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and final test. 'A treaty transcending or contradicting the Constitution would not be a law which a court should enforce or apply, and should the question arise before a court whether a given treaty is of this character, it would be both its province and duty to decide the point.

The above sketch, though by no means exhaustive, presents a series of legal principles relating to the operation of treaties as laws, which have been established by the courts of the land, especially the Supreme Court of the United States, in determining cases as between litigant parties. There is, in addition to these particulars, an interesting question in relation to treaties and the laws of Congress, when in conflict with each other, which the Constitution does not formally settle. Both are declared to be supreme laws, without any distinction between them as to the degree of their authority. Which then, in a case of conflict, shall prevail? The answer to this question is reserved for another and final article.





By Laws 1857, chap. 628, as amended by Laws 1869, chap. 856,

in addition to a license permitting the sale of intoxicating liquor not to be drank on the premises of the seller, two kinds of licenses could be granted in all parts of the State of New York except the Metropolitan Police District, namely, a license to sell strong and spirituous liquors and wines, etc., to be granted only to persons who kept an inn, tavern or hotel, and an ale and beer license to other persons. By Laws 1870, ch. 175, amending the act of 1857, such licenses were allowed in the Metropolitan Police District. Accordingly commissioners of excise granting a license to sell ale and beer in the city of New York to one not keeping an inn, tavern or hotel, do not violate any provision of the excise law. The act of 1870 declares that the provisions of the act of 1857 “shall be taken and considered as a part of this act” (of 1870) "and be and remain in full force throughout the whole of this state." Held, to apply to the act of 1857 as amended in 1869, and not to the original act of 1857 only.

tled “An act to suppress intemperance and to regulate the sale of intoxicating liquors," and the sixth section thereof no such license could be granted.

By chapter 856 of the Laws of 1869, however, which both its title and provisions show was amendatory of the act of 1857, and by its fourth section it is provided : “ All the provisions of this act as amended shall be held to apply to the sale of ale and beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel, and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer, for a sum not less than ten dollars, to other than those who propose to keep an inn, tavern or hotel, and the provisions of this act shall extend to all portions of the State except the Metropolitan Poliee District."

The reason of the exception of the Metropolitan Police District from the provisions of the act of 1869 was this: By chapter 578 of the Laws of 1866 a separate act existed therefor, excepting the county of Westchester, which authorized a license within such district, “to any person or persons of good moral character, and who shall be approved by them, permitting him and them for one year from the time the same shall be granted, to sell and dispose of, at any one named place within said Metropolitan Police District, exclusive of the county of Westchester, strong and spirituous liquors, wiues, ale and beer in quantities less than five gallons at a time, upon receiving a license fee to be fixed in their discretion, and which shall not be less than thirty nor more than two hundred and fifty dollars." That act allowed licenses to “sell strong and spirituous liquors, wines, ales and beer in quantities less than five gallons at a time," to be granted without the issuing of one to keep a hotel, to any person within the district to which such act referred. People v. Smith, 69 N. Y. 175, see p. 179.

To return, however, from this digression to the act of 1857, and the amendments of 1869. By a well-kuown rule of law, the amendments made by the latter to the former became and were, from the date of the enactment, parts of the original act, so that when the act of 1857 is thereafter referred to, unless there be some words used indicating the contrary, the act as amended is intended, as much so as when a reference is made to a physical object, which at the time of such reference is in a changed or altered form, the object as so changed or altered, is thereby designated. Dexter & Limerick Pl. R. Co. v. Allen, 16 Barb. 15, see pages 16, 17. This doctrine is well illustrated in the quaint language of an old case (Bayly v. Murin, 1 Vent. 246, cited with approbation in Potter's Dwarris on Statutes, page 190): “Because the 14 Eliz. is a kind of appendix to the 13th of Eliz. and does not repeat it, but sub modo a little enlarging it as to houses in market towns; wherefore the 18th of Eliz., reciting the 13th, does by consequence recite the 14th also."

By chapter 175 of the Laws of 1870, the separate act (ch. 578, Laws of 1866), in regard to the Metropolitan Police District was repealed, “and the provisions of the act passed April sixteenth, eighteen hundred and fifty-seven (i. e., the act entitled 'An act to suppress intemperance and to regulate the sale of intoxicating liquors, 'as it read in 1870 by force of the amendment made in 1869), “except where the same are inconsistent or in conflict with the provisions of this act, shall be taken and construed as a part of this act, and be and remain in full force and effect throughout the WHOLE of this State."

