed, and that of the justice afiirmed, with costs.