The Sun.
London, England, 1853-06-03 00:00:00

QUEEN'S BENCH-(THIS DAY.)

(Before Lord Campbell, Mr. Justice Coleridge, Mr.
Justice Erle, and Mr. Justice Crompton.)

LUMLEY V. GyE-JUDGMENT.

This was an action brought by the former lessee of
her Majesty's Theatre, against the proprietor of the
Covent-garden Opera, recover damages for having
caused Mademoiselle Wagner to break an agree-
ment which she had entered into with the plain-
tiff to sing at his theatre. The defendant demurred
to the plaintiff's declaration, on the ground that an
action would not lie against a person for causing the
non-fulfilment of a contract which had been entered into
by a third party. The Court of Chancery had granted
an injunction restraining Mdlle. Wagner from singing at
Mr. Gye's establishment, and had also given the plaintiff
leave to bring this action. The case was argued some
months ago, and the court had taken time to consider its
decision. As their lordships differed in opinion, judg-
ment was first delivered by
Mr. Justice Crompton, who, after reciting the pro-
ceedings, said it must be considered clearly established
that wrongfully and maliciously inducing or procuring a
servant to depart from a master's service, whereby the
master was injured, was a wrongful act according to the
rule of law relating to masters and servants, and as such
was a good cause of action. He thought that the rela-
tion of master and servant subsisted sufficiently between
Mr. Lumley and Mdlle. Wagner during the time
the contract existed. It was immaterial to con-
sider whether or not she had actually entered into
his service. He saw no reason for confining the
general rule of law as to the illegality of enticing away
servants to employment of any particular description.
It as much applied to the services which were to be ren-
dered by Mddle. Wagner, as to that by apprentices or
other menial servants. It appeared to him that she con-
tracted to render personal services to the plaintiff within
the meaning of the rule, and that the parties were in the
relation of employer and employed, or master and ser-
vant. He, therefore, thought that judgment should be
entered for th© plaintiff.
Mr. Justice Erie said the question raised in the de-
murrer was, whether an action would lie by the proprie-
tor of a theatre against a person who maliciously pro-
cured the entire abandonment of a contract entered into
by another person to perform exclusively at his theatre a
certain time, whereby he sustained damage, and it seemed
to him that it would. The authorities were numerous and
uniform that an action would lie by the master against
a person who procured a servant unlawfully to leave
his service. The principle applied to the present case.
The nature of the services contracted for was immaterial.
He did not think the objection that the contracting
party had not begun her services was a tenable ground
of defence. The breach of the engagement might be
equally injurious whether the services were begun or
not, and, in his opinion, ought to be made equally
actionable where the relation between employer and
employed existed. He considered that the judgment of
the court should be for the plaintiff.
Lord Campbell said, as the case had been argued in
the Bail Court during his absence, he could not, of
course, take any part in it ; but Mr. Justice Wightman,
who was prevented attending by indisposition, and who,
though considerably better, had been ordered by his
physicians to keep his house, had sent his judgment,
and he (Lord Campbell) had been requested to read it.
The noble lord then read the judgment. The learned
Judge (Wightman) dealt with the different points in the
case at considerable length, and concurred, generally, in
the views and opinions of the two preceding judges. He
considered that the plaintiff was entitled to judgment.
Mr. Justice Coleridge said the demurrer raised the
question whether an action could lie against a thii.d
party for maliciously and injuriously enticing and pro-
curing another to break a contract to perform exclu-
sively at his theatre—in the first place, before it came
actually into force ; and in the second, when it was really
in force. In his opinion it did not lie in either case, and that
the defendant was entitled to judgment generally. In
order to maintain that, one of two propositions ought to
be established—either that an action could lie against
any one by whose persuasions the party to the contract
was induced to break it, and thereby damage the
plaintiff ; or, that an action against a person for in-
ducing or persuading a servant to leave his master, and
to enter into the service of another was of so wide an ap-
plication as to embrace one in the position and profes-
sion of Mdlle. Wagner. After much consideration and
inqviry, he was of opinion that neither propositions were
true. The defendant, in his judgment, was not the direct
or proximate cause of the damage which the pl ainiff had sus-
tained. The general rule was to confine the remedy by action
to the contracting party, and to the damages directly con-
sequential of his act. He came to the conclusion, in
the first place, that an action for merely inducing or
procuring a contracting party to break a covenant,
whether he did it maliciously or not, was not tenable ;
secondly, that the common law with regard to the se-
duction of servants from masters was an exception, the
origin of which was known, and that exception did not
reach the case of a theatrical performer. Perhaps it
might be objected that this judgment was conceived in
a narrow spirit, which restrained the full application of
the law in regard to contracts for personal services. He
did not, however, think it was open to that objection.
He saw the danger of establishing, by a judicial decision,
a principle which should extend to all cases. By affirm-
ing more than he had gone the length of doing, he
thought they would strain and weaken the law. He re-
gretted having to differ from his learned brethren, but
notwithstanding the doubts which that circumstance
might naturally raise in his mind as to the correctness
of his opinions, and notwithstanding the novelty and
difficulty of the question, he thought that judgment
ought to be for the defendant, though it must be pro-
nounced for the plaintiff.
Judgment for the plaintiff accordingly.