That act now prevents not only in the city of New York, but anywhere in the State, the granting of any license, except as part of one authorizing the keeping of an inn, tavern or hotel, to “sell strong or spirituous liquors or wines to be drank iinon the premises," beze

Morrison, Philip Merkle and George W. Morton, for a violation of their duty as excise commissioners. The opinion states the case.

WESTBROOK, J. Application was made to me as a a judge whilst holding court in New York city, to issue a warrant against the above-named defendants, who are excise commissioners of the said city of New York, upon a complaint charging them with having illegally and contrary to law granted to John Kuell, of 95 Maiden lane, in said city, “a license to sell ale and beer in quantities less than five gallons at a time, to be drank on the premises where sold, the said John Knell not being an inn, tavern or hotel keeper.”

The point upon which the charge depends is, do the laws of this State permit the granting in the city of New York of an ale and beer license authorizing its sale to be drank on the premises, when the party selling is not licensed as a hotel keeper? In other words, can the excise board of the city authorize ale or beer to be sold and drank on the premises of the seller without granting to him a hotel license?

The complaint involves a pure question of law depending on the construction of statutes, which must be decided upon the laws as they are, without any regard to my own notion of what they ought to be.

By the act of 1857 (ch, 628), as originally passed, enti

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cause the provisions of the act of 1857 are still opera- licenses only became from that time operative over tive “except where the same are inconsistent or in the whole State, including of course the city and county conflict with the provisions" thereof; and the act of of New York, because said act of 1870 so expressly pro1857 having expressly forbidden the granting of any vides. such licenses except to hotel keepers, the Court of It follows, of course, that the defendants in granting Appeals in People v. Smith, .69 N. Y. 175, decided the license complained of violated no law, and were that that provision of the act of 1857 was not incon- guilty of no offense, and that no warrant can issue to sistent with the act of 1870, and was therefore, by the bring them before me to answer. It is their duty to language of the act of 1870, to "bo taken and construed execute the law as it is, and both they and judges are as a part thereof."

to interpret it as it reads, and neither are responsible There is no direct provision in the act of 1870 for the for provisions which may not meet their approval as granting of ale or beer licenses as such, but authority citizens. is given " to sell and dispose of

* strong and Tho foregoing opinion was prepared to this point spirituous liquous, wines, ales and beer in quantities some days ago. Since its preparation my attention has less than five gallons at a time.” This general license, been drawn to a decision of a brother judge (Judge however, as wo havo seen, the Court of Appeals have Barnard), which, as reported in the public press, holds held could not bo granted except to a hotel keeper, that there is no power now to grant anywhere in the because the restrictions placed upon the granting of State a license for the sale of ale and beer only, sepalicenses to sell " strong or spirituous liquors or wines to rate and apart from a hotel license. Thosincere respect be drank upon the premises ” by the act of 1857 were entertained for his learning and judgment has induced not repealed, but were in full force. But the act of me to review my conclusion hereinbefore expressed, 1857 (as amended, for in 1870 the amendments were a but such review has not in the least shaken my convicpart of it) also provided for the granting of licenses tion. After careful and further reflection I am still " for the sale of ale or beer

to other than constrained to hold that the act of 1870, when it dethose who propose to keep an inn, tavern or hotel," clares, “the provisions of the act passed April 16, 1857, and as that provision was not at all inconsistent with except when the same are inconsistent or in conflict

the act of 1870, which, whilst it provided for a general with the provisions of this act, shall be taken and con• license to sell all kinds of intoxicating drinks to be sidered as a part of this act, and be and remain in full

granted, as held by the Court of Appeals, only in con- force and effect throughout the whole of this State," nection with a tavern or hotel license, did not abro- refers to the act of 1857 as it reads, when such language gate and annul the power to grant ale or beer licenses was used, and not to it as originally enacted. The only, it must now (for the act of 1870 so requires) “ be reference to the act is a general one and there are no taken and construed as a part" thereof, and be deeined words limiting and controlling the reference. The to be "in full force and effect throughout the whole of amendments of 1869 were then part and parcel thereof the State." In other words, the power to grant a gen- as much so as its original provisions. It is not the act eral license to sell intoxicating drinks including ale as passed in 1857, which is made operative over the enand beer, conferred by the act of 1870, which can only tire State, but the act” of 1857, or passedin 1857, be granted to a hotel keeper, is not inconsistent with, for either word -“of” or “passed” – in that connecand does not take away the power to grant an ale or tion has the same signification. If the act of 1870 had beer license only to a person not a hotel keeper, which declared that the act of 1857 was thereby repealed, it the act of 1857, as amended in 1867, authorized, and seems to me clear that the entire law as it read in 1870 thereforo such provision of the act of 1857, because it with all its amendments engrafted thereon and then is not inconsistent with said act of 1870, is by said act forming integral parts thereof would have been abroof 1870 made applicable to “the whole of tho State.” gated, and therefore, when the act of 1870 does not

