The Sun.
London, England, 1841-01-19 00:00:00

WILLIAMS V. THE EARL OF JERSEY.-JUDGMENT.

HIS LORDSHIP also gave judgment in.this case, which
was argued before the Court upon appeal from the decision
of the Vice Chancellor, overruling a demurrer. The
noble defendant brought an action against the plaintiff,
who carries on copper works in Wales, for a nuisance,
upon which he filed his bill, and obtained an injunction re-
straining proceedings in that action. To that bill the de-
fendant demurred, on the ground of want of equity, and
upon that demurrer coming on for argument, the Vice-
Chancellor ordered it to be overruled, and from that de-
cision the parties appealed. His Lordship was clearly of
opinion the judgment of the Court Mom was correct, and
ordered it to be affirmed, with costs.

ROWLEY V. AVA NIS.

The further arguments in this part-heard appeal occu
pied the Court the remainder of the morning.

ROLLS' COURT, JAN. 18.
WHITAKER V. HOWE.
This case was argued last. Wednesday,tere then stated
that we should abstain from publishing circumstances
of the case until after his Lordship should have given his
opinion. The case was mentioned this morning with re-
gard to certain papers which the plaintiff contended the
defendant had no right to the possession of, and the Mas-
ter of the Rolls, after stating that to make an order appli-
cable to that part of the case it would be necessary for him
to examine minutely the affidavit which had beets filed,
proceeded to state his opinion upon the main question be-
tween the parties. The motion, his Lordship observed,
was for an injunction to restrain the defendant, Mr. Howe,
from retaining and keeping possession of, or destroying,
certain documents, and also to restrain him from practising
or carrying on business as an attorney or solicitor. In the year
1831 the plaintiff, Mr. Whitaker, intending to procure ad-
mission as an attorney and solicitor, and to form a partner-
ship with the other plaintiff, Mr. Tatham, desired to pur-
chase the business which was then carried on by the de-
fendant, Mr. Howe, who was then in partnership with Mr.
Heptenstall ; and for this purpose an agreement, dated the
4th August, 1831, was made between the parties, by
which it was agreed that Whitaker should become a part-
ner with Howe and Heptenstall for the term of two
years, and should pay five thousand pounds for the
partnership, as a consideration for the absolute pur-
chase of all the interest of Howe and Heptenstall in
the business, during and after the expiration of the term of
two years. Howe and Heptenstall agreed to put Whita-
ker into possession of all the profits of the business from
the time that the 5,000/, should be secured, but they were,
nevertheless, to continue in the business as copartners of
Whitaker for two .years, during which period they were
to attend at the chambers where the business was
carried on, and were in all things to aid and assist
in carrying on aka business as they had been accustomed
to do, Whitaker, or Whitaker & Tatham, finding the capi-
tal. Howe and Heptenstall further agreed to use respec-
tively their utmost endeavours to retain the clients, and
secure the possession of the business to Whitaker during
the term of two years, and after the expiration thereof, and
that neither Howe nor Heptenstall should afterwards prac-
tice as solicitors or attorneys in any part of Great Britain
for twenty years without the consent of Whitaker. Mr.
Whitaker secured the payment of the 5,0004 as required,
on the 7th November 1831, became admitted as an atter_
ney and solicitor; the agreement was acted upon, and the
business carried on under the firm of " Howe, Heptenstall,
and Whitaker." In June 1832 the money was actually
paid, and Mr. Howe received 3,0001. as his share of it.
During the progress of the two years, at the end of which
Howe and Heptenstall were to retire, Mr. Whitaker
began to apprehend that even after the expiration of the
two years it would be important to him to secure
the assistance and established character of Mr. Howe,
and in May, 1833, he wrote a lever to Mr.
Howe, earnestly requesting him to continue his assistance
in the business at the end of the two years. After sonic
treaty, Mr. Howe agreed to do so, in consideration of his
receiving 500/. a-year as a remuneration, which was after-
wards increased to 700/. a-year. Mr. Heptenstall retired
from, the business altoge:her at the end of the two years, or
soon afterwards, but Mr. Howe continued under the new
arrangement; and a question arose, whether, under that
arrangement, he was a partner with Whitaker and Tatham
or not. Ia August, 1840, Mr. Howe insisted upon its
being dissolved, Mr. Whitaker thought there was no part-
nership to dissolve, butat length they agreed to sign, and did
sign, a notice of dissolution of the partnership, Mr. Howe
signing an acknowledgment that Mr. Whitaker's signature
to the notice of dissolution should not prejudice any question
