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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. He 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 French 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 plaintiffs 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 mauner, and claimed an injunction restraining no 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 bur. of 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 publicatious was, beyond what euforce 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, 6 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 Common 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- Numericul Registering Company v. Sampson, 32 L. T. proached is Tallis v. Tallis, 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 can- 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 orer 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' trado as or might have had one within the six months carried ow in Frauce. 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 and its diffusion over the whole of England ; looking of such works might be published with adrantage to the at the facilities which now exist for carrying on trade public by the defendant, and 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 ou tho contract, and it restraint was unreasonable. And in giving judgment may be said, as it has been said, that you can conceire they considered a dictum in Mitchell v. Reynolds, 1 P. cases which the restraint would apply, in which no inW. 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, 607, that out includivg 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 which 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 plaintiffs 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, it it plainy 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 uppublio interest would be sacrificed if the defendant's reasonable, and it would apply also where the universality of the contract was reasonable. Now, in the J., in the case of The Leather Cloth Company v. Lorformer class of cases, those in which the universality sont, 21 L. T. Rep. (N. S.) 661; L. R., 9 Eq. 345, wbere he was unreasonable, the rule would operate nothing, be- undoubtedly came to the conclusion that no such rule cause that is already covered by the rule that the con- was laid down as has been insisted on before me. Havtract must be reasonable. It would therefore only | ing referred to the cases ho says (p. 353): “I do not operate in cases in which the universality of the prohi- read the cases as having laid down that unrebuttable bition was reasonable, that is to say, it would only presumption which was insisted upon with so much operate where it ought not to operate. For the exist- power by Mr. Cohen. All the cases, when they come ence of such a rule I should require authority. In the to be examined, seem to establish this principle, that next place, this rule is pressed upon me as an artificial all restraints upon trade are bad as being in violation rule, an absolute rule, or what has been called by the of public policy, unless they are natural and not unlate Wickens, V. C., a hard and fast line, or a hard reasonable for the protection of the parties in dealing and fast rule. Such a rule may always be evaded by a legally with some subject-matter of contract.” I have, single exception. No exception to a rule of this de- therefore, upon the authorities, to choose between the scription can be said to be colorable, because you can two sets of cases; those which recognize and those only judge whether the exception be colorable or not which refuse to recognize this supposed rule, and for by the principle of the rule; but if the rule, as sug- the reason I havo already mentioned, I have no hesitagested in this case, be really an artificial one, without tion in saying that I adhere to those authorities which principle, there is no criterion to tell whether the eva- refuse to recognize this rule, and I consider that the sion is colorable or not. It appears to me for these cases in which an unlimited prohibition has been reasons that I ought not to hold such a rule to exist spoken of as void, relate only to cases where such a prounless it be clearly established. Then how stand the hibition has been unreasonable. It follows, therefore, authorities upon the point? There are undoubtedly from what I have said that in my judgment the plaintcases in which it has been said that the restraint must iffs have established their right upon the contract to not be universal. Such are the cases of Warde v. have an injunction, the terms of which I will mention Byrne, 5 M. & W. 548, and Hinde v. Gray, 1 M. & G. hereafter. It appears to me that no sufficient evidence 195, but looking at the judgments in those cases, and has been given to induce me to award substantial damreading them with a view to the subject-matter, they ages to the plaintiffs in this case, and I therefore appear to me to relate only to cases in which the uni- award them the sum of 1s., and no more. Before versality is unreasonable, and more than once in Warde parting with this part of the case it is desirable to refer v. Byrne the rule is so explained, although I candidly to two other points noticed by Mr. Cookson, because admit that you may select other passages in the judg- they were fully argued by him, and as to one of them ment in which the court seems to say that the univer- the argument was renewed in the reply. He has sality is of itself an objection to the contract. But insisted that even if the contract of the letter of the undoubtedly Wickens, V. C., of whose judgments I 9th October, 1869, was void by the law of England as can never speak without the highest respect, came to against public policy, yet inasmuch as that contract the conclusion that such an artificial rule existed, and was made in France it must be good here; and accordso he expressed himself in the case of Allsoppv.Wheat- ingly he has proved that the law of France knows 10 croft, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59. He such principle as that by which unreasonable contracts says (p. 64) that "there has been a natural inclination in restraint of trade are held to be void in this country. of the courts to bring within reasonable limits the doc- It appears to me to be plain, on general principles, that trine as to these covenants laid down in the earlier cases, this court will not enforce a contract against the pubbut it has generally been considered in the latter as well lic policy of this country, wherever it may be made. as in the earlier cases, that a covenant not to carry on It appears to me almost absurd to suppose that the a lawful trade, unlimited as to space, is on the face of courts should enforce here what they consider to be it void. This seems to bave been treated as clear law against public policy, simply because the contract hapin Warde v. Byrne, 5 M. & W. 548, aud in Hinde v. Gray, pens to have been made somewhere else. In the next 1 M. & G. 195, and in other cases; and the rule, if not place he urged that although the policy of this country obviously just, is at any rate simple, and very couve- promoted trade amongst its native subjects, there was no nient. No doubt in the case of The Leather Cloth Com- such policy in favor of the trade by foreign merchants, pany v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 and the defendant, being a foreign merchant, he said Eq. 345, James, L. J. (then Vice-Chancellor), threw he was exempt from the leaning of the English law in some doubt on the existence of a hard and fast rule favor of trade. It appears to me that that view canwhich makes a covenant in restraint of trade invalid not be substantiated, and that an elementary point if unlimited in area." There are earlier cases than the may be met by a citation from an elementary book, one before James, V. C., which seem to me to be iu- and I will, therefore, only refer to a passage in Mr. Jusconsistent with the existence of the supposed hard and tice Blackstone's Commentaries, in which he deals fast line. In Whittaker v. Howe, 3 Beav. 383, the case with the mode in which the English law has regarded relating to attorneys, it was stipulated that the busi- trade by foreign merchants. He says (vol. 1, p. 230): ness should not be carried ou in any part of Great Brit- “The law of England, as a commercial country, pays ain for twenty years; and again in Jones v. Lees, 1 H. & very particular regard to foreign merchants in inN. 189, the covenant was against selling a particular ar- numerable instances;" and then he goes on to refer ticle anywhere in England without the invention of the to the decision of Magna Charta in favor of foreign plaintiff applied to it, and the objection that the cove- merchants. I hold, therefore, that neither of those nant was unlimited as to space was taken. “It is ob- two arguments on the part of the plaintiffs can sucjected,” said Bramwell, B., " that the restraint extends ceed, and I only refer to them because they have been to all England, but so does the privilege. The cases fully argued at the bar. I next approach the question with respect to the sale of a good-will do not apply, be- of the judgment obtained by the plaintiffs in the Tricause the trade which is the subject-matter of the sale bunal of Commerce at Epernay on the 6th November, is local, and therefore a prohibition against carryingit on 1878. That judgment, according to the evidence before beyond that locality would be useless." In other words me, was obtained without any notice to the defendant. the learned judge explains the inclination of the courts He knew nothing of the pendency of the proceedings against the universality of a prohibition applying only until they had matured into a judgment. It is not to cases where the subject-matter of the sale was itself shown before me that according to the law of Franco local. That is just the view I take of the earlier cases. the defendant has had any opportunity, or that there Still more important are the observations of James, L. is any power in him to set aside that judgment. The