The full argument, which has been for its proper un- profess to repeal that of 1857, but re-enacts all the proderstanding somewhat protracted, may bo thus tersely visions of the latter not inconsistent with its own and stated. By the act of 1857 as amended in 1869, in addi- extends them over the entire State, that such enacttion to one permitting the sale of intoxicating drinks ment and extension apply not only to its original proin sinall quantities not to be drank, however, upon the visions but to all others which had since become and premises of the seller, two kinds of licenses could be then were substantial and vital portions thereof. It granted. First, a license to sell strong and spirituous certainly, as it may bo urged, would have been easy liquors and wines to bo drank on tho premises of the for the Legislature, in speaking of the act of 1857, to persons licensed, to be granted only, however, to per- have added the words “as amended," and it would have sons who kept an inn, tavern or hotel; and second, an been equally easy if the amendments were not also ale or beer license “ to others than those who propose made applicable to the whole State, to have so declared to keep an inn, tavern or hotel.” This ale or beer in plain words. Neither, however, has been done, and license, however, was engrafted in 1869, upon the act the simple question then is, does a general reference to of 1857, and was not applicablo to the Metropolitan a statute, which at the time of such reference is in an Police District, for which a separate and distinct amended form, intend the statute as originally passed license law existed, passed in 1866, under which a gen- or the statute as it reads at the time of such reference? eral license to sell all kinds of intoxicating drinks This question can only admit of ono answer, as shown could bo issued, although the person licensed kept no in the former part of this opinion, and that must be, inn, tavern or hotel. Iu 1870, however, another license such a reference is to the act as amended. law was passed, which repealed the local Metropolitan There is also another answer to any assertion, if such Police District act, and made such act of 1870, and the has been made, that there is no authority now in act of 1857 as changed and amended in 1869, when not boards of excise to grant an ale or beer license in any inconsistent with the act of 1870, applicable to the whole part of tho State outside of the old Metropolitan PoState. Tho act of 1870 did not profess to take away the lice District, and it is this. The question before me is, power to grant a licenso for tho sale of ale and beer was the act of 1869, because amendatory of the act of ouly, nor was the right to grant a general license to 1857, expressly extended over the city of New York by sell all intoxicating drinks, including ale and beer, in- the act of 1870? Unless this question can be answered consistent with tho special license allowed by the act in tho affirmativo the complaint against the police of 1857 as amended in 1869, for the sale of ale and beer commissioners of the city of New York is well founded, only, and because not repealed or inconsistent with for the act of 1859 excepted such city, as a part of the the act of 1870, such authority to grant ale and beer Metropolitan Police Distriot, from its provisions. Sup

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pose, however, I am wrong in the conclusion that the

CONTRACT IN RESTRAINT OF TRADE act of 1870, by extending the provisions of the act of

FOREIGN JUDGMENT. 1857 over the whole State, thereby also necessarily extended the act of 1869, which was simply amendatory

ENGLISH HIGH COURT OF JUSTICE, CHANCERY of that of 1857, over the same territory, when and where was the provision of such act of 1869, permitting

DIVISION, FEBRUARY 23, 1880. the commissioners of excise to “grant licenses for the sale of ale or beer * to other than those who

