the fixtures of trade, to the plaintiffs, their executors, administrators and assigns, absolutely; and he covenanted with them that he the defendant would not at any time thereafter, either by himself or in connexion or by any other person or persons, directly or indirectly carry on the said trade or business of a horsehair manufacturer at any town, city or other place in the United Kingdom within the distance of 200 miles from the town of Birmingham without the consent in writing of the plaintiffs from time to time first had and obtained, except for their benefit and at their request, under a penalty of 1,000., to be paid to the plaintiffs, their executors, administrators and assigns. It was then declared that nothing therein contained should extend to prevent the defendant from buying and selling Mexican fibre as a wholesale dealer ; but he should not, either directly or indirectly, be at liberty thereafter to manufacture the same. The defendant then covenanted that he would introduce the plaintiffs, their executors, administrators and assigns, to his customers, and use his best endeavours to promote the said trade or business, and give them the full advantage of his connexion and custom in the trade or business. The evidence shewed that the business of a horsehair manufacturer was in very few hands; but that the business of a dealer was carried on by a large number of persons; that previous to the sale of the business, the defendant carried on both the business of a manufacturer and a dealer; and that since the execution of the assignment he had been in the employment of his brotherin-law, a horsehair manufacturer at Birmingham. The defendant, by his answer, also admitted that he had bought manufactured horsehair within the circuit of 200 miles from Birmingham for the purpose of selling it again, though not for the purpose of manufacturing it. Mr. Baggallay, Mr. Karslake and Mr. F. Clifford, for the plaintiffs.-It would, no doubt, be argued that a covenant not to carry on business within a circuit of 200 miles was unreasonable and excessive; but considering the modern facilities of communication and the modern means of transport, it might safely be asked whether a general restriction without limit would be against public policy; and, considering the certainly was not covenant not to The con nexions all parts of the altered state of trade, it Tallis v. Tallis, 1 E. & B. 391; s. c. Law J. Rep. (N.S.) Chanc. 837. Mr. Selwyn and Mr. Druce, for Joseph Parsons. There was a great difference between a manufacturer and a dealer in horsehair. The manufacturing business had been sold; and the bill did not allege that there had been any breach of the actual contract. The plaintiffs, however, had excluded the defendant from carrying on business within limits far larger than were reasonable or necessary for their protection. So far, therefore, the covenant was void; and the Court would not grant the injunction asked, and it would certainly not extend the terms of the deed so as to prevent the defendant from dealing in horsehair. Horner v. Graves, 7 Bing. 735; s. c. 5 M. & P. 768; 9 Law J. Rep. C.P. 192. Price v. Green, 16 Mee. & W. 346; s. c. 16 Law J. Rep. (N.S.) Exch. 108. Mallan v. May, 11 Mee. & W. 653; s. c. 12 Law J. Rep. (N.S.) Exch. 376: 13 Mee. & W. 511; 14 Law J. Rep. (N.S.) Exch. 48. Mr. Baggallay, in reply, said that the contract with the plaintiffs extended not only to manufacturing, but also to dealing, whether in the raw material or in manufactured goods. The contract extended to all the benefits to arise from the trade carried on by the defendant as manufacturer. The MASTER OF THE ROLLS.-Restraints of trade, for which a consideration has been paid, are undoubtedly valid. It rests, however, with the discretion of the Court to say whether the restraint is reasonable or excessive. In Whittaker v. Howe a covenant for valuable consideration not to carry on the business of an attorney and solicitor in Great Britain for twenty years was considered good. The business of a horsehair manufacturer appears to be in few hands; still it cannot be considered that 200 miles is a restriction which can affect the contract the defendant has entered into. The defendant says that he had not broken the contract; that the business of a manufacturer is distinct from that of a dealer; and that he has not assigned the business of a dealer. Strictly, it is impossible to say that he has carried on the business of a manufacturer; but he has bought and sold on his own account manufactured horsehair within the proscribed limits after selling the whole of his stock to the plaintiffs. This was a part of the business of a horsehair manufacturer, and a part he had contracted to sell. It was also a part of the business of a dealer; but so much of it as appertained to the business of a manufacturer the defendant had assigned to the plaintiffs for value; and, so far, the deed must be construed most strongly against the grantor. The defendant, therefore, must be held to have sold all that belonged to the business of a horsehair manufacturer. His Honour accordingly granted an injunction to restrain the defendant from buying and selling manufactured horsehair, either by himself or any other person, directly or indirectly, or in anywise interfering with the trade or business of a horsehair manufacturer; but said the bill must be dismissed so far as it sought to restrain the defendant from carrying on the business of a dealer, as distinguished from the purchase and sale of manufactured horsehair; and as the plaintiffs had asked more than could be given to them, each party must pay his own costs. Further proceedings must also be stayed, and there must be liberty to apply. NEW SERIES, 32.