question was put to the French advocate who gave evi- way submitted; the result of which is that I hold that dence, and he seemed to know nothing of any such this judgment is not capable of being enforced in this provision in the law as seems to have been proved in country, and that the whole of the relief sought by the some other cases. Further than that, it has been shown plaintiffs in the present case in respect of that judgby him that this judgment is void, according to the ment fails. Having regard to the large extent to French law, if it was not executed within six months, which the plaintiffs have failed, I think that the reaor if the utmost efforts to execute it were not taken. sonable mode of dealing with the costs will be to award It has not been shown to me that such efforts have no costs, but to let each party bear his own costs. been taken, or that execution has been had upon this There will therefore be judgment for the plaintiffs to judgment. That is the state of facts with regard to the extent of an injunction restraining the defendant this judgment. Now arises the question of how far from carrying on busivess as an importer of chamthe defendant is bound by it, and the law upon this pagne for the period of ten years from the 1st March, point I think I may conveniently take from the case 1877, and from in any other manner acting in contraof Schibsby v. IVestenholz, 24 L. T. Rep. (N. S.); L. vention of that contract, with one shilling damages Rep., 6 Q. B. 155, which has been so much cited and and no costs. And I dismiss the action so far as it discussed in the course of this case. In that case the seeks to enforce the judgment. court considered that the true principle on which foreign judgments are enforced by courts of this country,

