The Sun.
London, England, 1841-01-18 00:00:00

JIMGNIENI'.

• LOUD r.MANCELI.OI., •
..oe, ist,ich come Moro the Coist ~von appeal from tLie
eision of his Honour the Vice Chancellor, dismissing
two petitions with costs. The petitions were presented
by the froffees of the Free Grammar School of Liverpool,
for the purpose of having the declaration of the Court as
to the principle upon which the school should be carried
on in future (there having been objections made with re-
fzrence to the masters having. boarders, and the admission
of scholars, &c.), and also for a reference to the
.Master to approve of a scheme for 1112 future ma-
meg-ernent of the charity. Upon the case coming
on be ore the Vice Chancellor it was urged that the Court
had no authority to give the relief prayed upon petition
under the Act of the 13th of George 111., but that an in-
formation ought to 'nave been filed and the Attorney Gene-
ral made a party. The Vice Chancellor agreeing with
the proposition, in February last made an order dismissing
both petitions, and ordering the petitioners to pay the costs,
ar.d from that older the present appeal was brought. His
Lordship, after going at some length into the facts of the
case, stated his cleat- opinion to be that the Court could
not grant the relief asked upon petition, and so far he
agreed with the opinion of the Vice Chancellor; but be
thought under the circumstances the costs ought to have
been reserved. An information had now been filed, and
such being the case, the opinion of his Lordship was, that
all proceedings before the Master should be stayed; that
the order of the 14th February, pronounced by the Vice
Chancellor, so fee as it directed the petitioners to pay the
cost., should b: discharged; and that the question ofcosts
should be resorted until the fate of the information should
be known. His Lordship, however, wished the parties,
before they proceeded further, to consider whether the
o:-ject both had in urew—the due administration of the
.:;rarity— might not be effected without further litigation.

GWYNN V. PHILPOTT.-JUDGMENT.

The LORD CHANCELLOR also gave judgment in this case,
which e3me before the Court upon motion for a new trial,
upon the ground that an interested witness had been exa-
mined. His Lordship, after looking carefully into the case,
was ele,Ay of opinion that the party applying had shown no
merits, far the evidence of the other witnesses so foll in
with the statements given by the witness objected to, as to
render that testimony unnecessary. His Lordship did
not feel himself justified in disturbing the verdict, and the
motion therefore for the new trial must be refused with
costs.

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 decisicn
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 hill, 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 partie,!. appealed. His Lordship was clearly of
opinion the judgment of the Court below was correct, and
ordered it to be affirmed, with costs.

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

ROLLS' COURT.--(THIS DAY.)

WHITTAKER V. HOWE.

