, 1864-01-23
LAW INTELLIGENCE.
Decision Of Judge Wilson in the
North Clark Street Con
cert Hall Case,
CAN An EMPLOYER RH7RA1y An EN-,
hoYE fE0M QFITIIyG HIS SER
VICE 81 INJUNCTION
Record Of Gases In ali the Caprts,

|
The attention Of the bar has already been calle
to the case Of Bel1er OF the North Clark sire,
Concert Hall II. the Misses hitting. In that q,
the Writings agreed to pc1torn for Belcr for th.s
months, and, also, during that time not TO pe.fos,
i elsewhere. They broke their engagement m
went to the Varieties, md Be1ler applied by bill
Chance1y for an Injunction to reatrain them fro,
! performing at the latter place. The prelimins1
injunction was granted and the question Of juri
dict1on was c1aborately argued BY Messrs. Peabod
! and Ashton, on motion to dissolve. The cue,
tdon is comparatively new md an exceedinel
intcfeat1ng one, and a very able and tho.oae
/ opinion IN the msttcr Was given By Judge Wilson
| Of the Superior Court, Thursday the substance +
which follows:
The question upon the motion Ia OF e;ngc]a
character, and one concerning which there is ce,
tatnly gTe4t conflict among the N,sliah arthortiee
a. eSaaSs M 1ne eonc, b foun
Morris -. colman 1854 Tesey, 81, and lie dttier
4 eae1 Of The Get
Ihts difference evidently grows out OF the fac
mat Lord Eldon was very unfortunate In bis re
eSe, Teposs S. sses es 5a55sz = may e.
deeis,on OF the Chancellor, without being submit
teM ~ OF Ics1seo oy h1m 90 not know how gooi
ports rhat he cou1d not have been Z very technics
lawyer By The language be uses, which In this a
md ehgF sisss T.
dec1sion Is represented speaking ~ follows :ssWhy
should they not thus engage for the talents OF each
ing could be made Of the theater Without exhfbi.
ting the talents Of such man and In this instance
that 20 could get mora to himself and tho other
af obs3 fhis than he could by hard
nas possible that the reporter may attach some
1n.egihis 1874 to this language bat it Is certain
MoIT!s vs. Coleman is whether that decIsion did
Or did not contemplate case Of partnership. with
sSsd% Il abd 1s e 1 eanss shs ves
eisioas former in lie cases Of Ktmba r.. kean An
slmone. and the latter Il The case Of Lnlaley vt.
opposite VIEWS. Yiso ohsn:c1ler shadae THEY IL ~
gliding the eaee Of kimhau rs. Kean, observes that
10 s5d clss 0n Of nstt %os be " anas5soea Gs i
have spoken according to the subject matter be-
ing himselfto case in which colman aud GalTick
Theatre; vice Chanccllo. St. Leonards, on tie
other hand in the case Of Lnr,1ey "a. Wagner,
ssys: 1T The words ot Lord Eldon are perfectly
speak for themselves. He was allndiog to case
IN which Garrick, as performer, would hare hid
noa1uk 10 70 Wild tne theatre beJonu the Implied
engagement That he would not perform any where
else; and have come to very clear conclusion
that Lord Eldon wonld hare granted the iuiunc-
tion n that case even had there been no partner
In interpreting the case OF Morris ys, Golusn
theos 1t becomes IN important question whether
the # morG weight Is to be attached to the opinion
st. LeonaIds upon this point. And think that
taktng tnto consideration the fact that Shadwell
mas solicitor in.that very eouEt at the time The
the ease ard aIgped the motion and hesrd the
opinion ne It fell from the lips Of the ChaoceIjor.
aud was too solicitor Of so much distinction that
cellor himself; and that disrine his Vice chsneai-
loFe1ap he made decisions in which he referred 10
1on s E e. Go@sn apd to his personal Feeoec
NO nE1eM Was one Of fpartnership-that he Is bet
1es % %aa,hos1ty On that poiat than Vice Chancellor
MoninIqs Maia q E6G IN being = the time The Of
: a that time lawyer, aud appears to have formed
hie opinion almost exclusively upon the language
Of The oaee as reported In Vcsey Jf
And this view of the matter is, as It secu,s tn
me-, clearly supported by the reported lanEusse Of
Lord Edon in the case referred to-. He e4ys
ssapesk'ng sp q ne eontEact under consideration,
afordinE the most eligible, II not Tic oolv means
Of making the theatre profitable to them as proori-
icy ire O. to osf As9 sh
Eet st. more 10 ht1s4r aad ne oeter p,op,7etorv 5y
the idea that Ibis was any Other than pssneSship
conf55adY cont What other rational Interpretation
son!d be put 11pon It! The annotator, too, esi.