between them as to a partnership having previously existed.
About the same time, the same of the firm, painted
on the door, was altered, and the name of Mr.
Howe" painted separately from that of " Whitaker
and Tatham." In the conduct of Mr. Howe in all the
proceedings up to that time his Lordship saw nothing of
which the plaintiff had a right to complain. He might
put an end to the agreement when he pleased, for it was
optional with him whether he would permit his name to
continue in the firm, ur afford his personal assistance in
carrying on the business. On a careful perusal of the
affidavits, his Lordship saw nothing from which he could
safely conclude that Mr. Whittaker had in any way re-
leased Mr. Howe from the obligation into which he entered
on the 4th August, 1831. For additional consideration
Mr. Howe was to render additional aid in carrying on the
business, but the duty for which the former consideration
was actually paid did not appear to have been altered.
Even if Mr. Howe thought he was at liberty to practice
for himself he had not given sufficient grounds for his
opinion, and whatever his own view might have been
it was not warranted by the facts stated. Neither did it
appear by the evidence that after the month of August,
IMO, he had acted for himself as a solicitor to, or acquired
a right to do so by the acquiescence or consent of, NVllit-
akar. Nevertheless, on Christmas day, in the absence
and without the knowledge of Whitaker and Tatham, he
removed a great many documents from the chambers where
the partnership business was carried on, to chambers where
he now insisted he had a right to carry on business as a
solicitor and attorney for himself. The defence set up was
that the agreement entered into was void, or, if not
void, that it was such an agreement as the Court
could not order the specific performance of', and therefore
it had been alleged, on behalf of the defendant, that he,
with the consideration money which he had received for
the agreement in his pocket, had a right to act in direct
violation of the contract for which that consideration had
been given. With respect to the validity of the agree-
ment, it bad not been made a question, on the present oc-
casion, whether attorneys or solicitors could lawfully agree
to secure their clients to the attorneys and solicitors who
succeed them in business. In Candler v. Candler, Lord
Eldon, observing on the case of ---. v. Guy, said—
" I had doubted whether professional men could
be recommended, not for skill and knowledge in
the profession, but for a sum of money paid and advanced.
I know that this would rip up many transactions, and I
was happy that the Court of Queen's Bench was of a dif_
ferent opinion, though I never could entirely reconcile
myself to their doctrine." In this case it had been alleged
on behalf of the defendant that the agreement was void, as
being a restraint on the exercise of a trade or profession,
Ia the cases which had occurred on this subject no dis-
tinction that his Lordship could observe had been taken
between trades and professions, but the distinction between
and
consideration
having material.
been In
gd'fferent sorts of trades and professions bad been taken,
the present i
v
e
n
,
the real questionresent case, a valu-
able
was whether the restraint intended to be imposed on Mr.
Howe was reasonable ? The words of Chief JustiecTindal in
Harmer v. Gray might be safely adopted ; they were these:
" We do not see how a better test can be applied to the
question whether an agreement of this sort can stand,
than by considering whether the restraint is merely sufficient
to afford a fair protection to the party in whose favour it is
given, and Hot so large as to interfere with the convenience
of the public. Whatever restraint is larger than the pro-
tection of the party requires can be no benefit to either—
whatever is injuriotes to the public is void on grounds ofpublic
policy." He (the Is Taster of the Rolls) could not say that in
his opinion the public interest would be in any way interfered
with or affected by 11Ix'. Howe not being allowed to prac.
tise as an attorney or solicitor in Great Britain for 20
years without the conse.nt of Mr. Whitaker. The ques-
tion was, whether the reetraint ought to be considered as
reasonable? The bueiness of an attorney and solicitor
might be, and was, to a large extent, carried on by means
of correspondents and agen.. a 4_s and, as to which, it had al-
ready been decided that a mere int of practice, within a
distance of 150 miles, was not an
t unreasonable restraint.
In the case of a surgeoulentistthe operation of drawing
teeth, requiring the personal attendant. eof the practitioner,
and the re tent at the. same lace, the s estraint to practise
within 100 miles of York
-P held to tat an unreasonable
thea Court of
restraint, agreeing with v'sinimon Pleas, in
the case of H 'seise boundary
Horner v. Gray, that ne pr, conld be Mid down within v •
nt would be
t " the re' slat

