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Practical Points. -Restraint of Trade. thereby to obtain for himself, at the cost tion : and upon an action being brought of the plaintiffs, an undue and improper against him for these breaches of the advantage.

agreement, he demurred, on the ground See the able opinion of Vice Chancel that the agreement was contrary to public lor Sandford in the case of Coates v. Shep policy, and illegal, in this respect, that it herd, reported in this work, v. 3, 404. restrained him from supplying bread and

flour to particular persons wherever they

might reside, without limit in point of RESTRAINT OF TRADE.

space as to those persons, and under all The principle upon which the law, in circumstances, whether they changed cases of the sale of a good will, upholds their residences, or continued customers a covenant restraining the vendor from of the plaintiff or not, and that such recarrying on the same business within cer- straint was larger and wider than the protain limits, is founded on the necessity of tection of the plaintiff could possibly securing to the vendee the enjoyment of require. In support of the demurrer, it was that which he has purchased. If such a argued that the customers might remove covenant were not enforced, nothing could from the plaintiff's neighborhood, and go prevent the assignor of a good will from to a distant part of the country, where the soliciting and getting back his customers, defendant might be the only baker, and and using for his own profit the very thing yet this agreement would preclude him which he has agreed to sell. At the same from supplying them. Tindal, C. J., said, time, any restriction going beyond the -"With respect to the first part of the limit which is effectual for the security of agreement, that the defendant would not, the vendee, is deemed an unreasonable directly or indirectly, set up or carry on, restraint of trade, and void on principles during the term, the business of a baker, of public policy, which favors trade and within one mile of the premises disposed competition, not for the sake of the trader, of, that clearly is within the rule that is but for that of the consumer. These doc- admitted to be sanctioned by all the trines have been established by a long cases. But it is insisted that the latter series of cases, extending from Hunlocke part of the agreement, whereby the dev. Blacklow, 2 Saund. 156, to Mallan v. fendant engages that he will not, &c., is May, 11 M. & W. 653. In the case of such a restraint upon his right to trade, as Ramire v. Irvine, 8 Scott N. C., 684, a renders the agreement contrary to public question arose, whether the restraint was policy, and therefore void. In the first unreasonable on account of its extent and place it is to be observed, that this is not possible consequences. Upon the assign- a general restraint of trade, but only rement by the defendant (who was a baker) strains the defendant from trading with a of the lease of his shop and the goodwill limited number of persons, whose names of his business, he covenanted that he were known to the defendant at the time would not set up or carry on, directly or he entered into the contract; and that indirectly, during the term of fourteen would not carry the case any further than years, the business of a baker, within one the first part of the agreement, provided mile of the said premises, under the pay- the customers continued to reside in the ment of the sum of 2001., to be sued for same place. But it is argued that the and recovered by way of liquidated dam-customers may wander into another disages, for each and every month in which trict, and that this contract would restrain the defendant should commit any breach the defendant from supplying them with of the last mentioned agreement; and bread and flour, withersoever they might also, that he would not, during the said go; and it might be that they could obterm, solicit the custom of, or knowingly tain so necessary an article from no one supply bread or flour to any of the cus- else. If, however, we see that the contomers then dealing at the said premises, tract is a reasonable one at the time it is without the consent of the plaintiff, under entered into, we are not bound to regard the penalty of 2001., as liquidated dam- such improbable and extravagant continages for such infraction. The defendant gencies." Maule, J., also observed, subsequently supplied bread to certain of “ If we are to give the contract a reasonhis old customers named in the declara- | able construction, such reasonable con

In Chancery.- Jeremiah Green et al v. Truman B. Hicks. struction would probably exclude the convenientes. * * * The rule imposes no somewhat exaggerated case that has been hardship on tradesmen. If they do not put, of this baker and some of his old intend to pander to extravagance, let them customers becoming the sole inhabitants not give credit. In one of these cases the of some wilderness, where bread would bill was allowed to run on for two years be procurable only from him. The pos- and a half. That could have been done sibility of some such extravagant case only, lest, if the bill were sent in earlier, happening does not make unreasonable a the supply of such articles might be stoprestriction that is otherwise a reasonable ped. Tradesmen must understand that, and just one."-Ramire v. Irvine, 8 Scott if they choose so to act, they are trusting N. C. 684.

only to what they call the honor of the parties supplied.”