UNITED STATES CIRCUIT AND DISTRICT and they say, referring to the case of Goddard v. Gray

COURT ABSTRACT.* (p. 159): “We think that, for the reasons there given, the true principle on which the judgments of foreign tribunals are enforced in England is that stated by


TO WHICH NATIONAL Baron Parke in Russell v. Smyth, 9 M. & W. 810, 819,

BANKS ARE PARTIES. — (1) The Federal courts bave and again repeated by him in Williams v. Jones, 13 M.

jurisdiction over all suits by and against National & W. 628, 633, that the judgment of a court of compe

banks, irrespective of the subject-matter. U. S. R. S., tent jurisdiction over the defendant imposes a duty or

$ 629; First Nat. Bank of Omaha v. County of Dougobligation on the defendant to pay the sum for which

las, 3 Dill. 298; Bank of Bethel v. Pabquioque Bank, judgment is given, which the courts in this country

14 Wall. 383–395; Kennedy v. Gibson et al., 8 Wall. 498; are bound to enforce; and consequently that any thing ing merely nominal or personal parties has no effect

Osborn v. United States Bank, 9 Wheat. 738. (2) Joinwhich negatives that duty, or forms a legal excuse for not performing it, is a defense to the action." , What

either to confer or exclude the jurisdiction; but trusare the circumstances which have been held to impose tees, executors, and the like are not formal parties, upon the defendant the duty of obeying the decision

within the meaning of the rule, where in fact interof a foreign court? Having regard to this case, and to

ested in the litigation. Accordingly, where two or the subsequent case of Copin v. Adamson, 31 L. T.

three persons, claiming a certain fund which was in Rep. (N. S.) 242; L. Rep., 9 Eq. 345, they may, I think,

the custody of a National bank, brought their bill in be stated as these. The courts of this country con

equity against the bank and a third claimant, and the sider the defendant bound where the defendant is a

bank exhibited its cross-bill, praying that the parties subject of a country which the foreign judgment might interplead, this was held to conser jurisdiction, has been obtained; where the defendant was resident although but for such cross-bill the jurisdiction was in the country when the action began; where the de

doubted. Browne v. Strode, 5 Crauch, 303; Wormley fendant in his character of plaintiff has selected the

v. Wormley, 8 Wheat. 421; Wood v. Davis, 18 How. forum in which he is afterward sued by the other

467; MoNutt v. Bland, 2 id. 9; Knapp v. Railroad Co., plaintiff; where the defendant has voluntarily ap

