induced her to break her engagement, and to enter his employment; and Lumley sued Gye for enticing her away. The court held that the action would lie. (a)

2. By a personal injury whereby the master is deprived of the services of the servant. Illustration. Frederick Berringer, an infant, travelled by the Tilbury and Southend Railway from Fenchurch Street to Stepney Junction, where the train came into collision with a train belonging to the Great Eastern Railway, through the negligence of the latter company. Frederick Berringer was injured, and his father sued the Great Eastern Railway for the loss of his son's services. [See post.] It was held that he was entitled to maintain the action.(b)

Provided that the injury to the servant is the result of a pure tort; and does not arise out of a breach of contract.

Illustration. Alton, whose servant, Baxter, was injured when travelling on the Midland Railway, sued the company for the loss of Baxter's services, resulting from the company's breach of their contract to carry Baxter safely and securely. The court held that Alton could not recover, as there had been no contract between him and the company; and the company had been guilty of no breach of duty towards

(a) Lumley v. Gye, 2 E. & B. 224; Evans v. Walton, L. R. 2 C. P. 615; Bowen v. Hall, 6 Q. B. D. 333 (C. A.).

(b) Berringer v. Great Eastern Railway Company, 4 C, P. D. 163; Gray v. Jeffries, Cro. Eliz. 55.

Alton, but only towards Baxter, who was

no party to the action.(c)

3. By the seduction of a female servant [for by reason of her pregnancy, the master loses the benefit of her services.]

[NOTE. Theoretically Theoretically a parent has a legal right to the services of his child, and if this relation is interfered with by reason of a daughter's pregnancy, he will be entitled to bring an action for damages against the seducer. Provided

(i) The daughter was living with the father at the time of the seduction.(d)

(ii) Some service is proved, however nominal, [such as making his tea in the morning, or milking his cows.(e)]

(iii) The seduction has resulted in pregnancy.(f)

But though the gist of the action is loss of

service, the parent in an action for the seduction of his daughter may recover damages for the injury his feelings have sustained.(g)

§ If the child is incapable, by reason of its tender years, from performing any service, the parent cannot maintain an action.

Illustration.

Hollander drove against, and injured Hall's child. In an action by the father against Hollander, it was proved that the child was only 23 years old, and the court held that the action

(c) Alton v. Midland Railway Company, 34 L. J. C. P. 292.

(d) Davies v. Williams, 10 Q. B. 728.

(e) Thompson v. Ross, 5 H. & N. 16; Bennett v. Alcott, 2 T. R. 168. (f) Eager v. Grimwood, 1 Ex. 61.

(g) Elliot v. Nicklin, 5 Price, 641.

would not lie, as by reason of the child's age no service could be presumed. (a) |

§ The master may, if he please, waive the tort, and sue in contract for the wages earned by an apprentice from the person who has enticed him away.(b)

IV. OF THE DOMINION OF PARENTS OVER THEIR CHILDREN. § A FATHER has, at common law, the exclusive right to the custody of his legitimate children from birth to the age of 21.(c)

§ THE CHILDREN

may, however, on attaining the age of sixteen, choose for themselves with whom, and where, they will live.(d)

[NOTE. By Criminal Law Amendment Act, 1885, 48 & 49 Vict. c. 69, s. 12, where the prostitution or seduction of a girl under the age of sixteen has been caused or encouraged by either of the parents, the court may divest them of their authority, and appoint another person guardian of the girl until she attains the age of 21. 7

$ THE MOTHER has, at common law, no right to the custody of her children, however young, as against the father. Illustration. De Manneville, a Frenchman, married an Englishwoman, and had by her one child. Shortly after the birth of the child she separated from her husband on account of his ill treatment of her, and took the child with her, which she was nursing at the breast. When the child was eight months old the father got into the house where she was, forcibly took the child from her breast, and removed it, half naked, in an open carriage. The

(a) Hall v. Hollander, 4 B. & C. 660.

(b) Foster v. Stewart, 3 M. & Sel. 191.

(c) Cartledge v. Cartledge, 31 L. J. P. & M. 85 ; see Agar-Ellis v. Lascelles, 24 Ch. D. 317.

(d) Ryder v. Ryder, 30 L. J. P. & M. 44.

mother obtained a writ of habeas corpus, directing her husband to produce the child in court, with a view to its restoration to herself. But the court held that they had no power to deprive the father of his right to the custody of the infant, in the absence of any ground for believing that such custody would be prejudicial to the child's health or liberty.(e) [NOTE.

But if the father is dead, or convicted of felony, the court will grant the mother a writ of habeas corpus, to give her the custody of her child up to the age of sixteen.(f)]

§ THE COURT will compel the mother, or any other person, to restore children to the custody of the father.

Unless

1. He is guilty of, or it is apprehended that he will
be guilty of, gross cruelty to his child ;(g)

2. The infant is of an age to elect for himself ; (h)
3. The father's conduct is such, that it is essential
for the child's safety and welfare, physical,
intellectual, or moral that his right should be
suspended.(¿)

Illustration. Alfred Goldsworthy applied to

the Queen's Bench for a writ of habeas corpus to his wife and her father for the production before the court of his infant son, Alfred Ernest, in order that he might be restored to the custody of his father, Mrs. Goldsworthy having left her home and taken her child with her. Mrs. Goldsworthy

(e) Rex v. De Manneville, 5 East, 221.

(f) Ex parte Bailey, 6 Dowl. P. C. 311; and see also "The Custody of Infants

Act," post, p. 290.

(g) Re Andrews, L. R. 8 Q. B. 158.

(h) Rex v. Delaval, 3 Burr. 1435.

(i) Ex parte Fynn, 2 De G. & Sm. 474; Re Curtis, 28 L. J. Ch. 458.

U

resisted the application on the ground that her husband was constantly intoxicated, and habitually made use of filthy and disgusting language to her in the presence of her son, who had learnt much of the bad language from the father. The court refused the writ on the ground that the elementary morals of the child were in serious danger from the father's misconduct.(a)

[NOTE. But the court is always reluctant to interfere with the rights of the father.(b)]

§ THE COURT may, in its discretion, on the application of the mother, order that she may have—

1. Access to her child at such times as the court may

deem fit;

2. The custody of the child up to the age of sixteen, or

to such age as the court may think proper. (c)

§ THE COURT OF DIVORCE may, where there has been a decree absolute for a judicial separation, or for nullity, or dissolution, of marriage, make such order as it may think just and proper for the custody, maintenance, and education of children of the marriage dealt with by the court.(d)

But the Divorce Court will not interfere with the father's common law right to the custody of the children— Unless he is leading a notoriously dissolute life.(e) § A TESTAMENTARY GUARDIAN has the same right to the custody of his infant ward as the father would have had.(f)

(a) Re Goldsworthy, 2 Q. B. D. 75.

(b) Hope v. Hope, 23 L. J. Ch. 689.

(c) "The Custody of Infants Act, 1873," 36 Vict. c. 12, s. 1.

(d) 20 & 21 Vict. c. 85, s. 35; 22 & 23 Vict. c. 61, s. 4.

(e) March v. March, L. R. 1 P. & M. 437; "The Guardianship of Infants Act, 1886," 49 & 50 Vict. c. 27.

(f) Re Andreus, L. R. 8 Q. B. 153.