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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.

EXCISE LICENSES TO PERSONS NOT KEEPING INNS.

NEW YORK SUPREME COURT CHAMBERS, JUNE, 1880.

PEOPLE V. MORRISON ET AL.

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.

APPLICATION for a warrant against Richard J.

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 Knell, 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

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.

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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 Police 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, wines, 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 quautities 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-known 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 on the premises," be

cause the provisions of the act of 1857 are still operative "except where the same are inconsistent or in conflict with the provisions thereof; and the act of 1857 having expressly forbidden the granting of any such licenses except to hotel keepers, the Court of Appeals in People v. Smith, .69 N. Y. 175, decided that that provision of the act of 1857 was not inconsistent with the act of 1870, and was therefore, by the language of the act of 1870, to "bo taken and construed as a part thereof."

There is no direct provision in the act of 1870 for the granting of ale or beer licenses as such, but authority is given "to sell and dispose of * * strong and

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spirituous liquous, wines, ales and beer in quantities less than five gallons at a time." This general license, however, as wo have seen, the Court of Appeals have held could not be granted except to a hotel keeper, because the restrictions placed upon the granting of licenses to sell "strong or spirituous liquors or wines to be drank upon the premises" by the act of 1857 were not repealed, but were in full force. But the act of 1857 (as amended, for in 1870 the amendments were a part of it) also provided for the granting of licenses "for the sale of ale or beer * * * to other than those who propose to keep an inn, tavern or hotel," and as that provision was not at all inconsistent with the act of 1870, which, whilst it provided for a general ⚫ license to sell all kinds of intoxicating drinks to be granted, as held by the Court of Appeals, only in connection with a tavern or hotel license, did not abrogate and annul the power to grant ale or beer licenses only, it must now (for the act of 1870 so requires) "be taken and construed as a part" thereof, and be deemed to be "in full force and effect throughout the whole of the State." In other words, the power to grant a general license to sell intoxicating drinks including ale and beer, conferred by the act of 1870, which can only be granted to a hotel keeper, is not inconsistent with, and does not take away the power to grant an ale or beer license only to a person not a hotel keeper, which the act of 1857, as amended in 1867, authorized, and therefore such provision of the act of 1857, because it is not inconsistent with said act of 1870, is by said act of 1870 made applicable to "the whole of the State."

The full argument, which has been for its proper understanding somewhat protracted, may be thus tersely stated. By the act of 1857 as amended in 1869, in addition to one permitting the sale of intoxicating drinks in small quantities not to be drank, however, upon the premises of the seller, two kinds of licenses could be granted. First, a license to sell strong and spirituous liquors and wines to be drank on tho premises of the persons licensed, to be granted only, however, to persons who kept an inn, tavern or hotel; and second, an ale or beer license to others than those who propose to keep an inn, tavern or hotel." This ale or beer license, however, was engrafted in 1869, upon the act of 1857, and was not applicable to the Metropolitan Police District, for which a separate and distinct license law existed, passed in 1866, under which a general license to sell all kinds of intoxicating drinks could bo issued, although the person licensed kept no inn, tavern or hotel. In 1870, however, another license law was passed, which repealed the local Metropolitan Police District act, and made such act of 1870, and the act of 1857 as changed and amended in 1869, when not inconsistent with the act of 1870, applicable to the whole State. Tho act of 1870 did not profess to take away the power to grant a license for the sale of ale and beer only, nor was the right to grant a general license to sell all intoxicating drinks, including ale and beer, inconsistent with tho special license allowed by the act of 1857 as amended in 1869, for the sale of ale and beer only, and because not repealed or inconsistent with the act of 1870, such authority to grant ale and beer

licenses only became from that time operative over the whole State, including of course the city and county of New York, because said act of 1870 so expressly provides.

It follows, of course, that the defendants in granting the license complained of violated no law, and were guilty of no offense, and that no warrant can issue to bring them before me to answer. It is their duty to execute the law as it is, and both they and judges are to interpret it as it reads, and neither are responsible for provisions which may not meet their approval as citizens.