WIGHTMAN. J.-" The articles of which

this bill is composed cannot be necessaINFANT-NECESSARIES.

ries, if they cannot be supplied without

giving credit.” Wharton v. MackenzieThese cases give rise to the perpetual- Cripps v. Hills, 5 Q. B. 606. ly recurring question, whether certain articles supplied to infants are “necessaries." The defendants were undergrad

In Chancery. uates at Oxford; and the articles in question consisted of wild ducks, grouse, fowls,

Before the Honorable RUEBEN H. WALWORTH, desserts, &c. The general rule is clear,

| Chancellor of the State of New-York. that infants are liable for necessaries according to their condition in life; but the JEREMIAH GREEN et al v. TRUMAN B. law protects them against improvident

Hicks. contracts. It was laid down by Parke, B. in Peters v. Flemming, 6 M. & W. 46, CREDITOR's BILL—EXAMINATION BEFORE that the term “necessaries" is not to be MASTER OF DEFENDANT-FORM OF ORDER construed in its literal or unqualified sense, of REFERENCE TO APPOINT RECEIVER, but with express regard to the defend WHERE DEFENDANT APPEARS BUT DOES ant's station and degree in life. In the NOT GIVE THE CONSENT REQUIRED BY cases before us, the jury had found a ver THE RULE-WHAT QUESTIONS DEFENDdict for the plaintiff; but the court order ANT IS BOUND TO ANSWER BEFORE MAS ed new trials. Lord Denman, C. J., ob TER. serving, that, “ For a young man in some

Under the usual order of reference to appoint a situations of life, not only clothes may be

receiver in a creditor's suit, the complainant is not considered necessaries, but a watch, and authorized to examine the defendant, for the the like articles, which he is expected to mere purpose of ascertaining whether he had wear in that condition of life; but with

not made a fraudulent assignment of his property

previous to the commencement of the suit, unless respect to the articles here supplied, is it

such property is still in his possession or under an outrage to common sense to say that his control. they can possibly be necessaries! It may Whether the receiver has the power, under any perhaps seem harsh and illiberal to refuse clause of such an order, to examine the defend

ant or any other person as a witness to establish payment of these things. But it is the

the fact of such a fraudulent sale or assigument, duty of tradesmen to make themselves

quere. acquainted with the circumstances of the where property is not in the possession or under parties they are supplying; and, above

the control of the defendant, the proper course

for the complainant is to make the grantee or all, it cannot be necessary to give long

assignee a party to his suit. credit. A tradesman who chooses to sup Form of order of reference to appoint a receiver ply such things may require ready money, where the defendant appears but does not give or send in his bill speedily; otherwise the

the consent under the 191st rule.

What questions defendant is bound to answer on results may be most embarrassing and de

his examination before master. grading. The law is bound to protect parties from such consequences," Cole- This was an appeal from an order, the ridge, J. “The articles supplied must be circumstances of which sufficiently appear necessaries, and not merely comforts or in the adjudication.

In Chancery– Thompson and wife v. Ex’rs of Carmichael. E. F. Bullard, for the appellants. I and to take from such receiver the re

quisite security, should direct the defendP. Cagger, for the respondent.

ant to assign to such receiver, under the The ChancELLOR.—Under the usual direction of the master, all such property, order of reference to a master to appoint &c. It should also require him to deliver a receiver in a creditor's suit, the com- over to such receiver, on oath, under the plainant is not authorized to examine the direction of the master, such property, defendant for the mere purpose of ascer- &c., or such parts or portions of the same taining whether he had not made a fraudu- as are in his possession or under his lent assignment of his property previous power or control. The order should also to the commencement of the suit ; unless direct that the complainant have leave to such property is still in the possession or examine the defendant or any other perunder the control of the defendant. son, on oath, before the master, for any

And it seems at least doubtful whether of the purposes of such reference; and the receiver has the power, under any also to compel the production of such clause of such an order, to examine the books and papers as the master may deem defendant, or any other person, as a wit- necessary." ness to establish the fact of such a fraudu-l Under the usual order of reference to aplent sale or assignment; there being no point a receiver, the defendant, on his exstatutory provision authorizing the re- lamination before the master, is not only ceiver to set aside or avoid such a sale, if bound to answer the direct question, what the defendant himself, at the time he was property, &c., he owned or had a beneficial directed to assign to the receiver, would interest in at the time specified in the not have had the right to do so. The order, but every other question which statute only makes the fraudulent sale may indirectly aid in the ascertainment of or transfer void as to the creditors who that, and whether such property was in are intended to be defrauded.