ROUSSILLON V. ROUSSILLON. propose to keep an inn, tavern, or hotel," and which

The plaintiffs were champagne merchants at Epernay, provision was declared to “extend to all portions of

in France. The defendant, whose name was the same the State except the Metropolitan Police District,” re- as that of the plaintiffs, having entered their house pealed? There certainly is no statute which directly and learnt the business, acted for two years as their repeals it, and as repeals by implication are not favored representative in England, and then wrote a letter to in the law, it must be shown that some later statute

them, by which he undertook not to represent any contains provisions necessarily inconsistent therewith,

other champagne house for two years after leaving the before a right so clearly and expressly conferred can

plaintiff's' employment, and not to establish himself or

associate himself with other persons or houses in tho be taken away. A careful search by me has failed to

champagne trade for ten years after leaving them. The discover any subsequent enactment which is repugnant

defendant left the plaintiffs' employment in March, thereto. Plainly the act of 1870 is not inconsistent 1877, and in May, 1878, commenced business in London therewith, for that, as we have shown in the former as a retail wine merchant, and sold champagne as well part of the opinion, only confers the power to grant a as other wines. In his circulars and advertisements, general license for the sale of all intoxicating drinks to

and on the labels and corks of the champagne bottles a hotel keeper, and such general license is not incon

were the words " Ay Champagno,” but he had no essistent with the special one for the sale of ale or beer

tablishment anywhere except in London. Held, that

the defendant had committed a breach of the agreeonly by an individual who is not a hotel keeper. The

ment. Held, also, that the agreement was valid, as the two licenses are of course different, but difference and

restriction was not larger than was necessary for tho repugnance are not synonymous expressions. A power reasonable protection of the plaintiffs. There is no to do several acts under circumstances clearly pre- hard and fast rule that a contract in restraint of trade scribed is not incompatible with or repugnant to an unlimited as to space is invalid, but the validity deauthority to do only one of those acts under a different pends on the reasonableness of the contract. Leather condition of things, though the two are unlike. This

Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. proposition is too clear to admit of discussion, and the

Rep., 9 Eg. 315, followed. Allsopp v. Wheatcroft, 27 L, T.

Rep. (N. S.) 372 ; L. Rep., 15 Eq. 59, disapproved. question may therefore well be repeated, When and

A contract against public policy will not be enforced by Eng. where was the authority given by the act of 1869 to lish courts, though the contract is valid in the country grant an ale or beer license anywhere in the State, ex- where it is made, and is entered into between foreign cept in the Metropolitan Police District, taken away? traders. A judgment by default was obtained in France If it has been, I have been unable to discover the re- against a Swiss, domiciled in England, on a contract pealing statute. Indeed it was plumply decided as entered into by him while on a temporary visit to early as December, 1874, by the General Term of the France. No notice had been given to him of the acSupreme Court for the Third Department, held by

tion. Held, that the judgment was not binding on

him. Schibsby v. Westenholz, 24 L. T. Rep. (N. S.) 93 ; Judges Bockes, Countryman and Landou (O'Rourke v.

L. Rep., 6 Q. B. 155, considered. Tho circumstances People, 3 Iun, 225), that the power to grant ale or beer

which impose a duty upon a defendant to obey the delicenses still existed. The opinions of Judges Bockes cision of a foreign court stated. and Countryman in that case are so exhaustive as to leave nothing to be said, and are therefore referred to

IIS was an action to restrain the defendant from as conclusive upon the question at issue. Now if, to carrying on the business of a champagne mermake the argument applicable to the case before me, chant, and for an order for the payment of certain it be conceded, as it seems to me it must, that the

damages awarded by a French court. power to grant such licenses anywhere in the State The plaintiffs were Jean and Gustave Roussillon, except in the Metropolitan Police District exists, why who carried on the business of champagne merchants should the act of 1870 be so construed as to make that at Epernay, in France, under the name of J. Roussillon district an exception to tho rest of the State? The act & Co. of 1870 certainly repealed its local excise law, and in- Jn 1866 they took the defendant, Auguste Roussillon, tended to extend all the provisions regulating the sale who was a nephew of Jean Roussillon, into their emof intoxicating drinks in the residue of the State over ployment as a clerk, in order that he might learn the that locality. If it has not done so, it is because of a