reasonable, and beyond which it would be excessive. Having
regard to the nature of the profession, to the limitation of
time, and to their decision, that a distance of 150 miles
was not an unreasonable boundary, his Lordship would
say, as Lord Kenyon said in Davis v. Mason, that he did
not see how the limits in this case could be considered as
necessarily unreasonable, nor did he know how to draw the
line. At present therefore, he could not come to the
conclusion that the agreement was void, and he was not of
opinion that the Court could not grant an injunction
to restrain the violation of a contract or covenant
because there might be sonic part of the agreement which
the Court could not compel the defendant specifically to
perform. No doubt every body recollected the case of
a dramatic writer who thought fit to contract that he
would write for one theatre, aad would not write for
another. Lord Eldon could not carry into effect that
part of the agreement by which the party contracted to
write for one theatre, but to accomplish the same end,
he did grant an injunction to restrain him from writing
for any other. In the progress of this cause, it might
become necessary to consider further the points
that had been raised, but at present his Lord-
ship was of opinion that the right claimed by Mr.
Howe to net in direct violation of the contract for which
he had received the consideration, was, to say the least,
so far doubtful, that he ought not to be permitted to take
the law into his own hands, and carry on business at his
own pleasure, without regard to the severe injury he might
do the plaintiffs. An injunction must therefore be granted
to restrain him from practising as an attorney or solicitor
in any part of Great Britain for twenty years, without the
consent of Whitaker, either in his own name, or the name
of any other person, and to prevent him inducing any per-
s:at who was the client of Howe and Ileppenstall, and of
Howe, Whitaker, and Tatham, to cease to employ the
plaintiffs. With regard to the papers, his Lordship
would look at the affidavits.

VICE CHANCELLOR'S COURT, JAN. 18.
BANNATYNE V. LEADER.
The arguments in this case, the particulars of which we
refrain from entering into at present, occupied his Honour
the Vice-Chancellor the whole day.

COURT OF QUEEN'S BENCH, .74. v. 18.
(Sittings in Banco.)
LYNCH V. NURDF.N.

Lord DENMAN gave judgment in this case, which bad
been tried before Mr. Justice Williams, and in: which
a verdict was had for the plaintiff. It was an action of tort
for n,,gligence committed by the defendant's servant in
leaving his cart and horse in the street for half an hour,
while he remained in the house. It appeared that while
the servant was absent, the plaintiff, a child of six or seven
years old, was playing with several others by climbing in
and out of the cart. One of the children struck the horse
which moved on, and the plaintiff fell under the wheel, and
his thigh was fractured. For the defendant, it was con-
tended that the plaintiff must be nonsuited, inasmuch as
the injury was not occasioned solely by the defen-
dant's negligence, but that another party was the
moving cause, and that the plaintiffhimself was at the time
committing a trespass which disenti►led him to recover.
The Learned Judge, however, thought the ease!ought to go
tolthe .lury, who found for the plaintiff:and a rule was then
moved fur a new trial. The Court, however, was of
opinion that the case had been properly left to the Jury.
If a man was guilty of negligence in leaving anything
ddngereus in a place where he knew that some other per-
son might unjustifiably set it in motion to the injury of an-
other, that party would have a right of redress against both
or either, but at all events against the first person. It' a
gamekeeper left a loaded gun in a play ground where boys
were amusing themselves, and that one of them taking it
up maimed another by the discharge, damages could be
recovered against the gamekeeper. It had certainly been
held that a trespasser in a wood, where it was well-known
that spring.guns were placed, could not sue for injury
occasioned by their explosion, but that was founded
on the plaintiff's previous knowledge of the dan-
ger. Oa these grounds it appeared to the Court
that the plaintiff was entitled to recover, and that the rule
for a new trial must be discharged.
WATERS V. THE EARL OF TIIANET.
In this case, which had been argued a few days since,
the Court granted a rule for a new trial.
THE QUEEN V. THE PROPRIETOR OF TILE " UNITED
SERVICE GAZETTE."