-CHANC. The owners of a British ship mortgaged her in England, and she afterwards was taken by the mortgagors to New Orleans, where she was attached by creditors, who took proceedings in the Courts there for the purpose of making her available for their demands. The English mortgagees intervened in these proceedings for the purpose of asserting their rights; but their claim was wholly disregarded, the law of New Orleans not recognizing a mortgage of chattels; and, under an order of the Court, the ship was sold to a British subject. The ship having afterwards returned to England with a cargo, the mortgagees filed a bill to enforce their claim-Held, that the judgment of a foreign Court of competent jurisdiction is conclusive inter partes on the merits of the matter in dispute, but may be reviewed by the Courts in England if any error appears on the face of the record. Where a foreign tribunal acts in defiance of the comity of nations by refusing to recognize a title properly acquired according to the laws of England, its judgment will be disregarded by the English Courts. In the distribution of assets the Lex fori prevails. In this case the bill was filed, by the Bank of Liverpool, as mortgagees of the British ship Warbler. The ship had been sold at New Orleans to the defendant Fogo, a British subject, under a decree of the Courts there, they refusing to recognize the title of the mortgagees. The ship was now in this country, and this suit was instituted to ascertain and enforce the rights of the plaintiffs. The case is reported on demurrer in 1 Jo. & H. 18; and 29 Law J. Rep. (N.s.) Chanc. 657, and now came on for hearing on motion for decree. The facts of the case are fully set out in the judgment of the Vice Chancellor and in the above report. Sir Hugh Cairns, Mr. Charles Hall and Mr. Milward of the common law bar, for 2 K the plaintiffs, contended that this was a judgment in personam and not in rem; that, therefore, it was not conclusive as to the title to the ship; that the Courts in this country would examine the judgment of a foreign Court, not being a judgment in rem, if there appeared on the face of it an error sufficient to shew that the Court had come to an erroneous conclusion either of law or fact, or if the judgment itself was repugnant to the comity of nations. On these points the following authorities were cited: The Duchess of Kingston's case, 2 note. Dalgleish v. Hodgson, 7 Bing. 495; s. c. 9 Law J. Rep. C.P. 138. Reimers v. Druce, 23 Beav. 145; s. c. 26 Law J. Rep. (N.S.) Chanc. 196. Livermore's Dissertations, 137, 140. Mr. Giffard, Mr. Mellish, of the common law bar, and Mr. W. F. Robinson, for the defendant Fogo, contended that the sale was valid; that the law of Louisiana, not recognizing mortgages of chattels, was not a barbarous or unreasonable law, and that the judgment founded on that law ought to be upheld in the English Courts. On these points the following cases were cited: Cammell v. Sewell, 5 Hurl. & N. 728; s. c. 29 Law J. Rep. (N.S.) Exch. 350: affirming the judgment below, 3 Hurl. & N. 617; s. c. 27 Law J. Rep. (N.S.) Exch. 447. Castrique v. Imrie, 8 Com. B. Rep. N.S. 1, 405; s. c. 29 Law J. Rep. (N.S.) C.P. 321; 30 Law J. Rep. (N.S.) C.P. 177, 281. Hope v. Hope, 4 De Gex, M. & G. 328; Mr. Aikin, for other defendants. WOOD, V.C. (Feb. 13.)—In the year 1854 the plaintiffs acquired a title to the ship Warbler by an assignment in the nature of a mortgage, duly registered according to the laws of this country; and no question has been raised as to the validity of that mortgage. The mortgagors, Messrs. Klingender, continued to navigate the ship, which they might well do without any impeachment of the title of the mortgagees; and in January 1858 the ship arrived at the port of New Orleans, in Louisiana, and was there attached by one of the creditors of the mortgagor, named Hyllested, first by way of process, and afterwards in a more formal manner, for the purpose of placing her in the hands of the sheriff that she might be sold. The plaintiffs in the mean time, and anterior to any decision with reference to the sale of the ship, sent out to Mr. Mure, their agent at New Orleans, a power of attorney to take possession of the ship on their behalf, which by the law of England he was entitled to do. Mure, finding the vessel attached as mentioned above, adopted a course pointed out by the law of Louisiana, presenting to the Court there his title to the ship, and claiming her by what is called a petition of intervention. The result of the whole case