SPORTING INTELLIGENCE.

TATTERSALL'S-THURSDAY.

A scanty attendance, and only a small amount of
business transacted.
Lady Evelyn advanced in favour for the Ascot
Stakes-5 to 2 was taken to some money. 5 and 6to 1
taken about Nervous, the higher odds being offered at
the close.
Stockwell was at an improved quotation for the
Emperor's Plate, and 3 to 1 was taken about Ted-
dington ; in both cases, however, the outlay was only
moderate.
10 to 1 was taken to 3001. about the Reiver for the
St. Leger ; and 20 to 1 to various small sums about
Verbena colt for the Derby.

ASCOT STAKES.
2 to 1 agst Lord Wilton's Lady Evelyn (t)
6to 1 Mr. Combe's Nervous (t)
Bto 1 General Anson's King Pepin (9 to 1t)
Bto 1 Mr. Osborne's Little Davie (t 10 to 1)
THE EMPEROR'S PLATE.
6 to 4 agst Lord Exeter's Stockwell (t)
3to 1 Mr. J. M. Stanley's Teddington (t)
ST. LEGER.
10 to 1 agst Lord John Scott's The Reiver (t)
DERBY.

20 to 1 agst Lord Derby's colt by Orlando out of
Verbena (t)
25 to 1 Mr. Bowes's Blight (t)
25 to 1 Mr. S. Herbert's Autocrat (t)
40 to 1 —• Duke of Bedford's Hesso Cassel (t)

SETTLING ON THE DERBY AND OAKS.—We have been
informed that some false lights were hung out on the
settling day, and that one or two parties, thought to be
buoyant in safe water, are, it is feared, quite swamped ;
their united liabilities amount to several thousands.
Still, comparatively speaking, we must repeat, the
general settling was remarkably good.
SALE OF MlSELTOE.—Mistletoe was sold yesterday
for 1,110 guineas, and with her engagements too : rather
a stiff price for an animal that was beaten so far for the
Oaks. She will remain in Peck's stable.

NEWTON RACES.—THUBSDAY.
TRIAL HANDICAP of 5 sous• each, with 30 added. One
mile. (11 subs.)
Mr. E. Phillips's Koh-i-noor, 4 yrs, 7st 91b 1
Mr. Barber's Jacob, 3 yrs, sst 41b 2

Lord Chesterfield's Humphrey, 6 yrs, 7st 3
The' following also ran :—lbis, The Evening Star,
Martha (h b).
Betting-6 to 4 agst Humphrey, sto 2 agst Koh-i-
-noor. Won by a length.
GOLBORNE STARES of 10 sous. each, li ft, with 40
added • for 2-yr old colts, Bst 71b ; fillies and geldings,
Bst 411;;
of 100 sovs., 51bs extra. Allowances for beaten horses,
winners of 80 sovs. clear at any one time, 31bs;
not having been placed, and having started twice, 21bs ;
thrice, 51bs ; four or more, 81bs. G-olborne Course.
(13 subs.)
Mr. T. W. Redhead's Barrel 1
Mr. H. Smyth's Bright May 2
Mr. T. W. Park's Mountain Maid
The following also ran :—Kennysido Hero, Czarina,
Oaklands.

HANDICAP PLATE of 70 sovs. One mile and a guar-
,er. (29 subs.)
Mr. Smith's Harp, 5 yrs, 6st 41b
Mr. Phillips's Le Juif, 5 yrs, 7st
Mr. Saxon's Jacob, 3 yrs, 58t,