20 Wall. 117. Ciro. Ct., Colorado, 1880. Foss v. First

National Bank of Denver. Opinion by McCrary, J. peared, and where he has contracted to submit himself to the forum in which the judgment was obtained; and MARITIME LAW - BOTTOMRY BOND – COLLISION — possibly, if the case of Becquet v. M'Carthy, 2 B. & Ad. ORDER OF LIENS.- A claim for damages caused by a 951, be right, another condition must be added, where collision occurring during the voyage is entitled to the defendant has real estate within the jurisdiction preference over a bottomry loan made upon the same iu respect of which the cause of action arose whilst he voyage, prior to the happening of such collision. In was within the jurisdiction. Now, none of these cases The Almi, 1 Week. R. 118, it is said: “The creditor in include the present case. In the present case the damage has no option, no caution to exercise; the contract was made between the plaintiffs, or one of creditor on mortgage or bottomry has. He may conthe plaintiffs, a French subject, and the defendant, a sider all possible risks, and give credit or not as he may Swiss subject, at the time the contract was made dom-| think most advisable for his interest. He has an altericiled in Switzerlaud, but resident in England, he hav- native; the creditor in damage has not.” The preforing been for some two years established as the English ence of a creditor in damage over a lender on botcorrespondent or representative of the plaintiffs' firm. tomry has been considered by some to rest upon the He made the contract during a short stay at Epernay, general rule of the admiralty, that maritime liens are on his return home from a visit to his mother in paid in the inverse order of their inception. The Switzerland. At the time of making the contract American, 6 Reporter, 277. But it seems that the there was no intention on his part, or so far as reason of the general rule fails when the demand comI can gather, on the part of the plaintiffs, that peting with a bottomry arises out of a collision, for the defendant should take up his residence in France, one cannot conceive it possible to say that a prior and it does not appear to me that either party con- lender on bottomry has derived any benefit from a templated the performance of tho contract in France, subsequent collision. The value of the lender's secualthough, the terms of it being universal, it might be rity cannot be enhanced by a subsequent collisiou, nor observed or broken anywhere. In that state of cir- could such a collision in any way tend to preserve the cumstances, can I find any thing which makes it rea- lender's security for him, but the contrary. Dist. E. sonable to say that the defendant ought to be bound | D., New York, June 26, 1880. Force v. Ship Pride of by the decision of the foreign court? I am at a loss to the Ocean. Opinion by Benedict, J. find any circumstance which renders it reasonable,

RECEIVERS ACTIONS AGAINST - CONSTITUTIONAL and therefore it appears to me that the defendant is at

LAW – JURY TRIAL.- (1) Property in the hands of a liberty to say that he is not in any way bound by the receiver is in custodia legis. His possession is the posjudgment so obtained against him in the foreign court, and without notice to him, and to which he has in no

* Appearing in 3d Federal Reporter.


session of the court appointing him. No suit can be that the amount of the rent to be paid annually for the brought against him to disturb his possession, or to next five years should be six per cent on the appraised charge him with liability for an act done in the per- value of the premises, to be ascertained by appraisers, formance of his duties as such receiver without the one to be selected by each party, and they to select consent of such court. Any one instituting such a suit another, in case they could not agree, it was held that without leave may be enjoined or attached for con- the contract was not within the statute of frauds as to tempt. The proper proceeding is to apply to the court the rent to be paid for the second five years. Brown appointing the receiver by petition, setting forth v. Bellows, 4 Pick. 179. (2) Where the parties to a therein the grounds of complaint. Thereupon the lease provide for rent to be paid yearly, at six per cent court will direct a trial by a jury, reference to a mas- on the appraised value of the demised premises, to be ter, or sucb other mode of proceeding as in its discre- ascertained by the selection of property-holders, this tion it may deem best. (2) The right of trial by jury is not a submission to arbitration, and no notice to in such a proceeding against a receiver, on a cominon- | the parties is necessary beforo making the appraiselaw cause of action, is not an absolute right, but the ment, unless the lease so requires, and the finding of granting or withholding thereof lies within the sound the appraisers, when selected, will be conclusive upon discretion of the court. Such a proceeding is not a the parties, except for fraud. The cases on this sub“suit at law" within the provision of the Constitu- ject are not harmonious. Peters v. Newkirk, 6 Cow. tion guaranteeing the right of trial by jury. In this 103, and McMahon v. N. Y. & Erie R. R. Co., 20 N. Y. case upon application of bondholders of the Indianap- 463, rule that notice is required. But see Elmendorf v. olis, Cincinnati & La Fayette Railroad, in a suit to Harris, 5 Wend. 521. The New York rule is not foreclose their security, a receiver was appointed to adopted in Illinois. McAuley v. Carter, 22 Ill. 53; operate the road. During such operation a train ran Korf v. Lull, 70 id. 420. See, also, Leeds v. Burrows, over a Mrs. Cork. A petition was filed in the foreclos- | 12 East, 1; Lee v. Hemmingway, 3 Nev. & M. 860; Colure proceeding by her husband, as administrator, to lins v. Collins, 26 Beav. Ch. 306; Garred v. Macey, 10 recover damages for her death. Held, that petitioner | Mo. 161; Currey v. Lackey, 35 id. 389; Garr v. Gomez, was not entitled to a trial by jury. Jones' R. Sec., $S 9 Wend. 649; Mason v. Bridge, 14 Me. 468; Oakes v. 502-3; Story's Eq. Jur., $s 831, 833; Ship v. Harwood, Moore, 24 id. 214; Rochester v. Whitehouse, 15 N. H. 3 Alk. Kerr. Rec. 168; Wiswall v. Sampson, 14 How. 65; 468. Norton v. Gale. Opinion by Schofield, J. Dickey, Davis v. Gray, 16 Wall. 203, 218; Thompson v. Scott, 4 J., dissented. Dill. 508. Circ., S. D. Ohio, July, 1880. Kennedy v. Indianapolis, Cincinnati & La Fayette Railroad Co., NORTH CAROLINA SUPREME COURT ABIn re Cork. Opinion by Baxter, C. J.