The foregoing opinion was prepared to this point some days ago. Since its preparation my attention has been drawn to a decision of a brother judge (Judge Barnard), which, as reported in the public press, holds that there is no power now to grant anywhere in the State a license for the sale of ale and beer only, separate and apart from a hotel license. The sincere respect entertained for his learning and judgment has induced me to review my conclusion hereinbefore expressed, but such review has not in the least shaken my conviction. After careful and further reflection I am still constrained to hold that the act of 1870, when it declares, “the provisions of the act passed April 16, 1857, except when the same are inconsistent or in conflict with the provisions of this act, shall be taken and considered as a part of this act, and be and remain in full force and effect throughout the whole of this State," refers to the act of 1857 as it reads, when such language was used, and not to it as originally enacted. The reference to the act is a general one and there are no words limiting and controlling the reference. The amendments of 1869 were then part and parcel thereof as much so as its original provisions. It is not the act as passed in 1857, which is made operative over the entire State, but "the act " of 1857, or "passed" in 1857, for either word "of" or "passed"-in that connection has the same signification. If the act of 1870 had declared that the act of 1857 was thereby repealed, it seems to me clear that the entire law as it read in 1870 with all its amendments engrafted thereon and then forming integral parts thereof would have been abrogated, and therefore, when the act of 1870 does not profess to repeal that of 1857, but re-enacts all the provisions of the latter not inconsistent with its own and extends them over the entire State, that such enactment and extension apply not only to its original provisions but to all others which had since become and then were substantial and vital portions thereof. It certainly, as it may be urged, would have been easy for the Legislature, in speaking of the act of 1857, to have added the words "as amended," and it would have been equally easy if the amendments were not also made applicable to the whole State, to have so declared in plain words. Neither, however, has been done, and the simple question then is, does a general reference to a statute, which at the time of such reference is in an amended form, intend the statute as originally passed or the statute as it reads at the time of such reference? This question can only admit of one answer, as shown in the former part of this opinion, and that must be, such a reference is to the act as amended.

There is also another answer to any assertion, if such has been made, that there is no authority now in boards of excise to grant an ale or beer license in any part of the State outside of the old Metropolitan Police District, and it is this. The question before me is, was the act of 1869, because amendatory of the act of 1857, expressly extended over the city of New York by the act of 1870? Unless this question can be answered in the affirmativo the complaint against the police commissioners of the city of New York is well founded, for the act of 1869 excepted such city, as a part of the Metropolitan Police District, fromțits provisions. Sup

