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. See the able opinion of Vice Chancellor Sandford in the case of Coates v. Shepherd, reported in this work, v. 3, 404. RESTRAINT OF TRADE. agreement, he demurred, on the ground that the agreement was contrary to public policy, and illegal, in this respect, that it restrained him from supplying bread and flour to particular persons wherever they might reside, without limit in point of 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 2007., 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 2007., 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. Trumau B. Hicks. struction would probably exclude the conveniences. *** 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." INFANT-NECESSARIES. 66 THESE cases give rise to the perpetually recurring question, whether certain articles supplied to infants are necessaries." The defendants were undergraduates at Oxford; and the articles in ques WIGHTMAN, J.-" The articles of which this bill is composed cannot be necessaries, if they cannot be supplied without giving credit." Wharton v. MackenzieCripps v. Hills, 5 Q. B. 606. In Chancery. tion consisted of wild ducks, grouse, fowls, Before the Honorable RUEBEN H. WALWORTH, desserts, &c. The general rule is clear, that infants are liable for necessaries ac Chancellor of the State of New-York. HICKS. cording to their condition in life; but the JEREMIAH GREEN et al v. TRUMAN B. law protects them against improvident contracts. It was laid down by Parke, BEFORE B. in Peters v. Flemming, 6 M. & W. 46, CREDITOR'S BILL-EXAMINATION MASTER OF DEFENDANT-FORM OF ORDER OF REFERENCE TO APPOINT RECEIVER, Under the usual order of reference to appoint a Whether the receiver has the power, under any clause of such an order, to examine the defendant or any other person as a witness to establish the fact of such a fraudulent sale or assigument, quere. Where property is not in the possession or under the control of the defendant, the proper course for the complainant is to make the grantee or assignee a party to his suit. Form of order of reference to appoint a receiver where the defendant appears but does not give the consent under the 191st rule. What questions defendant is bound to answer on his examination before master. THIS was an appeal from an order, the circumstances of which sufficiently appear in the adjudication. In Chancery-Thompson and wife v. Ex'rs of Carmichael. E. F. Bullard, for the appellants. THE CHANCELLOR.-Under the usual order of reference to a master to appoint a receiver in a creditor's suit, the complainant is not authorized to examine the defendant for the mere purpose of ascertaining whether he had not made a fraudulent assignment of his property previous to the commencement of the suit; unless such property is still in the possession or under the control of the defendant. And it seems at least doubtful whether the receiver has the power, under any clause of such an order, to examine the defendant, or any other person, as a witness to establish the fact of such a fraudulent sale or assignment; there being no statutory provision authorizing the receiver to set aside or avoid such a sale, if the defendant himself, at the time he was directed to assign to the receiver, would not have had the right to do so. The statute only makes the fraudulent sale or transfer void as to the creditors who are intended to be defrauded. Where the property is not in the possession or under the control of the defendant, so as to make it his duty to deliver it up to the receiver, leaving the fraudulent assignee or grantee to come in and be heard pro interrero suo, the proper course for the complainant is to make the grantee or assignee a party to his suit, so as to have the receivership extended to him. and to take from such receiver the re- necessary. may per Under the usual order of reference to appoint a receiver, the defendant, on his examination before the master, is not only bound to answer the direct question, what property, &c., he owned or had a beneficial interest in at the time specified in the order, but every other question which may indirectly aid in the ascertainment of that, and whether such property was in his possession or under his control at the time of his examination, so as to be the proper subject of an order or direction of the master, that he should deliver the same to the receiver. It is not sufficient for him to answer, generally, that he has no property other than that specified by him in his answer to the general question. Order appealed from reversed; and the application for a further examination of the defendant granted. Costs to abide the event. Although the rules of the court prescribe the substance of the order or decree in a creditor's suit, where the defendant suffers the bill to be taken as confessed against him for want of appearance, or gives a written consent in the form pre- Before the Honorable LEWIS H. SANDFORD, scribed by the 191st rule, no directions are contained in the rules as to the form of the order of reference to appoint a receiver where the defendant appears, but does not give the consent mentioned in the 191st rule. Assistant Vice Chancellor of the First Circuit. MAJOR THOMPSON AND WIFE v. EXECUTORS, &c., OF CARMICHAEL.-September 12, December 3, 1845. In cases of the latter description, the STATUTORY PROVISION WITH REFERENCE TO order of reference, after authorizing the master to appoint a receiver of all the property, equitable interests, things in action and effects which belonged to, or were held in trust for the defendant, or in which he had any beneficial interest at the time of the commencement of the suit, except such articles as are exempt, BRINGING ADVANCEMENTS INTO HOTCH POT. The provisions in the statute regulating descents, for bringing advancements into hotch-pot in the division of the real estate, does not apply where there is a will disposing of a part of the decedent's property, either real or personal. It relates 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 willis provided that if any child of an intestate which was decreed to be invalid, except as to 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 and distribution of the real and personal estate of the intestate. The same doctrine has always prevailed in England, under the statute 22 and 23 Car. 3, ch. 10, from which ours was taken. The reasonable support of the widow under the will, is not to be determined by the amount necessary for