his possession or under his control at the Where the property is not in the pos- time of his examination, so as to be the session or under the control of the defend- proper subject of an order or direction of ant, so as to make it his duty to deliver it the master, that he should deliver the up to the receiver, leaving the fraudulent same to the receiver. It is not sufassignee or grantee to come in and be ficient for him to answer, generally, that heard pro interrero suo, the proper course he has no property other than that specifor the complainant is to make the grantee fied by him in his answer to the general or assignee a party to his suit, so as to question. have the receivership extended to him. I Order appealed from reversed ; and

Although the rules of the court pre- the application for a further examination scribe the substance of the order or decree of the defendant granted. Costs to abide in a creditor's suit, where the defendant the event. suffers the bill to be taken as confessed against him for want of appearance, or gives a written consent in the form pre

pre Before the Honorable LEWIS H. SANDFORD, scribed by the 191st rule, no directions

Assistant Vice Chancellor of the First Circuit. are contained in the rules as to the form of the order of reference to appoint a re- / MAJOR THOMPSON AND WIFE V. EXECUTORS, ceiver where the defendant appears, but &c., op CARMICHAEL.-- September 12, does not give the consent mentioned in December 3, 1845. the 191st rule.

In cases of the latter description, the STATUTORY PROVISION WITH REFERENCE TO order of reference, after authorizing the

BRINGING ADVANCEMENTS INTO HOTCHmaster to appoint a receiver of all the

POT. property, equitable interests, things in action and effects which belonged to, or The provisions in the statute regulating descents, were held in trust for the defendant, or in

for bringing advancements into hotch-pot in the which he had any beneficial interest at

division of the real estate, does not apply where

there is a will disposing of a part of the decethe time of the commencement of the dent's property, either real or personal. It resuit, except such articles as are exempt, lates to a total intestacy only.

In Chancery.—Thompson and wife v. Ex’rs of Carmichael. This was held in a case where there was a will I is provided that if any child of an intestate which was decreed to be invalid, except as to I shall have been advanced by him. &c., the some specific legacies, and a charge for the reasonable support of the widow.

portion shall be estimated in the division The same doctrine has always prevailed in England, and distribution of the real and personal

under the statute 22 aud 23 Car. 3, ch. 10, from estate of the intestate. which ours was taken.

It is contended on the one side that these The reasonable support of the widow under the

will, is not to be determined by the amount ne- provisions apply when there is an intestacessary for her bare subsistance; but regardcy pro tanto ; and on the other side, that must be had also to the extent and income of the they are not applicable at all where there estate.

is a will.

In the first place it is to be observed The bill was filed for a partition of the that the words used in the Revised Stat. real estate of Daniel Carmichael deceased,

sed, utes are the same as those in the parallel against huis executors, heirs and devisees. statute published in the revised laws of On the first hearing of the cause, the trusts

1813; and that statute had been continued of his will by which all his lands were

without change in this respect, from its first vested in his executors, were decreed to

enactment in this State, on the 20th Febbe void; and it was referred to a master

ruary, 1787, (1 Greenleaf's Laws, 363, to take proofs and make the proper inqui- 183: i Rev. Laws 313. & 16.) ries preliminary to a decree for a partition.

Our first act was taken from the statute The case came before the court again 22 and 23 Car. 2. ch. 10. made perpetual on exceptions to the master's report. The hy

| by the act 1 Jac. 2, ch. 17, and its lanpoints upon which the opinion of the court

guage on this subject is the same. was sought sufficiently appear in the ad

ad- We may therefore look for our guidance judication.

to the construction first put upon the act Charles O'Conor, for the complainants.

of the 22d and 23d Charles.

It appears to have been settled in EngD. M. Cowdrey, for the defendants. land, soon after the passage of the law,

that the child who had been advanced The Assistant VICE CHANCELLOR.- was not required to bring his advanceThe first question arises upon the ad- ment into hotch-pot, except in the case of vancement to the complainants by the a total intestacy. Vachell v. Jefferys, Prec. testator. And independent of the point in Ch. 169, and Cowper v. Scott, 3 P. Will. whether the bond was intended as a gift 124, appear to be direct authorities on or as a portion to Mrs. Thompson; it is the point; and they are confirmed by Sir claimed that the statute relative to ad- William Grant's opinion in Walton v. vancement, is not applicable to this case. Walton, 14 Ves. 324. This is also laid

The result of the former decree is, that down as good law in 3 Bac. Abr., Exec. Daniel Carmichael died without making and Adm. K. And see Hawley v. James, any valid disposition of his real estate, or 5 Paige, 450, 451—per Chancellor, and of the mass of his personal property. He Wheeler v. Sheer, Mosely's R. 301, 304. left a will, which is valid so far as it be- The same thing was decided under the queaths a small specific legacy to each of statute of distributions in South Carolina, his two sons, and gives to his wife similar in a series of cases extending from 1802 legacies, together with a sum sufficient for till 1833. Sinkler v. Legatees of Sinkler, her support charged upon his whole pro- 2 De Sauss. Eq. R. 139, which was a case perty.