This case was argued last Wednesday, but we then stated
that we should abstain front publishing the 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
defencetrit 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 aim
to examine minutely the affidavit which had been 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. lei the year
1831 the plaintiff, Mr. Whitaker, intending to procure ad-
mission as en 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-
fendent, 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 Hoptcnstall 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 5,0001, should be secured, but they were,
nevertheless, to continue in the business as coparteers 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 the business as they had been accustomed
to do, Whitaker, or Whitaker Sr 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 5,000/, as required,
on the 7th November 1831, became admitted as an actor.
'ley 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,
arid in May, 1833, he wrote a letter to Mr.
Howe, earnestly requesting him to continue his assistance
in the business at the end of the two years. After some
treaty, Mt. Howe agreed to do so, in consideration of his
receiving 5001. a-year as a remuneration, which was after-
wards increased to 7001. a-year. Mr. Heptenstall retired
iron. the business altogether 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. In August, 1840, Mr. Howe insisted upon its
being dissolved, Mr. Whitaker thought there was no part-
nership to dissolve, but at length they agreed to sign, elid 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
teetweeu them as to a partnership having previously existed.
About the same- time, the name 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
Foccedirq.•,s up to that time his Lordship saw nothing of
whici: the plaintiff had a right to complain. He might
pot an end to the pgreement when he pleased, for it was
with him whether he would permit his name to
continuo in the firm, or afford his personal assistance in
earl ying on the business. On a careful perusal of the
ailidavits. his Lordship saw nothing from which he could
safely conclude that Mr. Whittaker bad in any way re.
teased Mr. Howe from the obligation into which he entered
on the 4th August, 1831. For 'additional consideration
Mr. Howe was to render additional aid iu carrying on the
business, but the duty for which the former consideration
was actually paid did not appear to have been altered.
Even it Mr. Howe thought be was at liberty to practice
for himself he had not given sufficient grounds for hi,
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.
1840, be had acted for himself as a solicitor to, or acquired
a right to do so by the acquiescence or consent of, Whit-
aker. Nevertheless, on Christmas day, in the absence
and without the knowledge of Whitaker and Tatham, ha
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, it 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.
merit, it had 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 thcin in business. In Candler v. Candler, Lord
Eldon, e,bserving on the case of v. Guy, said__
I had doubted whether professional men could
be recommended, not for skill and knowledge in
the profeesion, but for a sum of money paid and advanced.
I know that this would rip up many transactions, and I
wee happy that the Court of Queen's Bench was of a dif.
fercnt opinion, though I never could entirely reconcile
myself to their doctrine." Li this case it had been alleged
on behalf of the defendant that the agreement was void, as
seine a restraint on the exercise of a trade or profession.
La the cases which had occurred on this subject no dis-
tinction that his Lordship could observe had been taken
betwesn trades and professions, but the distinction between
d,fferent sorts of trades and professions had been taken,
and appeared to be material. In the present case, a valu-
able consideration having been given, the real question
whether the restraint intended to be imposed on Mr.
II awe was reasonable ? The words of Chief Justice Tindal 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,
tnan by considering whether the restraint is Terely-sutlieient
to affird a fair protection to tile party in whose favour it is
given, and not so large as to interfere with the convenience
of the public. Whatever restraint is larger than the pro-
tectum of the party requires can be no benefit to either—.
hatever is injurious to the public is void on grounds ofpublic
Poiicy." lie (the Master of the Rolls) could not say that in
his opinion the public interest would be in any way interfered
with or aff.eted by Mr. Howe slot being allowed to prac-
tise as an attorney or solicitor in Great Britain for 20
years without the consent of Mr. Whitaker. The ques-
tion was, wnethzr ;.hp rev.raint ought to he considered as
reasonable? The business of an attorney and solicitor
might be, and was, to a large extent, carried on by means
of correspondents and agents, and, as to which, it had al-
ready been decided that a restraint of practice, within a
distance of 150 miles, was not an unreasonable restraint.
Ict the ease Af a sprgeon,dentist, the operation of drawing
teeth, requiring the Persenal attendance of the praetitiOnef,
and the patient at the same placer the restraint to practise
within 100 miles of York was held to
_be an unreriaonable

""iat, agreeing with the Cowl of 09111a190 Neu, in
the ease of Horner v. Way, that no proOW `noundary

conld be laid down within which the restraint woChl be
reasonable, and beyond which it would be excessive. having
rerzttrtl to the nature of the prof scion, to the limitation of
tinlo., and to their ,jcei,il:l, 151

•,;), Alen ~t Tti Li..v v Mi,on, that no did
not see how the limits in this c4se could be considered
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 some part of the agreement a Lich
the. Court could not compel the defendant specifically to
perf.irm. No doubt every body recollected the case of
a (7rarnat:c writer who thought fit to contract that lie
would write for one theatre, sad 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 act 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 busiuess at his
own pleasure, without regard to the severe injury he might
do the plaintiffs. Au injunction must therefore be granted
to restrain hint front 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-
teat who was the client of Howe and Heppenstall, and of
Howe, Whitaker, and Tatham, to cease to employ the
plaintiffs. With regard to the papers, his Lordship
would look at the affidavits.