was, that the Court of Louisiana, having heard him, declined to recognize any title whatever in him, and sold the ship, but sold it under a process exactly analogous to our writ of fi. fa.; that is to say, they sold all the right and interest of the Messrs. Klingender in the ship. Apart from the intervention, there can be no doubt what the result of this state of things would be. According to our law, a sale of all the right and interest of Messrs. Klingender in the ship would simply pass the equity of redemption, subject to the mortgage; the creditors would take, subject to any claim of the mortgagees, when they should proceed to sell the ship, and upon such sale would only be entitled to the surplus purchase-money after payment of the mortgagees. There can be no doubt that the words of the judgment are, that the sheriff shall sell all the right and interest of the debtor; and it appears from the evidence that had there been no intervention, the mortgagees would not have suffered; any right that the debtor had in the ship would have been secured to the creditors, and nothing more would have been done; and whenever the plaintiffs could obtain possession of the ship in any part of the globe, they would have been recognized as the owners, and their right would have been admitted to the extent of their mortgage. I have had considerable difficulty in extracting from the cases the principles by which this Court must be guided in reference to a foreign judgment like the present, supposing this Court to arrive at the conclusion that the foreign judgment is, on the face of it, contrary to the recognized principles of what is commonly called the "comity of nations"; dealing in a manner peculiar to the law of that foreign country, and not condescending to take any notice whatever of the law which exists in the country by which the title to the ship was originally regulated. The general principle that has been established by the comity of nations, and in the interests of commerce, is this, that that title which a man has legally acquired in one country shall be a good title to him all over the world of course, this is subject to the principle by which Courts are regulated with regard to the acquisition of a legal title. As to real estate, the legal title throughout the world can only be acquired according to the laws of the country in which the real estate is situated affecting the transfer of real estate the "lex loci rei sita." As regards the title to property of a moveable nature the question sometimes arises whether the lex loci contractûs or the lex domicilii of the parties shall prevail; but in this case it is unnecessary to consider that question, because undoubtedly both the locus contractus and the domicile of the parties were British; and if as in some cases has been held, the lex loci rei site is to be applied here, that would not affect the question, as the moveable also was in this country at the time of the contract. Therefore, in every conceivable case the plaintiffs have acquired a title to this ship, which, according to ordinary jurisprudence and the comity of nations, as recognized throughout the civilized globe, would have given them a title in every part of the world. However, the ship goes to Louisiana, where a very peculiar law has been established; the Courts there say, with regard to creditors attaching property that comes within their jurisdiction, that they will be governed solely by the title which has been acquired according to their own law; and that as regards the creditors, if the title be not acquired in such a manner as their law points out, that title will be by them utterly disregarded. In this state of the law there is great difficulty in deciding how far the general principle which I have referred to can be held to apply to a case where, as in the present instance, the purchaser at a sale in Louisiana has acquired a title which certainly, according to the law as there administered, has given him a good title, and it comes to be a contest between the prior title acquired in this country. (which would be recognized in every country of the globe but Louisiana), and the title acquired in Louisiana in defeasance of that prior title. The Court of Louisiana could only deal, and so far as it directed a sale of the ship, only affected to deal with such title as the Messrs. Klingender possessed; there was no judgment in rem, but simply a sale of all their right and interest. It has been contended that this was not a judgment inter partes; but in consequence of the intervention by Mure it has been brought, I think, within the doctrine of a judgment inter partes, and I shall decide this case on the assumption that there has been a clear decision between the plaintiffs and the selling creditor. The Court having decided that the creditor is to prevail, and the right of the plaintiff is not to be recognized, I must take it that that is a decision inter partes; and if so, it appears to me that the defendant, who claims under what may be called the right of the creditor, claims through the act of the Court directing the sale, that is, through the right