1822.-Vezey v. Jamson.

entire disposition of such residue, then, as to such part of such residue con. cerning which no such direction or appointment should be made, upon trust, to pay and apply the same in or towards such charitable or public purposes as the laws of the land would admit of, or to any person or persons, and in such shares and proportions, sort, manner and form, so as his executors, or the survivor of them, or the executors or administrators of such survivor, should, in their or his discretion, will and pleasure, think fit, or as they should think would have been agreeable to him, the said testator, if living, and as the laws of the land did not prohibit, but admit of.

*The testator never by any codicil or memorandum specified any [*70] purpose to which the residue was to be applied.

The plaintiff, as next of kin, claimed the residue as undisposed of; and, on behalf of the attorney general, it was insisted, that it must be applied to charitable purposes, under the direction of the court, pursuant to the wishes of the

testator.

When the cause first came on to be heard, the Vice-Chancellor referred it to the master, to inquire who were the next of kin of the testator at the time of his death, that they or their representatives might all be made parties to this suit.

This was done accordingly; and on the 22d July 1822, the cause was heard for further directions.

It did not appear by the pleadings whether any of the next of kin were legatees or devisees under the will or codicils.

Mr. Bell, Mr. Shadwell, and Mr. Trower, appeared for the various parties. (a) The question was, whether the residuary estate was well given to charitable uses, or belonged to the trustees for their own use, or to the next of kin.

The following cases were cited in the course of the argument, Morice v. Bishop of Durham,(b) Attorney General v. Herrick, (c) Price v. Peacock.(d)

The VICE-CHANCELLOR :-In the event of no appointment of this [71] residuary estate by the testator himself, he has given it to trustees to dispose of it at their will and pleasure, either for charitable purposes or public purposes, or to any person or persons, in such shares and proportions, sort, manner and form, as they in their discretion shall think fit, and the laws of the land shall not prohibit. It is in effect a gift in trust, to be absolutely disposed of in any manner that the trustees think fit, which is consistent with the laws of the land, and so that it be not applied for their own use and benefit.

The testator has not fixed upon any part of this property a trust for a charitable use, and I cannot therefore devote any part of it to charity. He has given it to the trustees expressly upon trust, and they cannot therefore hold it for their own benefit. The necessary consequence is, that the purposes of the trust being so general and undefined that they cannot be executed (a) As the cause was heard in July last, we have no note of the argument. (b) 9 Ves. 399, and 10 Ves. 522.

(c) Amb. 712. (d) Finch, 445; 2 Lev. 267.

1822.-Balfour v. Farquharson.

by this court, they must fail altogether, and the next of kin become entitled to the property. The case of Morice v. Bishop of Durham is precisely in point.(e)

[*72]

1822, 20th November.

BALFOUR v. FARQUHARSON.

A defendant who has put in three insufficient answers, and is in custody for want of a fourth, is entitled to his discharge immediately on filing a fourth answer.

In this case, the defendant had put in three insufficient answers, and, for want of a fourth, he was committed to the fleet.

Mr. Daniel moved for his discharge, upon the six clerk's certificate, that a fourth answer had been filed; and cited Lord Bacon's Orders, Beames's Orders Chan. 28, and Lord Clarendon's Orders, Ib. 183, and Bailey v. Bailey.(a)

Mr. Agar opposed the motion, and cited an order of the 30th April 1700, (b) and contended, that under that order the defendant was to be kept in custody until the master had reported the fourth answer to be sufficient.

The registrar, on being applied to by the Vice-Chancellor, stated, that there was no instance of the order of 1700 having been acted upon, and that the practice had always been conformable to Lord Clarendon's Order.

The Vice-Chancellor directed the motion to be made before the Lord Chancellor.

Shortly afterwards Mr. Daniel returned, and stated to the court, that the Lord Chancellor had said, that, if his Honor was satisfied that the order of 1700 had never been acted upon, he would not be the first to act upon it. The VICE-CHANCELLOR :-Then take your order.[1]