In this case a rule to show cause why a criminal infor-
mation should not be filed against the defendant, Alaric
A. Watts had been obtained in the course of last term for
a libel on Lieutenant Hart, of the 49th Foot.
Sir FREDERICK Pou.ocx (with whom was Mr. James)
now appeared to show cause against the rule, and he
trusted that when the Court learned upon what grounds
the rule had been obtained, and the answer he was about
to put in on behalf of the defendant, they would discharge
the rule and with costs. If the whole of the facts had
been disclosed to the Court he was satisfied they never
would have granted the application. There were in the affi-
davit of*Mr. Hart certain denials which were essential to the
obtaining of the rale, but which denials, it would appear,
were entirely untrue. It appeared that on the 6th June
there was a meeting of persons interested in the formation
of a United Service Benevolent Institution. The meet-
ing was adjourned till the 221, and the publication com-
plained of appeared in the United Service Gazette of the
27th June. The libel referred to what had occurred "at
a late meeting" of that body, and the natural inference
their Lordships and every other person would draw was,
that it referred to the meeting of the 22d, which was the
latest in point of date. Now Mr. Hart had chcsen to
point affidavit to what had taken place at the meeting
of the tith, and entirely suppressed all that occurred on the
22 1. The affidavit of Mr. Hart set out that he had been

an otliccr of the British army since the Ist April, 1829,
when he joined the 49th Foot in India; that he was the
editor and proprietor of a new Army List, which bad very
considerable circulation in military circles; that he had at.
tended the meetings of the United Service Benevolent Insti-
tution, which he was a strenuous supporter of, and attended
that of the 6th of June. That, on the 27th of June, the de-
fendant had published certain libellous statements of his

conduct at said meeting, which statements were not true.
Now, Mr. Hart had suppressed from', the knowledge of the
Court that the meeting was adjourned to the 22d June,
and he must have been swam e that the defendant's remarks

applied to the latter meeting. The alleged libel charged
Mr. Hart with, " at a late meeting," renewing his at-
tempts to disturb the harmony of the meetings, and in-
dulging in low abuse id the supporters of the institution,
more especially defendant's paper, but that he was obliged
to repress his venom. That at a former meeting he had
acted in a cowardly and despicable manner in referring to
an absent individual (the defendant), without having given
him notice of his intention to do so. The article then
charged him with falsehood, and with cowardly and ran-
corous malignity towards defendant. That he had ob.
tamed an extemion of his leave of absence on frivolous
pretexts, and in utter defiance of the rules of the
service, and had been placed upon the recruiting
staff, leaving his hard-working and more honour-
ably disposed brother officers to do his duty under
the burning sun of a tropical climate. Now, Mr. Hart, in
taking the usual course of exculpating himself, denied the
truth of the allegations, omitted all mention of what had
occur'ed at the meeting of the 22d, but he had the-affida-
vits of several persons who were present, who would prove
that on that occasion the offensive language which formed
the ground of Mr. Watt's observations, had been used.
Lord DENMAN said that looked as if the affidavits bad
taken a false point fur the purpose of misleading the
Court.

