Butterfield v. Ashley , 68 Mass. 254 ( 1854 )

Metcalf, J.

According to the testimony given at the trial, Charles H. Butterfield wrongfully left the service of the plaintiff, his father, with intent to go to sea, and went to New Bed-ford, where the defendants, after he had informed them that he had thus left his father, induced him to sign shipping papers and go on a whaling voyage. This testimony does not support the declaration, which alleges that the defendants “ did entice away said Charles H. from his said father, and from his said father’s service.” It proved (if believed) that the defendantsf knowing that the said Charles H. was the son and servant of the plaintiff, unlawfully received him, then being such servant, into their service, and harbored, detained and kept him. And for such wrongful act the defendants would be liable in damages to the plaintiff, in an action properly framed.

The law on this subject is very plain, and was stated, with some care, when this case was formerly before us. 6 Cush. 249. The testimony has changed since, but not the law. To constitute enticement of a servant from his master’s service, within the meaning of the law, inducements must be presented to him, while he is in that service, which cause him to leave it. After he has, of his own accord, left such service, and while he is out of it, he cannot be enticed from it. The instruci ton to the jury was therefore wrong, and the verdict must be set aside.

Exceptions sustained.