business. After ho had been two years in their serfailure to express tho plain purpose. No proper con- vice at Epernay he was sent to England in order that struction of language used as we have endeavored to he might learn English, and they afterward employed show, makes such a conclusion necessary, and the evi- him as their traveller in England, Scotland, and other dent propriety of so construing statutes as to work places. This necessitated his being introduced to equally rather than unequally over the whole State many of the customers of the firm, and the plaintiffs fortifies the argument already made to demonstrate accordingly suggested to him that for their protection that the act of 1870 in extending the provisions of that he should enter into an engagement not to compete of 1857 over its entire territory, necessarily carried with them in the event of his employment with them those of 1869, which had become a part of such act of being terminated. 1857, with them. To prevent any misapprehension as In accordance with this suggestion on the 9th Octoto the scope of the foreign opinion, it should be added ber, 1869, the defendant wrote a letter to the plaintiff, that whilst in my judgment the parties complained of J. Roussillon, in French, of which the following is a committed no crime in granting a license for the sale translation : of ale or beer; it is not held that any obligation “As a return for the kindness and care of which I to grant licenses of that character devolves upon have been the object, and the trouble you have taken boards of excise. No such question is involved in the in my commercial education, I address this letter to proceeding before me, but as the act is very clear ($ 4, you as a proof that I undertako not to represent any ch. 856 of Laws of 1869), it may not be improper to say other champagne house for two years after having left in its very words, that such licenses are “in their dis- you, if at any time I leave your house for any reason cretion."

whatever, whether it be on your part or my own. I


also undertake not to establish myself, nor to associate was residing in England. That those proceedings were myself with other persons or houses in the champagne taken entirely without his knowledge, and that the trade (dans le commerce des champagnes) for ten years first notice he had of them was in November, 1878, in case I should leave you as already mentioned above. when the judgment was handed to him. I enter into these engagements trusting to your assur- From the evidence of a French avocat it appeared ance that I may rest in the idea that my position is as- that according to the law of France contracts in resured in your house except in the event of unforeseen straint of trade were not void, and that a judgment by events or of negligence on my part in the affairs which default was void if not executed within six months, are or shall be intrusted to me, and I promise to do all unless every thing had been done that could be done in my power to maintain and increase the good repu- to obtain execution. tation of your house in the countries I am connected with."

FRY, J. In this action the plaintiffs seek for an inWhen this letter was written the defendant was junction on two grounds. The one is a contract constaying at Epernay for a few days on his way to Eng- tained in a letter of the 9th October, 1869, and the land from Switzerland, where he had been spending a other is a judgment of the Tribunal of Commerce holiday. Ho was a native of Switzerland but resident in France of the 6th November, 1878. The two subin England. The defendant continued in the plaintiff's jects require entirely separate consideration. With employ until the 1st May, 1877, when he voluntarily regard to the contract and judgment, but few facts left them.

are in controversy between the parties, and it does not In 1878 the defendant established himself at No. 2 therefore appear to me to be necessary to state in dePiccadilly place, London, as a champagne merchant, tail the history of the case, more especially as I shall and advertised himself as selling champagne, and the from time to time in the course of my judgment refer plaintiffs alleged that by his advertisements and circu- to the facts which I consider have been proved in evilars he led people to suppose that he was established at dence before me. Now, the first argument raised on Ay, which is in the neighborhood of Epernay, and that the part of the defendant is that no breach of the conhe had applied to many of the plaintiffs' customers, to tract has been committed by him. It becomes therewhom he had been introduced as their traveller, to buy fore necessary to consider what are the terms of the his champagne as well as the plaintiffs, all of which contract. They are, so far as it is necessary for this they contended was a breach of the contract of the purpose to consider them, in these words: “I under9th October, 1869.

take not to represent any other champagne house for In September, 1878, the plaintiffs instituted an action two years after having left you, if at any time I leave against the defendant in the Tribunal of Commerce, your house for any reason whatever, whether it be on sitting at Epernay, to recover damages for the loss your part or on my own. I also undertake not to essustained by them by reason of the breach by the de- tablish myself, nor to associate myself with other perfendant of the agreement contained in the letter of the sons or houses in the champagne trade for ten years, 9th October, 1869, and to restrain him from further in case I should leave you as already mentioned breach thereof.

above." The question in dispute has been this: what On the 6th November, 1878, the Tribunal of Com- is the meaning of the words “the champagne trade," merce gave judgment in the action. The judgment in the clause I have read? In my judgment they refer contained recitals of the facts proved and of the pro- to the trade of exporting from Champagne or importceeding in the action, and then proceeded in the ing into this country the wines of Champagne. It has Freuch language, in the words of which the following been urged that it involves also the making of the is a translation:

wine in Champagne. It appears to me that that is not a · Say that Auguste Roussillon should not represent necessary part of the champagne trade, because the any champagne house for two years from the com- trade may be carried on without that, as shown in the mencement of the year 1878, and that during ten years present case. The defendant buys his wines in Chamfrom the same period he should not carry on business pagne, and exports them from Champagne into this as a champagne merchant either on his own account or country, or rather imports them from Champagne into in partnership. Order that in a week following notice this country, and he affixes to the bottles of wine that of the present judgment he shall completely cease to he brings over his own brand, which indicates that he trade as a champagne merchant, and shall suppress the is an importer, that he has selected the wine, that in words " Ay.Champagne," and the mention of cham- a certain sense, he is a guarantor of the excellency of pagne wine from his labels, advertisements, and circu- the wine, and he has placed upon it the name of the lars. This under penalty of 100 francs damages per place at which he buys the wine, namely, Ay, in Chamday for non-compliance for two months after which pagne. It appears to me that those acts are a violaright shall be euforced.”

tion of the terms of the contract he has entered into. Certain other directions were given in the judgment I repeat that the terms of the contract appear to me to as to notifying defendant, etc.

be that the defendant shall not act as an importer of Notwithstanding this judgment, the defendant con- champagne from that province into this country, and tinued to carry on his business, and to advertise as that trade has been carried on by the defendant. I before, and did not pay the plaiutiffs any of the dam- hold, therefore, that the plaintiffs have established a ages awarded by the judgment.

breach of the contract entered into. In the next place The plaintiffs alleged that they were sustaining con- it is said by the defendant that the contract is bad in siderable loss in consequence of the defendant trading law. It has been suggested on his behalf that there is in this manner, and claimed an injunction restraining po sufficient consideration shown, but as Mr. North him from representing any champagne house for two has declined, on the ground of the condition and the years from the 1st May, 1877, and from carrying on state of the authorities, to argue that point before me, business as a champagne merchant for ten years from it does not require adjudication at my hands. In the the same date; that he might be ordered to pay them next place it is said that the contract is not reasonable, the sum of 8911. 98., the amount awarded by the and it is unquestionably the law of this country that French tribunal, with interest thereon; and also 5001. contracts of this description, being in restraint of damages.

the freedom of trade, must be reasonable. Now, From the evidence it appeared that the defendant what is the criterion by which the reasonableness of was never domiciled in France, but only paid tempo- contract is to be judged. I will take the law on that rary visits to that country, and at the date of the pro- point from the judgment of Tindall, C. J., in deliverceedings against him before the Tribunal of Commerce, ing the judgment of the Court of Exchequer Chamber,


on appeal from the Court of Queen's Bench, in Hitch- intended publications are excluded, according to the cock v. Coker, 6 A. & E. 438, where he said (p. 454): general rule before referred to we ought not to hold