of partial intestacy as to personal estate ; The statute law exclusively regulates Snelgrove v. Snelgrove, 4 ibid. 274, 291, the subject of advancement.

where there was a total intestacy as to the This case dous not fall within the pro- real estate through a defect in the execuvisions contained in the article of the re- tion of the will, one of the witnesses being vised statutes relative to making distribu-l a devisee, but the will was valid as to the tion to the next of kin, because there is personally; Newman v. Wilbourne, 1 Hill's real estate which descended to Carmi- Ch. R. 10; and McDougald v. King, 1 chael's heirs. (2 R. S. 97, 98, § 76 to 78.) Bailey's Eg. R. 154.

In the chapter“ Of title to real property I was referred to two decisions in Teny descent,” (1 R. S. 754, § 23 to 26,) it nessee as being adverse to these. In one, In Chancery.—Thompson and wife v. Ex’rs of Carmichael. devisees under a will were required to ser case might utterly frustrate the intention bring their devises into hotch-pot, in order of the testator. to obtain a provision for a posthumas Where one has advanced a part of his child, who was otherwise unprovided for. children, and then by will devises property In the other case, on a division of after to the residue, leaving other property unacquired lands which did not pass by the disposed of, it is a legal and reasonable prewill, the children of a second marriage, sumption, that he intended the latter to go who by the will took all the lands the tes- to both classes of his children equally, if tator had at its date, were compelled to any of it remained at his death. As to bring those lands into hotch-pot, in order one class he has been his own executor. to share in the former.

| As to the other he has by his will placed Under our Statute, I do not think that them upon an equal footing with the first a provision by will can be deemed an ad-class. vancement.

| Now if the defendants' construction of On the statute itself, (1 R. S. 754,) a (the statute is to prevail, the clear intent total intestacy appears to be contemplated in the case put will be utterly destroyed. It is true that in some of the previous sec- The second class of children cannot be tions of the same chapter, the word intes- required to bring their legacies and devised tate is used as correlative to the words in estates into hotch-pot, for those are in no the first section, person who shall die with sense an advancement. And they can out devising real estate. But this is evi-compel the first class to bring in and didently to be restricted to its connection vide all the property they received from with the subject matter, that is, to lands their father in his life-time, or else exclude undevised. A person who had made a them from the whole estate which was will and disposed of all his personal pro- not disposed of by the will. perty would nevertheless be an intestate. The same consequence will ensue as to under those previous sections, as to the after acquired lands, where the will does portion of his lands undevised, however not dispose of them, and this is a case of insignificant.

frequent occurrence. So of any undisThe twenty-third section commences a posed surplus. Again, take this case. new subject. It is not “the intestate," or | There is a specific legacy to two of the such intestate;" referring to what goes children. They are trifling, it is true, but before; but the words are "an intestate,” if they had been a valuable library and a and the provisions relate to personal es- service of plate, the principle would be tate which has not before been mentioned the same. How can the courts arrive at in the chapter, as well as to real estate. the equality which is the foundation of It is used as a general term, without quali- the statute as to advancements, where the fication; and as such, its meaning is well testator has given to one and withheld known and clearly defined. Both in its from the others ? They cannot bring legalegal and popular sense, it means a person cies into the fund for an equal distribution; who dies without making a will.

and in every case of partial intestacy, the The same language“ an intestate," courts would be quite as likely to overwithout addition or qualification, is used throw the intent of the testator by interin the Revised Statutes in the article rela- fering in the mode which is sought here, tive to granting letters of administration. as they would to carry it into effect.

In short, a man who dies leaving a will The safer course, it appears to me, is is not an intestate.

to follow the plain terms of the statute, This case must be decided upon general and the English decisions, making no principles and not upon its peculiar fea- constructive intestacies, but leaving it to tuies. It may be very plain to me that the legislature by more full enactments, to this testator, if he were now to make his remedy the injustice, if any is found to will anew, would compel his eldest daugh-exist. ter to account for the bond of $1000 to- In regard to the annual allowance made wards her distributive share, or exclude to the widow for her reasonable support, her entirely. But the same construction, I am satisfied with the decision of the which in this case would probably ap- Master. What is reasonable for her, is proximate towards his intention, in anoth- not to be determined by the amount ne

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