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pose, however, I am wrong in the conclusion that the act of 1870, by extending the provisions of the act of 1857 over the whole State, thereby also necessarily extended the act of 1869, which was simply amendatory of that of 1857, over the same territory, when and where was the provision of such act of 1869, permitting the commissioners of excise to "grant licenses for the sale of ale or beer * * to other than those who propose to keep an inn, tavern, or hotel," and which provision was declared to "extend to all portions of the State except the Metropolitan Police District," repealed? There certainly is no statute which directly repeals it, and as repeals by implication are not favored in the law, it must be shown that some later statute contains provisions necessarily inconsistent therewith, before a right so clearly and expressly conferred can be taken away. A careful search by me has failed to discover any subsequent enactment which is repugnant thereto. Plainly the act of 1870 is not inconsistent therewith, for that, as we have shown in the former part of the opinion, only confers the power to grant a general license for the sale of all intoxicating drinks to a hotel keeper, and such general license is not inconsistent with the special one for the sale of ale or beer only by an individual who is not a hotel keeper. The two licenses are of course different, but difference and repugnance are not synonymous expressions. A power to do several acts under circumstances clearly prescribed is not incompatible with or repugnant to an authority to do only one of those acts under a different condition of things, though the two are unlike. This proposition is too clear to admit of discussion, and the question may therefore well be repeated, When and where was the authority given by the act of 1869 to grant an ale or beer license anywhere in the State, except in the Metropolitan Police District, taken away? If it has been, I have been unable to discover the repealing statute. Indeed it was plumply decided as early as December, 1874, by the General Term of the Supreme Court for the Third Department, held by Judges Bockes, Countryman and Landon (O'Rourke v. People, 3 Hun, 225), that the power to grant ale or beer licenses still existed. The opinions of Judges Bockes and Countryman in that case are so exhaustive as to leave nothing to be said, and are therefore referred to as conclusive upon the question at issue. Now if, to make the argument applicable to the case before me, it be conceded, as it seems to me it must, that the power to grant such licenses anywhere in the State except in the Metropolitan Police District exists, why should the act of 1870 be so construed as to make that district an exception to the rest of the State? The act of 1870 certainly repealed its local excise law, and intended to extend all the provisions regulating the sale of intoxicating drinks in the residue of the State over that locality. If it has not done so, it is because of a failure to express the plain purpose. No proper construction of language used as we have endeavored to show, makes such a conclusion necessary, and the evident propriety of so construing statutes as to work equally rather than unequally over the whole State fortifies the argument already made to demonstrate that the act of 1870 in extending the provisions of that of 1857 over its entire territory, necessarily carried those of 1869, which had become a part of such act of 1857, with them. To prevent any misapprehension as to the scope of the foreign opinion, it should be added that whilst in my judgment the parties complained of committed no crime in granting a license for the sale of ale or beer; it is not held that any obligation to grant licenses of that character devolves upon boards of excise. No such question is involved in the proceeding before me, but as the act is very clear ($ 4, ch. 856 of Laws of 1869), it may not be improper to say in its very words, that such licenses are "in their discretion."

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The plaintiffs were champagne merchants at Epernay, in France. The defendant, whose name was the same as that of the plaintiffs, having entered their house and learnt the business, acted for two years as their representative in England, and then wrote a letter to them, by which he undertook not to represent any other champagne house for two years after leaving the plaintiffs' employment, and not to establish himself or associate himself with other persons or houses in the champagne trade for ten years after leaving them. The defendant left the plaintiffs' employment in March, 1877, and in May, 1878, commenced business in London as a retail wine merchant, and sold champagne as well as other wines. In his circulars and advertisements, and on the labels and corks of the champagne bottles were the words "Ay Champagne," but he had no establishment anywhere except in London. Held, that the defendant had committed a breach of the agreement. Held, also, that the agreement was valid, as the restriction was not larger than was necessary for the reasonable protection of the plaintiffs. There is no hard and fast rule that a contract in restraint of trade unlimited as to space is invalid, but the validity depends on the reasonableness of the contract. Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 Eq. 345, followed. Allsopp v. Wheatcroft, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59, disapproved.

A contract against public policy will not be enforced by English courts, though the contract is valid in the country where it is made, and is entered into between foreign traders. A judgment by default was obtained in France against a Swiss, domiciled in England, on a contract entered into by him while on a temporary visit to France. No notice had been given to him of the action. Held, that the judgment was not binding on him. Schibsby v. Westenholz, 24 L. T. Rep. (N. S.) 93; L. Rep., 6 Q. B. 155, considered. Tho circumstances which impose a duty upon a defendant to obey the decision of a foreign court stated.

THIS

HIS was an action to restrain the defendant from carrying on the business of a champagne merchant, and for an order for the payment of certain damages awarded by a French court.

The plaintiffs were Jean and Gustave Roussillon, who carried on the business of champagne merchants at Epernay, in France, under the name of J. Roussillon & Co.

In 1866 they took the defendant, Auguste Roussillon, who was a nephew of Jean Roussillon, into their employment as a clerk, in order that he might learn the business. After ho had been two years in their service at Epernay he was sent to England in order that he might learn English, and they afterward employed him as their traveller in England, Scotland, and other places. This necessitated his being introduced to many of the customers of the firm, and the plaintiffs accordingly suggested to him that for their protection he should enter into an engagement not to compete with them in the event of his employment with them being terminated.