We agree in the general principle adopted by the the contract void." In other words the Court of court, that where the restraint of a party from carry- Queen's Bench threw upon the defendant, who alleged ing on a trade is larger and wider than the protection the invalidity of the contract on this ground, the burof the party with whom the contract is made can possi- den of showing that it was plainly and obviously clear bly require, such restraint must be considered as un- that the protection extended, and the proposed exclureasonable in law, and the contract which would sion of the defendant's publications was, beyond what enforce it must be therefore void.” That passage was the plaintiff's interests required. And such, in my adopted by Lord Wensleydale, when a baron of the opinion, ought to be the rule of law of this court upon Court of Exchequer, in delivering judgment in Ward this point, because it is to be borne in mind that the v. Byrne, 5 M. & W. 518, 561, and therefore the rule so defendant is seeking to put a restraint upon the freeexpressed has the authority of the three Common Law dom of contract, and he who does that must, I think, Courts, the Queen's Beuch, the Commou Pleas, and show that it is plainly necessary for the purposes of the Exchequer. If, therefore, the extent of the re- freedom of trade. In that point of view I adopt the straint is not greater than can possibly be required for view expressed by the Master of the Rolls, upon the the protection of the plaintiffs, it is not unreasonable. subject of the necessity of courts being careful how Another case which in my view throws great light | they invade the freedom of contract, in Printing and upon the mode in which this question ought to be ap- Numerical Registering Company v. Sampson, 32 L. T. proached is Tallis v. Tullis, 1 El. & B. 391. There the Rep. (N. S.) 354; L. Rep., 19 Eq. 462, 465. The question plaintiff and the defendaut had been partners as pub- then arises, does the defendant in this case discharge lishers of books. Part of their trade, called the cau- the burden so cast upon him. In answering that I vass trade, consisted in publishing books in numbers, must consider the facts of the case. It appears that at and employing travellers to sell such books by canvass- the time this contract was entered into the defendant ing purchasers. The partnership was dissolved, the had for some two years been acting as the representaplaintiff being the continuing partner. The defendant tive of the plaintiffs in England. His instructions apagreed, amongst other things, not directly nor indi- pear to have been under their direction to travel over rectly to be concerned in the canvassing trade all parts of England and over Scotland, and at a subin London, or within 150 miles of the General sequent date, not so far as I know at this date, he visited Post-Office, nor in Dublin or Edidburgh, or within Holland for the purposes of their trade. Further than fifty miles of either, nor in any town in Great Brit- that, he had, by a residence of some four months in ain or Ireland in which the plaintiff or his success- Epernay, at the house of the principal plaintiff, acquired ors might at the time have establishment, apparently a knowledge of the plaintiffs' trade as or might have had one within the six months carried on in France. He was therefore acquainted preceding. The action was for a breach of the cove- with the trade at both its ends. He was a relative of nant. It was pleaded, amongst other things, that there the plaintiffs and bore their name. Looking, therewere numerous works which the plaintiff did not pub- fore, at the extent of trade carried on by the plaintiffs lish and had no intention of publishing, and that many aud its diffusion over the whole of England; looking of such works might be published with advantage to the at the facilities which now exist for carrying on trade public by the defendant, aud without injury to the in various places by means of the freedom of commuplaintiff, that the canvassing trade applied to ali such nication which exist between them, I cannot say that books; and that the restraint as to the canvassing it has been made plain and obvious to me that this trade as applicable to such books was unreasonable. contract exceeds in its extent that which the plaintiffs The court upon those pleadings, upon a demurrer, held were entitled to for the protection of their trade. No that the declaration was good, it not appearing that the doubt criticisms may be made on tho contract, and it restraint was unreasonable. And in giving judgment may be said, as it has been said, that you can conceive they considered a dictum in Mitchell v. Reynolds, 1 P. cases which the restraint would apply, in which no iuW. 181, 191, to the effect that: “Wherever such con- jury would be done to the plaintiffs. That observation tract stat indifferenter, and for aught appears, may be applies to Tallis v. Tallis, 1 E. & B. 391, and when I either good or bad, the law presumes it prima facie to bear in mind the obvious channels through which trade be bad.” But instead of adopting that view they is influenced, and the great difficulty of providing for called attention to what was said by the Court of Ex- every possible case in which injury might arise, withchequer in Mallan v. May, 11 M. & W. 653, 667, that out including certain possible cases in which injury "it would be better to lay down such a limit as under might not arise, I have come to the conclusion that it any circumstances would be sufficient protection to the has not been shown to me that this contract is larger interest of the contracting party, and that if the limit than is necessary for the reasonable protection of the stipulated for does not exceed that, to pronounce the plaintiffs, and I hold therefore that that objection fails. contract to be valid." And further on in their judgment But then it is said that over and above the rule that they said this: “Even if the facts therein stated are the contract shall be reasonable, there exists another taken to be admitted by the demurrer, and the rule, viz., that the contract shall be limited in its space, reasonableness of the restriction in question is to be and that this contract being in its terms unlimited, considered with reference to those facts, together with and therefore extending to the whole of England, the facts alleged in the declaration, still we think the meaning England and Wales, must be void. Now, in pleas bad. For although the books capable of republi- the first place, let me consider how far such a rule cation may be at most infinite, still the number of sub-would be reasonable. There are many trades wbich are scribers to such republication coming out in numbers carried on all over the kingdom which by their very is limited; and although if the defendant's books are nature are extensive and widely diffused. There are excluded, it does not follow that the plaintiff's books others which from their nature and necessities are would be purchased, still we cannot ascertain that the local. If this rule existed it would afford a complete number of subscribers to the plaintiff's books would protection to tho latter class of trade, whilst it would not be diminished if the defendant competed with him prohibit complete protection of the former class, and by offering other books, especially if they were of a an injury which ought not to be wrought without good similar character. And unless the defendant made it reason would arise. In the next place, the rule, if it plainiy and obviously clear that the plaintiff's interest existed, would apply in two classes of cases. It would did not require the defendant's exclusion, or that the apply where the want of limitation of space was unpublio interest would be sacrificed if the defendant's reasonable, and it would apply also where the univer

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