(e) See Mills v. Farmer, 1 Meriv. 55, and 19 Ves. 483, and the cases there cited. In the At. torney General v. Doyley, 7 Ves. 58, in not.--The testator gives real and personal estate to trustces, in trust, (failing other limitations) to dispose thereof to such of his relatives of his mother's side who were most deserving, and in such manner and proportion as his trustees should think fit; to such charitable uses as they should think most proper and convenient. The court decreed one moiety to all the relations on the mother's side, within the degree of third cousins; and the other moiety for charitable purposes; and directed the master to approve a scheme in which the poor re. lations, not partakers of the first moiety were cæteris paribus, to be perferred. See Moggridge v. Thackwell, 7 Ves. 36, and the cases there referred to. [A trust in favor of a charity, must be definite, both as to the persons to be benefited, and the subject of the trust. 2 Story's Eq. 405, 426. Baptist Association v. Hart's Ex'rs, 4 Wheat, 1. Ommanney v. Butcher, 1 Turn. & Russ. 260. Fowler v. Garlike, 1 Russ, & Mylne, 232, Ellis v. Selby, 7 Sim, 352, S. C. affirmed by Lord Cottenham, 1 Mylne & Craig, 286, Where the trust is too vague for the court to execute, the next of kin are entitled, Cases, supra.]

(a) 11 Ves, 151, (b) First published by Mr. Beames, Ord. Cha. 317.

[1] Affirmed 1 Turner, 184. Vide Amer. Ch. Digest, Practice, VII.

1822.-Johnson v. Aston.

*JOHNSON V. ASTON. (a)

[*73]

1822, 20th November.

Money admitted by an executor to be in the hands of his partner, is in his own hands for the purpose of being ordered to be paid into court.

MOTION to pay money into court, on admission in the answer of the defend

ant, an executor.

The defendant was a partner in a mercantile house at Trinadad, and a bill of exchange had been drawn on his house for the money in question, in favor of the testator, by a party, who, it was admitted, had the amount of the bill in the hands of the partnership. The bill was long over due, and the defendant, by his answer, admitted that his partner in Trinadad, had debited the drawer with the amount of the bill, though the money had never been actually remitted.

The VICE-CHANCELLOR:-The money of the executor, admitted to be in the hands of the banker, is in his own hands for the purpose of such an application as the present. The partnership are to be considered as the bankers of the executor. The fact that the money is abroad is a reason for giving a longer time for payment into court.[1]

*BRYSON V. WHITEHEAD.

[*74]

1822, 25th November.-Restraints on trade.

A trader may sell a secret in his trade, and restrain himself generally from the use of it. Specific performance decreed of an agreement to sell the good will of a trade, and the exclusive use of a secret in dying.

THIS was a bill for the specific performance of an agreement, for the sale of the good will of a trade, and of a secret in dying.

The plaintiff had for many years carried on the trade of a dyer in Spitalfields, and had a particular mode of dying bombazeens and stuffs. None but himself and his son-in-law, one Portlock, knew the secret of dying stuffs in that mode; aad this secret was esteemed of great value.

In December 1820, Bryson being about to retire from business, agreed to sell the good will of his trade, together with the plant and fixtures, to the defendant for 1,500/., and the exclusive benefit of the secret for 1,000l. Heads of the agreement in writing were signed by both parties, and were expressed

(a) Ex relatione.

(1) Vide 2 Story's Eq. 139, Rothwell v. Rothwell, 2 Sim. & Stu. 217. That cerned is an additional reason for making the order. Orrok v. Binney, Jac. 523. motions in a cause, vide Marriott v. White, ante 17, et not. ibid.

infants are con. As to incidental

1822.-Bryson v. Whitehead.

as follows: "Heads of agreement between Mr. Bryson, of, &c. and Mr. John Whitehead, of, &c. Mr. Bryson possesses a secret in the art of dying bombazeens, princes stuffs, and other goods, which is known to himself and sonin-law, Samuel Portlock, only: Mr. Bryson is about to retire from his business, and therefore he has agreed with Mr. Whitehead as follows: Mr. Whitehead is to pay him, for himself and son, 1,000l. for the secret, and 1,5007. for the plant and fixtures upon his premises, and for the good will of the trade, and to have the premises leased or assigned at the following rents: [then fol lowed a description of the buildings, and the amount of the rent.] Mr. Bry

son to make the secret known to Mr. Whitehead, and instruct him in [75] the art, and to make over the trade and good will, and use his endea vors to secure it to Mr. Whitehead, by circular letters, and other usual means; and he is not himself to engage in the business of a dyer for twenty years; and he is to engage that his son-in-law will not divulge the secret, op engage in the business of a dyer for the same term as Mr. Bryson; and that neither of them shall do any thing to prejudice Mr. Whitehead in the trade of Mr. Bryson, and in securing and continuing the business of the connections of Mr. Bryson; and he is to procure his son-in-law to enter into an engagement to the same effect to Mr. Whitehead: an inventory of the plant to be delivered, &c. Possession to be delivered to Mr. Whitehead on payment of the 1,000l., and a circular immediately issued, so that the trade may be continued in the usual manner, under the direction of Mr. W., with the assistance of Mr. Bryson, who is to divulge the secret, aud instruct Mr. W. therein immediately after the payment of the 1,000l.: the 1,500l. to be paid upon the leases, &c. being executed according to this agreement, which are to be executed within a month, or sooner: deeds and instruments with full and proper clauses, to be prepared and executed upon the basis of this agreement, and the expense divided."