In accordance with this suggestion on the 9th October, 1869, the defendant wrote a letter to the plaintiff, J. Roussillon, in French, of which the following is a translation:

"As a return for the kindness and care of which I have been the object, and the trouble you have taken in my commercial education, I address this letter to you as a proof that I undertake not to represent any other champagne house for two years after having left you, if at any time I leave your house for any reason whatever, whether it be on your part or my own. I

also undertake not to establish myself, nor to associate myself with other persons or houses in the champagne trade (dans le commerce des champagnes) for ten years in case I should leave you as already mentioned above. I enter into these engagements trusting to your assurance that I may rest in the idea that my position is assured in your house except in the event of unforeseen events or of negligence on my part in the affairs which are or shall be intrusted to me, and I promise to do all in my power to maintain and increase the good reputation of your house in the countries I am connected with."

When this letter was written the defendant was staying at Epernay for a few days on his way to England from Switzerland, where he had been spending a holiday. He was a native of Switzerland but resident in England. The defendant continued in the plaintiff's | employ until the 1st May, 1877, when he voluntarily

left them.

In 1878 the defendant established himself at No. 2 Piccadilly place, London, as a champagne merchant, and advertised himself as selling champagne, and the plaintiffs alleged that by his advertisements and circulars he led people to suppose that he was established at Ay, which is in the neighborhood of Epernay, and that he had applied to many of the plaintiffs' customers, to whom he had been introduced as their traveller, to buy his champagne as well as the plaintiffs, all of which they contended was a breach of the contract of the 9th October, 1869.

In September, 1878, the plaintiffs instituted an action against the defendant in the Tribunal of Commerce, sitting at Epernay, to recover damages for the loss sustained by them by reason of the breach by the defendant of the agreement contained in the letter of the 9th October, 1869, and to restrain him from further breach thereof.

On the 6th November, 1878, the Tribunal of Commerce gave judgment in the action. The judgment contained recitals of the facts proved and of the proceeding in the action, and then proceeded in the French language, in the words of which the following is a translation:

"Say that Auguste Roussillon should not represent any champagne house for two years from the commencement of the year 1878, and that during ten years from the same period he should not carry on business as a champagne merchant either on his own account or in partnership. Order that in a week following notice of the present judgment he shall completely cease to trade as a champagne merchant, and shall suppress the words "Ay.Champagne," and the mention of champagne wine from his labels, advertisements, and circulars. This under penalty of 100 francs damages per day for non-compliance for two months after which right shall be enforced."

was residing in England. That those proceedings were taken entirely without his knowledge, and that the first notice he had of them was in November, 1878, when the judgment was handed to him.

From the evidence of a French avocat it appeared that according to the law of France contracts in restraint of trade were not void, and that a judgment by default was void if not executed within six months, unless every thing had been done that could be done to obtain execution.

FRY, J. In this action the plaintiffs seek for an injunction on two grounds. The one is a contract contained in a letter of the 9th October, 1869, and the other is a judgment of the Tribunal of Commerce in France of the 6th November, 1878. The two subjects require entirely separate consideration. With regard to the contract and judgment, but few facts are in controversy between the parties, and it does not therefore appear to me to be necessary to state in detail the history of the case, more especially as I shall from time to time in the course of my judgment refer to the facts which I consider have been proved in evidence before me. Now, the first argument raised on the part of the defendant is that no breach of the contract has been committed by him. It becomes therefore necessary to consider what are the terms of the contract. They are, so far as it is necessary for this purpose to consider them, in these words: "I undertake not to represent any other champagne house for two years after having left you, if at any time I leave your house for any reason whatever, whether it be on your part or on my own. I also undertake not to establish myself, nor to associate myself with other persons or houses in the champagne trade for ten years, in case I should leave you as already mentioned above." The question in dispute has been this: what is the meaning of the words "the champagne trade," in the clause I have read? In my judgment they refer to the trade of exporting from Champagne or importing into this country the wines of Champagne. It has been urged that it involves also the making of the wine in Champagne. It appears to me that that is not a necessary part of the champagne trade, because the trade may be carried on without that, as shown in the present case. The defendant buys his wines in Champagne, and exports them from Champagne into this country, or rather imports them from Champagne into this country, and he affixes to the bottles of wine that he brings over his own brand, which indicates that he is an importer, that he has selected the wine, that in a certain sense, he is a guarantor of the excellency of the wine, and he has placed upon it the name of the place at which he buys the wine, namely, Ay, in Champagne. It appears to me that those acts are a violation 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.