her bare subsistance; but regard must be had also to the extent and income of the estate. It is contended on the one side that these provisions apply when there is an intestacy pro tanto; and on the other side, that they are not applicable at all where there is a will. THE bill was filed for a partition of the that the words used in the Revised StatIn the first place it is to be observed real estate of Daniel Carmichael deceased, utes are the same as those in the parallel against his 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 to take proofs and make the proper inqui-§ 3; 1 Rev. Laws 313, § 16.) ruary, 1787, (1 Greenleaf's Laws, 363, 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 by the act 1 Jac. 2, ch. 17, and its lanpoints upon which the opinion of the court was sought sufficiently appear in the ad-guage on this subject is the same. judication. Charles O'Conor, for the complainants. THE ASSISTANT VICE CHANcellor.The first question arises upon the advancement to the complainants by the testator. And independent of the point whether the bond was intended as a gift or as a portion to Mrs. Thompson; it is claimed that the statute relative to advancement, is not applicable to this case. The result of the former decree is, that Daniel Carmichael died without making any valid disposition of his real estate, or of the mass of his personal property. He left a will, which is valid so far as it bequeaths a small specific legacy to each of his two sons, and gives to his wife similar legacies, together with a sum sufficient for her support charged upon his whole property. The statute law exclusively regulates the subject of advancement. We may therefore look for our guidance to the construction first put upon the act of the 22d and 23d Charles. It appears to have been settled in England, soon after the passage of the law, that the child who had been advanced was not required to bring his advancement into hotch-pot, except in the case of a total intestacy. Vachell v. Jefferys, Prec. in Ch. 169, and Cowper v. Scott, 3 P. Will. 124, appear to be direct authorities on the point; and they are confirmed by Sir William Grant's opinion in Walton v. Walton, 14 Ves. 324. This is also laid down as good law in 3 Bac. Abr., Exec. and Adm. K. And see Hawley v. James, 5 Paige, 450, 451-per Chancellor, and Wheeler v. Sheer, Mosely's R. 301, 304. The same thing was decided under the statute of distributions in South Carolina, in a series of cases extending from 1802 till 1833. Sinkler v. Legatees of Sinkler, 2 De Sauss. Eq. R. 139, which was a case of partial intestacy as to personal estate; Snelgrove v. Snelgrove, 4 ibid. 274, 291, where there was a total intestacy as to the This case does 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-a devisee, but the will was valid as to the tion to the next of kin, because there is real estate which descended to Carmichael's heirs. (2 R. S. 97, 98, § 76 to 78.) In the chapter "Of title to real property I was referred to two decisions in Tendescent," (1 R. S. 754, § 23 to 26,) itnessee as being adverse to these. personally; Newman v. Wilbourne, 1 Hill's Ch. R. 10; and McDougald v. King, 1 Bailey's Eq. R. 154. In one, In Chancery.-Thompson and wife v. Ex'rs of Carmichael. devisees under a will were required to bring their devises into hotch-pot, in order to obtain a provision for a posthumas child, who was otherwise unprovided for. In the other case, on a division of after acquired lands which did not pass by the will, the children of a second marriage, who by the will took all the lands the testator had at its date, were compelled to bring those lands into hotch-pot, in order to share in the former. Under our Statute, I do not think that a provision by will can be deemed an ad vancement. On the statute itself, (1 R. S. 754,) a total intestacy appears to be contemplated. It is true that in some of the previous sections of the same chapter, the word intestate is used as correlative to the words in the first section, person who shall die without devising real estate. But this is evidently to be restricted to its connection with the subject matter, that is, to lands undevised. A person who had made a will and disposed of all his personal property would nevertheless be an intestate under those previous sections, as to the portion of his lands undevised, however insignificant. er case might utterly frustrate the intention of the testator. Where one has advanced a part of his children, and then by will devises property to the residue, leaving other property undisposed of, it is a legal and reasonable presumption, that he intended the latter to go to both classes of his children equally, if any of it remained at his death. As to one class he has been his own executor. As to the other he has by his will placed them upon an equal footing with the first class. Now if the defendants' construction of the statute is to prevail, the clear intent in the case put will be utterly destroyed. The second class of children cannot be required to bring their legacies and devised estates into hotch-pot, for those are in no sense an advancement. And they can compel the first class to bring in and divide all the property they received from their father in his life-time, or else exclude them from the whole estate which was nót disposed of by the will. The same consequence will ensue as to after acquired lands, where the will does not dispose of them, and this is a case of 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 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 motle 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 is not an intestate. 66 an This case must be decided upon general principles and not upon its peculiar features. It may be very plain to me that this testator, if he were now to make his will anew, would compel his eldest daughter to account for the bond of $1000 towards her distributive share, or exclude her entirely. But the same construction, which in this case would probably approximate towards his intention, in anoth The safer course, it appears to me, is to follow the plain terms of the statute, and the English decisions, making no constructive intestacies, but leaving it to the legislature by more full enactments, to remedy the injustice, if any is found to exist. In regard to the annual allowance made to the widow for her reasonable support, I am satisfied with the decision of the Master. What is reasonable for her, is not to be determined by the amount ne |