Sir F. POLLOCK said he would convict Mr. Hart of

falsehood before ho had done. The articles of war ex-
pressly laid down that any officer convicted of behaving in
a sc.•,ndalous and infamous manner, should be cashiered,
and Mr. Hart came to purge himself of these charges,
having the fear of a court-martial before his eyes, but he
feared 'ne would take little by his motion. From that day
forth, Mr. Hart's name must go before the world
coupled with that species of infamy which be-
longed to swearing an affidavit which, if it had
been sworn by any attorney of that Court, would cause him
to be struck from the rolls, He (Sir F. Pollock) would
undertake to say that no person connected with the ad-
ministration of justice would so far disgrace himself as to
put his name to such an affidavit. He would now read a
few passages fr •m the affidavits, the first of which was
from Ed. Nichols, of Shooter's. hill, in the county of Kent,
Colonel of the Royal Marines; and he would remind the
Court that he could have produced several others, but
from the well known difficulty of procuring parties hold-
ing military or naval appointments to come forward in
such cases. The affidavit of Colonel Nichols set forth

that he had been 47 years in active service; he then re-
ferred to the formation of the Institution, the meetings of
which he had attended, and deposed, that judging from
the conduct of Lieut. Hart, and his repeated attempts to
interrupt the proceedings and move the dissolution of the
Society, he believed him to be animated with the most de-
termined hostility to it. He then referred to the meetings
of the 6th and 22d June, when Lieut. Hart adopted the
Fame line of conduct, and referred to a letter he had re-
ceived from his brother, Lieutenant-Colonel Nichols, who
stated that after deponent left on the 22d, Lieut. Hart
had used very abusive language towards defendant.
The Learned Counsel then read the affidavit of John Jos.

Dempsey who attended the meetings of the Institution for
the purpose of reporting the proceedings, and who depsed
that Mr. Hart had repeatedly attempted to disturb the
harmony and interrupt the proceedings of the meetings,—
that he was present at the meeting of the 6th of June,
whet, the Secretary was directed to write to the defendant
Nlr. Watts, to thank him for his advocacy of the ;interests
of the Institution. Mr. Hart then again attempted to move
the dissolutiok of the Institution. At the adjourned
meeting on the 22d June, Mr. Hart again attempted to
interrupt the proceedings ; but having bean disappointed,
Mr. Hart, who was sitting near deponent, began in a loud
tone of voice a tissue of the most seurri!ous abuse of Mr.

_. .„.......
Watts, calling him the d-dst blackguard and scoun-
drel in existence. That at the termination of the meeting

he (Hart) repeated the sanaa:expressions, adding that
he (defendant) was a characterless vagabond without
the pale of society, whom no gentleman would meet,
and that if he knew where to meet him he would

break every bone in his skin.—( Laughter.) He
would now read the affidavit of Henry Carr, formerly of
the East 'Ala Company's service, and Honorary &ere.
tary of the Institution, denying several of the allegations
of Mr. Hart, and in reference to the meetings of the 6th

and 221 of June deposing that he attempted in move the
dissolution of the Institution. That at the meeting of the

22d of June he used the abusive and insulting epithets to-
wards Mr. Watts as set forth in the preceding affidavit.
Lord DENMAN—Does not this discharge the rule?
Sir F. POLLOCK had also affidavits with respect to the
discipline of the army, which showed that Lieut. Hart
had been peculiarly favoured. One was from Captain
Hawkins, late of the 49th Foot.
Lord DENMAN-That is not the question. You must
show his absence was procured by frivolous pretexts.
Sir F. POLLOCK—There would be this inference, that
while Mr. Hart was conducting a publication requiring great
mental and bodily labour and exertion, he could only have
obtained an extension of his leave of absence on the plea
of continued illness.