Notwithstanding this judgment, the defendant continued to carry on his business, and to advertise as before, and did not pay the plaintiffs any of the damages awarded by the judgment.

The plaintiffs alleged that they were sustaining considerable loss in consequence of the defendant trading in this manner, and claimed an injunction restraining him from representing any champagne house for two years from the 1st May, 1877, and from carrying on business as a champagne merchant for ten years from the same date; that he might be ordered to pay them the sum of 8911. 9s., the amount awarded by the French tribunal, with interest thereon; and also 500l. damages.

From the evidence it appeared that the defendant was never domiciled in France, but only paid temporary visits to that country, and at the date of the proceedings against him before the Tribunal of Commerce,

be that the defendant shall not act as an importer of champagne from that province into this country, and that trade has been carried on by the defendant. I hold, therefore, that the plaintiffs have established a breach of the contract entered into. In the next place it is said by the defendant that the contract is bad in law. It has been suggested on his behalf that there is no sufficient consideration shown, but as Mr. North has declined, on the ground of the condition and the state of the authorities, to argue that point before me, it does not require adjudication at my hands. In the next place it is said that the contract is not reasonable, and it is unquestionably the law of this country that contracts of this description, being in restraint of the freedom of trade, must be reasonable. Now, what is the criterion by which the reasonableness of contract is to be judged. I will take the law on that point from the judgment of Tindall, C. J., in delivering the judgment of the Court of Exchequer Chamber,

on appeal from the Court of Queen's Bench, in Hitchcock v. Coker, 6 A. & E. 438, where he said (p. 454): "We agree in the general principle adopted by the court, that where the restraint of a party from carrying on a trade is larger and wider than the protection of the party with whom the contract is made can possibly require, such restraint must be considered as unreasonable in law, and the contract which would enforce it must be therefore void." That passage was adopted by Lord Wensleydale, when a baron of the Court of Exchequer, in delivering judgment in Ward v. Byrne, 5 M. & W. 548, 561, and therefore the rule so expressed has the authority of the three Common Law Courts, the Queen's Bench, the Common Pleas, and the Exchequer. If, therefore, the extent of the restraint is not greater than can possibly be required for the protection of the plaintiffs, it is not unreasonable. Another case which in my view throws great light upon the mode in which this question ought to be approached is Tallis v. Tallis, 1 El. & B. 391. There the plaintiff and the defendant had been partners as publishers of books. Part of their trade, called the canvass trade, consisted in publishing books in numbers, and employing travellers to sell such books by canvassing purchasers. The partnership was dissolved, the plaintiff being the continuing partner. The defendant agreed, amongst other things, not directly nor indirectly to be concerned in the canvassing trade in London, or within 150 miles of the General Post-Office, nor in Dublin or Edidburgh, or within fifty miles of either, nor in any town in Great Britain or Ireland in which the plaintiff or his successors might at the time have an establishment, or might have had one within the six months preceding. The action was for a breach of the covenant. It was pleaded, amongst other things, that there were numerous works which the plaintiff did not publish and had no intention of publishing, and that many of such works might be published with advantage to the public by the defendant, aud without injury to the plaintiff, that the canvassing trade applied to ali such books; and that the restraint as to the canvassing trade as applicable to such books was unreasonable. The court upon those pleadings, upon a demurrer, held that the declaration was good, it not appearing that the restraint was unreasonable. And in giving judgment they considered a dictum in Mitchell v. Reynolds, 1 P. W. 181, 191, to the effect that: Wherever such contract stat indifferenter, and for aught appears, may be either good or bad, the law presumes it prima facie to be bad." But instead of adopting that view they called attention to what was said by the Court of Exchequer in Mallan v. May, 11 M. & W. 653, 667, that "it would be better to lay down such a limit as under any circumstances would be sufficient protection to the interest of the contracting party, and that if the limit stipulated for does not exceed that, to pronounce the contract to be valid." And further on in their judgment they said this: "Even if the facts therein stated are taken to be admitted by the demurrer, and the reasonableness of the restriction in question is to be considered with reference to those facts, together with the facts alleged in the declaration, still we think the pleas bad. For although the books capable of republication may be at most infinite, still the number of subscribers to such republication coming out in numbers is limited; and although if the defendant's books are excluded, it does not follow that the plaintiff's books would be purchased, still we cannot ascertain that the number of subscribers to the plaintiff's books would not be diminished if the defendant competed with him by offering other books, especially if they were of a similar character. And unless the defendant made it plainly and obviously clear that the plaintiff's interest did not require the defendant's exclusion, or that the public interest would be sacrificed if the defendant's