matters not at what time during the progress of an

arbitration the umpire is appointed. It is within the ACKNOWLEDGMENT

discretion of the arbitrators to appoint him before or PEACHMENT OF.— The certificate of acknowledgment after their disagreement. Where a submission to the by an officer authorized to make the same, to a deed award of two persons authorized the appointment of or other instrument affecting or relating to the title to an umpire by them, if they disagree, it was held they land, can only be impeached and shown to have been might choose an umpire before they entered upon the made in fraud, or as a forgery, by clear and entirely inquiry. Bates v. Cooke, 17 E. C. L. 407. The award satisfactory evidence. Mere suspicion, loose and un- is either the award of the umpire or the award of the satisfactory evidence, or inconclusive evidence, will arbitrators. Take it either way, and it is good. If not suffice. But where the clear and decided prepon- the appointment of the umpire by the arbitrators is derance of the evidence shows that a married woman proper at the time he is chosen, then it is his umpirage, refused to execute a note and deed of trust upon her and their joining with him will not vitiate; for a mere land, when urged to do so by her husband, and posi- stranger may join in an award or umpirage without tively refused to acknowledge the deed of trust, and invalidating the proceeding. But if on the other hand the proof showed that the signature was not in her the arbitrators have no right to choose an umpire behandwriting, but that the deed was executed by a fore disagreement, then it would be their award, and mark, when she could write, it was held, that a decree the fact of the umpire's joining in it would not vitiate setting aside the trust deed and enjoining an action of it. In the case of Soulsby v. Hodgson, 3 Burr. 1474, ejectment brought by the purchaser against her was there was a submission to arbitrators with power to proper. Myers v. Parks. Opinion by Walker, C. J. choose an umpire, if they could not agree in a certain CONSTITUTIONAL LAW – TAXATION - EXEMPTION BY

time. They failed to agree within the limited time, CHARTER, BINDING ON STATE. - Where the property but chose an umpire. The umpire accordingly made of a corporation is exempted from taxation by its char- an award and the arbitrators joined in it. The court ter, the exemption amounts to a legislative contract, were clear that this was the umpirage of the umpire which is binding on the State, and such property can- alone, and held he was at liberty to take what advice not afterward be subjected to taxation. Opinion by or opinion or assessors he pleased. And again, in Beck Dickey, J. Walker, C. J., and Scott, J., dissented. v. Sargent, 4 Taunt. 232, which was a case where there

was a submission to arbitrators to make an award, and STATUTE OF FRAUDS ---SALE OF REAL ESTATE – AR- if they could not agree within a limited time, then to BITRATION AS TO PRICE TO BE PAID - NOTICE OF AR- appoint an umpire. They did not agree within the BITRATION, WHEN UNNECESSARY.-(1) The statute of time, but chose an umpire and then joined with him frauds will be satisfied by such a statement in a writ- in his umpirage. Mansfield, C. J., said, what the arbiten contract as ascertains the price to be paid, although trators did in making the award was nothing, and the it mentions no specific sum, as for instance, if to pay award in law is the award of the umpire alone; it was a price to be settled by arbitration, or upon the valua- nothing more than if mere strangers had joined in the tion of appraisers to be selected by the parties. Where award, and could not vitiate. And Heath, J., who sat a lease of lots, executed by both parties, fixed the an- in the same case, said, it has been decided in very old nual rent for the first five years, and then provided cases that the circumstance of another joining with * To appear in 95 Illinois Reports.

* Appearing in 82 North Carolina Reports.




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