Whitehead forthwith paid the 1,000l. and was put into possession of the trade, and had the secret communicated to him.

Bryson and his son-in-law soon afterwards executed a bond to Whitehead in the common form, with a penalty of 2,000l. reciting the agreement, and with the condition, that they or either of them would not, for twenty years, [*76] in any manner exercise the trade of dyers within the distance of fifty

miles from Spitalfields, and would not, at any time, disclose the secret. Whitehead, however, thought that this bond (which was prepared by Bryson's solicitor) was not sufficiently restrictive, and that Bryson and his son might, at any time, without incurring any penalty, resume their trade at any place beyond the distance of fifty miles from London; as at Kidderminster, Norwich, or in Yorkshire, where bombazeens and stuffs are principally manufactured. For this reason he insisted on a deed of covenant more restrictive in its terms, and with clauses for liquidated damages in case of breach of the agreement.

Disputes arose in consequence, as to the terms of the deeds to be executed

1822. Bryson v. Whitehead.

under the agreement, and Bryson filed this bill for a specific performance, and for payment of the 1,500.

Mr. Heald, and Mr. Whitmarsh, for the plaintiff.

Mr. Bell and Mr. Theobald, for the defendant, submitted it to the judgment of the court, whether the agreement was of such a kind as could be carried into execution. It was the essence of the agreement that neither Bryson nor his son-in-law should, for twenty years, carry on the trade of dyers. If, however, the agreement was to be acted on so as to confine the restriction on exercising the trade to places within fifty miles from London, then the defendant would not have that benefit which he had stipulated for by the agreement; because the plaintiff, or his son-in-law, by removing to Norwich, or any other convenient situation beyond the distance of fifty miles, would come *into direct competition with him. If considered as an agreement not [*77] to exercise the trade of a dyer any where for twenty years, it was void by the policy of law, Mitchell v. Reynolds. (a) If, on the other hand, it was to be acted on so as to limit the restraint on carrying on the trade to the distance of fifty miles from London, the defendant would lose the benefit for which he had contracted.

THE VICE-CHANCELLOR :-Although the policy of the law will not permit a general restraint of trade, yet a trader may sell a secret of business, and restrain himself generally from using that secret. Let the master, in settling the deed which is to give effect to this agreement, introduce a general covenant to restrain the use of the secret for twenty years, and a limited covenant, in point of locality, as to carrying on the ordinary business of a dyer, both parties being willing that the agreement should be so modified.

The decree therefore referred it to the master to settle a proper deed. (b)

(a) 1 P. W. 181.

(b) It is a very ancient part of the policy of the law to discourage restraints on trade, as being injurious to the public. But no judge has carried his abhorrence so far as is reported of Hull, J. in the Year Book, 2 Hen. 5. There a dyer was bound that he should not use his craft for two years, and Hull held that the bond was against the common law, "and by G-d (said he), if the plaintiff were here, he should go to prison till he had paid a fine to the king." In Mitchell v. Reynolds, 1 P. W. 181, Parker, C. J. in his admirable exposition of the laws on this subject, excuses the transport of Mr. Justice Hull's indignation, on the ground that it was excited by a case of most gross fraud and villainy. As to the general doctrine, see Davis v. Mason, 5 T. R. 118; Chesman v. Mosely, 1 Bro. P. C. 234; Shackle v. Baker, 14 Ves. 468; Cruttwell v. Lye, 17 Ves. 335; Harrison v. Gardner, 2 Madd 198, &c. [Vide 2 Story's Eq. 29; as to agreements in restraint of trade. See further, 1 Story's Eq. 289. Noah v. Webb and others, 1 Edw. 604. An association formed to buy and sell public lands of the government, and prevent a competition, is void. Carrington v. Caller, 2 Stewart, (Alabama,) 175.