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intended publications are excluded, according to the general rule before referred to we ought not to hold the contract void." In other words the Court of Queen's Bench threw upon the defendant, who alleged the invalidity of the contract on this ground, the burden of showing that it was plainly and obviously clear that the protection extended, and the proposed exclusion of the defendant's publications was, beyond what the plaintiff's interests required. And such, in my opinion, ought to be the rule of law of this court upon this point, because it is to be borne in mind that the defendant is seeking to put a restraint upon the freedom of contract, and he who does that must, I think, show that it is plainly necessary for the purposes of freedom of trade. In that point of view I adopt the view expressed by the Master of the Rolls, upon the subject of the necessity of courts being careful how they invade the freedom of contract, in Printing and Numerical Registering Company v. Sampson, 32 L. T. Rep. (N. S.) 354; L. Rep., 19 Eq. 462, 465. The question then arises, does the defendant in this case discharge the burden so cast upon him. In answering that I must consider the facts of the case. It appears that at the time this contract was entered into, the defendant had for some two years been acting as the representative of the plaintiffs in England. His instructions appear to have been under their direction to travel over all parts of England and over Scotland, and at a subsequent date, not so far as I know at this date, he visited Holland for the purposes of their trade. Further than that, he had, by a residence of some four months in Epernay, at the house of the principal plaintiff, acquired apparently a knowledge of the plaintiffs' trade as carried on in France. He was therefore acquainted with the trade at both its ends. He was a relative of the plaintiffs and bore their name. Looking, therefore, at the extent of trade carried on by the plaintiffs and its diffusion over the whole of England; looking at the facilities which now exist for carrying on trade in various places by means of the freedom of communication which exist between them, I cannot say that it has been made plain and obvious to me that this contract exceeds in its extent that which the plaintiffs were entitled to for the protection of their trade. No doubt criticisms may be made on the contract, and it may be said, as it has been said, that you can conceive cases which the restraint would apply, in which no injury would be done to the plaintiffs. That observation applies to Tallis v. Tallis, 1 E. & B. 391, and when I bear in mind the obvious channels through which trade is influenced, and the great difficulty of providing for every possible case in which injury might arise, without including certain possible cases in which injury might not arise, I have come to the conclusion that it has not been shown to me that this contract is larger than is necessary for the reasonable protection of the plaintiffs, and I hold therefore that that objection fails. But then it is said that over and above the rule that the contract shall be reasonable, there exists another rule, viz., that the contract shall be limited in its space, and that this contract being in its terms unlimited, and therefore extending to the whole of England, meaning England and Wales, must be void. Now, in the first place, let me consider how far such a rule would be reasonable. There are many trades which are carried on all over the kingdom which by their very nature are extensive and widely diffused. There are others which from their nature and necessities are local. If this rule existed it would afford a complete protection to the latter class of trade, whilst it would prohibit complete protection of the former class, and an injury which ought not to be wrought without good reason would arise. In the next place, the rule, if it existed, would apply in two classes of cases. It would apply where the want of limitation of space was unreasonable, and it would apply also where the univer

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