Lord DENMAN—Your short ground is that the rule
would not have been granted if these facts were disclosed.
The ATTORNEY.GENERAL was sure that any impression

which had been made by his Learned Friend would be
removed if it ought so to be. The Court would in the
first place bear in mind who the parties were. Lieutenant
Hart was a gentleman bearing her Majesty's Commission,
and maintaining the unsullied honour of a gentleman. Mr.
Watts was the proprietor of the United Service Gazette,
which had a very extensive circulation in the army, and he
complained that Mr. Watts had made use of his paper fur
private and personal purposes; for although Mr. Hart
was the proprietor of a new Army List, the contest
could not be said to be one between two journalists. Mr.
Hart had never written a word in any paper against the
defendant, who had endeavoured to inflict a mortal stab on
the reputation of Lieutenant Hart. The defendant did
not confine himself to the personal quarrel between the
parties,
but he attempted to charge Mr. Hart with skulk-
ing from his duty, and acting in the most dishonourable
manner, namely, having used unqualified falsehood as
regarded the United Service Institution, and with cowardly
and rancorous malignity towards the defendant. It
was not alleged in the libel that Mr. Hart had
said anything disrespectrul of Mr. Watts at the
meeting of the 22d ; and the reference merely being " at
a late meeting," Mr. Hart was, in his opinion, fully justi-
fied in supposing it to refer to the meeting of the 6th of
June. The Learned Counsel then referred to a passsge
in the libel reflecting upon the conduct of Lieutenant Hart
at the meeting of the 13th of May, and which, it appeared,
was altogether unfounded, although his Learned Friend
had prudently passed it over as being wholly immaterial.
It appeared that Lieutenant Hart had been sent home from
India in consequence of ill health, and had been for two
years actively employed in England in the recruiting ser-
vice. The question was, whether any answer had been
given to the libellous matter as regarded Lieutenant Hart's
conduct on the lath of May, or whether there was any
justification of the introduction of totally irrelevant and
grossly libellous matter, having no reference whatever to
the personal controversy between the parties. After going
through the various charges in the publication, and com-
menting upon them at some length, the Learned Counsel
concluded by submitting that the rule ought to be made
absolute.
Lord DENM%N said that the Court would be sorry to
give the least approbation to the tone and manner of a
publication such as that complained of, and ho regretted
that a paper connected with an honourable profession
should have so expressed itself, no matter what the provo-
cation was, But the question was, whether they ought to
make the rule absolute, and his reason for thinking they
ought not was, that he was very confidant if the facts
which must have been known to the prosecutor as the mo-
tives influencing Mr. Wetts in that publication had been
disclosed, the Court would never have granted the rule.
It appeared that Mr. Hart was about to make some re-
marks on the defendant's conduct, which was not
permitted, and then it appeared that he addressed
several officers, using the grossest and most in-
sulting language towards Mr. Watts as an individual.
The prosecutor should have clearly made it appear what
his own conduct had been, and it seemed to him that the
Court ought to show that they would not submit to have
such applications made, or any garbled and suppressed
statements, and if it was done it must be at the hazard of
the party making the application. When a motion was
made for a criminal information, the Court expected that
all the facts which had come to the prosecutor's knowledge
as to the probable motives of the defendant should appear.
On these grounds the rule must be discharged with costs.
Mr. Justice Parreitoe expressed himself of the same
opinion, adding that if the facts had been properly stated
he never would have granted the rule.

BAIL COURT, JAN. 18.
THE QUEEN, v. P. N. S. WALLACE, AND N. S. S. WALLACE.
The arguments in this case were heard on Saturday, and
on that occasion Mr. Justice Williams deferred giving
judgment, and said he should in all probability have made up
his mind on the subject by this morning. On coming into
Court his Lordship suggested that the parties should
come to some arrangement, and it was ultimately agreed
that the prisoners should be remanded on the understand-
that within four days they should be taken before a
Magistrate, who should take down the depositions, and
either commit them for trial immediately, or admit them
to bail, as he might think fit.

IN liE THE BIRMINGHAM AND LONDON RAILROAD COM-
PANY. APPLICATION TO REMOVE TILE PROCEEDINGS
BEFORE THE CORONER'S INQUEST, INTO THIS COURT, BY