CENTRAL COURTS I9- 



their employees and as against competing employers. These 

 advantages are worth noting. At common law a master 

 can keep an unwilling servant in his service by force; ^ but 

 if the servant once make good his escape, or if a servant 

 after agreeing to enter the service of a given master, never 

 appears, the master has no remedy.^ According to the or- 

 dinance on the contrary, in either of the last two circum- 

 stances, the master has a right to re-capture the servant 

 and even to use imprisonment or other means of forcible re- 

 straint; in an interesting test case the plea of a servant to 

 the effect that only a suit is legitimate for the master in 

 such circumstances is not allowed by the court. ^ Again, at 

 common law, a master has an action of trespass against a 

 second master, only if the latter actually " take " the form- 

 er's servant vi et armis out of his service.'* This action is 

 not abolished by the ordinance,^ but by the latter's pro- 

 visions essential additions to the rights of the first master are 

 made, namely : if a second master persuade a servant to leave 



'Case 10, app., F, 5. ''Case 36, app., F, 5. 



'Case 10, app., F, 5. 



* Cases 6 and 36, app., F, 4 and 5. C/. summary of case 12, list in app., 

 quoted on p. 185, note 3. In case 27, list in app., discussed on pp. 185-186, 

 the issue turns on the question of the minority of one of the servants; the 

 judgment includes the statement that at common law an action lies only 

 if a servant is actually taken out of service. Reeves, op. cit., ii, 274-275, 

 note, in a translation of a Year Book case, 11 H. IV, f. 22,, affords the 

 most explicit account of the distinction between the common law and 

 the ordinance: " Thermug, If my servant, before the statute, went out of 

 my service, I suppose well that no action is given to the master, but if 

 a man took my servant out of my service, then action of trespass lay at 

 the common law, and still lies; .... Hankford, I am of the same 

 opinion as my master has expressed, that if my servant'depart out of my 

 service, at common law I can have no action, and the cause was for 

 that between me and my servant it is a contract, upon which no action 

 lay at the common law without a specialty, and for this mischief the 

 statute was made, and action given on it." 



' C/. quotation in note 4, supra, and case 17, app., F, 5. 