of the creditor setting the Court in motion, and may claim to have had the decision of the Court inter partes, as he derives his title from one of the parties to the litigation. Since the case of Ricardo v. Garcias (1), in the House of Lords, the general law as to foreign judgments is so well settled that it presents but little difficulty. A foreign judgment, so far as regards the judgment simpliciter, with nothing appearing on the face of it with which a Court in this country, or in any foreign country, can deal, is conclusive upon the merits of the matter in (1) 12 Cl. & F. 368. controversy between the parties to the litigation, and that doctrine was followed in the recent case of De Cosse Brissac v. Rathbone (2), in which the Court said it was too clear a point for argument. There still remains the question how far the Courts can examine a foreign judgment with reference to anything that appears on the face of it. It has been decided that if anything manifestly contrary to natural justice (that is, contrary to the ordinary apprehension of justice) appears on the face of the record, the Courts here are entitled to disregard the judgment, as in the case of Buchanan v. Rucker (3); a case in which it appeared that a process had not been served, except by a notice posted on the Courthouse-door, the party being out of the jurisdiction, and not resident on the spot; it was held that such a judgment was not conclusive. It has also been held in several cases that any peculiar legislation of foreign countries with regard to a special subject-matter, (as, for instance, in matters of "prize,") which has not been generally recognized or adopted, if it appears on the face of the record, is to be disregarded. This question has more often arisen with respect to policies of insurance than in any other mode. If during war a policy of insurance be effected on a ship, and the ship is declared to be neutral, and in one country there be any local legislation not recognized by the other countries of the world, by which particular ships are held not to be neutral if they contravene certain regulations, the Courts of all other countries are entitled to disregard such special regulations by which they have not consented to be bound; and in such a case even a judgment in rem (which is the strongest instance) will be held inoperative. There is a third class of cases, of which Novelli v. Rossi (4) is an instance. If it appears on the face of the judgment, not being a judgment in rem, that the law of England was intended to be administered, but has been mistaken, the Court feels itself entitled to disregard the judgment. With these exceptions, the Courts have held the judgments of foreign countries. (2) 6 Hurl. & N. 301; s. c. 30 Law J. Rep. (N.S.) Exch. 238. (3) 1 Campb. 63; s. c. 9 East, 192. (4) 2 B. & Ad. 757; s. c. 9 Law J. Rep. K.B. 307. conclusive; and, à fortiori, the judgments of our own colonies, because they are subject to a special appeal to the Privy Council. I have always felt bound to adhere to this doctrine; and I think it right to mention one case in which I departed somewhat from that course; that is the case of Hunter v. Stewart (5), which went, on appeal, from this Court to the Lord Chancellor in that case I thought the plaintiff was estopped from further proceedings here, he having filed a Bill in respect of the same subject-matter, but on a different ground, in Australia, a colony belonging to our own government. The Lord Chancellor was of opinion that the foundation of the claim being new, although in reference to the same subject-matter, (and although it was the foundation of a claim which he possessed, and knew that he possessed at the time he instituted the original proceedings,) he might file a new bill in relation to that equity, which he did not avail himself of in the former suit. Certainly I had supposed, erroneously no doubt, that the view which appears to be taken by Vice Chancellor Wigram, in a case of Henderson v. Henderson (6), prevailed in reference to the question whether or not you are entitled, being in full possession of all your rights to keep back some portion of them, file a Bill in respect of the other portion, and afterwards file a Bill in respect of the rights so kept back, upon different grounds when your first has failed. But here is a case of a foreign judgment, which distinctly, on the face of it, states our law, and says that it disregards it, giving reasons for so doing, which are entitled to great weight. I apprehend that I clearly have a right to look at these reasons assigned by the Judges as part of the judgment; (that question was gone into by the Master of the Rolls, in the case of Reimers v. Druce;) appearing, as they do, on the face of the record like the jugements motivés, which the French Judges frequently deliver, they must be taken to be a portion of the judgment itself. The facts of the case appear to have been as follows. Hyllested attached the ship for a large debt, she being at that time in the possession of the mortgagor; (5) 31 Law J. Rep. (N.s.) Chanc. 346. (6) 3 Hare, 100; s. c. 13 Law J. Rep. (N.s.) Q.B. 274. |