Immediately below, referring 70 the case lust de-
e1oed, be says, though the regulation or theates
L. L. not @ very manageable jurisdiction yet couft
b precedent net to Eesse il md vii deai e. ad Wtd
sqga - eaass -eIasny "a they were cases Of ordina-
Moreover. Il seems to me that exccpt an tba the-
4y 3iy o. pastne3Bh1p, the decision Of Morris ve.
foreman, wop1d have been M absurdltr For
there M 7 no oorenAnt alluded to By which coicmss
fre, but only by which he had bound hfmse,f not
70 write Tor any other Now II they were pAltners
coem!!a me Rsd ef he
promotion Of the interests or the theater Of which
they were Joint nropEdetors. But II they were not
p1nes It wonld have been absurd to enjoin Cole
man from the violation Of negative covenant. IN
order TO compel him to d. what there was 40 AZ
htnatite ~ eoEenanant binding him to do
BIT this disputed point in the Morris and co1e-
Se 81 q of ~ l,1
e. tFtee as reported In The second part Of VII
ssye: TAs case Of Norris 70. Coleman Is essen
ttaHF Different from the present, In that caso.
MOTIFS Go,s%sn T. and othef persons were engaged
Was 1o haEe continuance for rerF long period. a.
long, indeed as the theater shouid e1Isf Coleman
LAC entered INTO an agreement, which was very
The Hsymarket Theater, but that be would not lot
write for any ether thcater.
II appeared to me that the Court could enforce |
sny other theateE. The Court could not cor1pel |
MN 70 write fot Hayma1ket Theater but it did TIC
2niy thlng N its power to induce him indirectly to
DO one thing, b. prohibiting him from doing |
another thing. There was an express covenant o1
his part contained IN the articles Of paltncrshin.
o. sna a. there Nss decree directing the partnersaip
md It wae the 6atHc the Cont to intersere.'s ~
i seems thus to be established almost beyond !
contr2yerfy that the ease Of Morris against COT
1at eaee ta 70 precedent to authorize the granting
3f an injunction In cases like the present. but onl1
Ensh essas s1sts sy be b
pHee decided b Lord Eldon, and already referred d
y pney1dlpg that mi. Friee eompose 1eperts G to
enss1ses 1o 1hat II the contract Is one which the
not indirectly enforce It BY restraining III. PTce
rom doing eome other act. cannot as in the other
,ase 81 that will tndnee him to write for the
,tber pe.eon, ior hat il not The naufe % OF lie he
grsf@nent. me Il there be any remedy In this case, It
t is plain, then. that the case of Clark arainst
rice furnishes no precedent for the authority
7hich the Court is In this case asked to exersiss
NJ M y as admitted that the two next cases, decided
all vE. hean. and Kimberly ys Jennincp, already
cfes1ed TO, sustain contrary position.
Inc oc!y remaining English case that needs to |
'e Gex 50a. That is . case which goes on al
oofs with the one under consideration, and It
mt no,ns bf tha that Is an authority
here were tTo parts to. the agreement, an aflrma-
Ire and negative.
The defendant corenanted that during the spe-
lhc time she would sing certain number or
'ghis Tor the complainant, and also that, during
,e . same ume' sae would not sing for ANYBODY else
he opinion Of Vice Chancellor St. Leeonards in
'1s case IL very full, able and elaborate sttemnt
establish the doctrine that the Court IN agch =
sse may enforce indirectly the Affirmative part of
contract By restraining the defendant from
violation OF the negative part AZ is here asked by
But the difficulty in that case ia
'af The Vice Chancellor relies precedent upon
le authority OF koz7is n. Colman expressing his
oinion that that YVES not case Of partnerahin. ,
men II It were ease Of partnership it. 1aIIs for
. purpose a. d precedent altogether. Fer the
aeons already stated, think It must be couced-
That Viee Chancellor St. Leonards was in error ,
h's We" Of the case Of Morris Ts. Coluan, and
Al consequently The doctrine Of the case OF Lumly
Wagner. Instead Of resting upon authority a. the
Ice Chancellor supposed, has no foundation In
g books beyond the argument Of the Vice Chan. =
1lor IA thst particular case. 0'3Aef- '
11a.og @ nov 10 to the American casea, those bear-
+ fbst sf Cor ce,sti, IT,, = T. E.sa1ol
q the court dec1ded that it was undoubtedly
le o. Law that ne ertdt could not be rranted
n1 the time had arrived, when the duty which I
Is the subject Of the application was to be per.
med md as this was not the case here, refused
application on that ground, incidentally, how
er. be decides upon this class Of csscs thst tie n
ut ds poWerless to compel specific performance :.
on affirmative covenants in agreements Ct this n
aIaetei and then he says that there Is no prece +
In the case Of Hanhltn "a. Dc:nfford, I'd I'd. u
sas, ~. o. ths Tlse chaaeslor, after reviewing B
=, eaSes Of Morris IT, Coleman and Clark sss, e;
-,