reserve unimpaired, and imposing upon them obligations would be compelled to reverse all the sound and settled rules which they never intended to assume. as and principles of insurance. Such seeming attempt at judicial alteration of contracts, nflicts the greatest wrong upon all mutual companies. The computation and prompt payment of interest on premium notes, is of the very essence of the agreement to insure. How is a company enabled to state for what money and how payable it can safely assume a risk, but for its tables of rates, which are based upon nice calculations upon the age, amount, term or kind of insurance desired? A company by these calculations ascertains that if the party insuring will pay the premiums in advance, it will at the end of the life, with reference to its expectation, be possessed of enough money to pay the assurance. All calculations being upon the hypothesis that the premiums were to be paid in advance in cash, this ceases to be so when interest upon outstanding notes is permitted to remain as a charge upon the sum to be paid at the termination of the insurance. To insure the prompt payment of this interest, the clause of forfeiture is inserted. Such is the intention of the contracting parties; such the plain reading of the contract. Other construction would force largely increased premiums, to enable companies safely to carry risks. It will therefore be seen that the element of interest payable in advance in all contracts of insurance, where it is so provided, is an integral part of the contract, and only by a prompt compliance with the requirements to thus pay, are companies warranted in assuming the risks. INSURANCE. There is another view taken in this case which we deem erroneous, and which has been heretofore alluded to by your correspondent "J. O. P.:" Without any provision to that effect in the policy, the court holds that the policy, and all profits and payments to which she is entitled thereunder, are pledged and hypothecated to the company for the ultimate payment of the loan and its accrued interest. There was no evidence of any such pledge, and a matter of fact such a pledge is not contained in the policy; but the court, proceeding upon this assumption, applies the doctrine relating to the contract of pawn, that a collateral pledge by an ordinary debtor to secure the payment of his debt, will not be forfeited for the non-payment of interest, notwithstanding his agreement that it shall be so forfeited; and proceeding upon this assumed condition of the contract, holds there is no reason why the company should be allowed to forfeit the paid-up policy of insurance, hypothecated to secure the ultimate payment of the note or loan owing by Grigsby. By thus in effect interpolating into the policy, a contract of pledge or pawn, the court has, perhaps unintentionally, made a contract for the parties which they themselves never made or contemplated; and the court in this case has gone out of the course of adjudication, and ignored what seems to be a well-settled doctrine, that a failure to pay a premium note at maturity will avoid the policy, when so conditioned, equally with a failure to pay upon the exact day a cash premium; and if the logic of this case is carried out, a failure to pay a premium note as well as the in- Railway Carriers-Warehousemen-Responsibility terest thereon, is not a cause of forfeiture-although expressly so conditioned, a position which it is believed the court would not willingly assume. Roberts v. N. E. Mut. Life, 1 Desney (O.) 355; 2 Desney, 106; Pitt v. Berkshire L'fe, 100 Mass. 500. See also Worthington v. Charter Oak Ins. Co., Ins. Law Jour. April, 1875. the for Goods after Arrival. MITCHELL v. LANCASHIRE AND YORKSHIRE RAILWAY English Court of Queens Bench, April 22, 1875. Railway Company-Carriers-Warehousemen-Effect of notice of Arrival of Goods-Goods held by Warehousemen" at Owner's Sole Risk."-Injury to company, having completed the carriage of certain goods, sent an advice-note of their arrival to the consignee, saying they held the goods, "not as common carriers, but as having been properly warehoused, and consequently damaged, Held, that the terms of the advice-note did not exempt the defendants from liability for negligence as warewere not perishable, whilst a disclaimer of the goods by the plaintiff was not removed. Goods pending a Disclaimer of them by the Plaintiff.-The defendants, a railway warehousemen, at owner's sole risk, and subject to warehouse charges." The goods not housemen, and that it made no difference that the injury happened to the goods, which The action in this case was for negligence whereby certain flax belonging to the plaintiffs became injured. But the court seems to consent to the settled adjudications that a failure to pay the premium note would forfeit the policy, but seeks to avoid the effect of the adjudication, by making a distinction between the note itself and the interest unpaid thereon, notwithstanding the case of Patch (supra), which holds that the "interest upon the notes becomes practically a premium upon the policy, payable annually in advance," and that as a necessary result a failure to pay same, like a default in the payment of any cash premium, works a forfeiture of the policy. See 7 West. Ins. Review, 335; Ferrebee v. N. C. Ins. Co. 68, N. C. 2; in each of which cases there was a forfeiture for the non-payment of a collateral obligation, and there was no thought or suggestion of applying the doctrine of pledge, thereby seeking to make a contract which the parties had not made for themselves. It is certainly a new position, not to be found in any adjudicated case, and which we think ought not to be entertained; for, if carried out, the result will be that no default in the pay-pany, not as common carriers, but as warehousemen, at owner's ment of a premium note, whether for principal, interest, or an actual cash premium, will work a forfeiture, inasmuch as the insurer may ultimately deduct it from the sum insured. Such a doctrine is opposed to the authorities on this subject, and this case stands alone in its maintenance, and should it be carried out to its logical results, our insurance institutions. At the trial before Denman, J., at the Liverpool Spring Assizes, 1874, it appeared that the plaintiffs carried on the business of felt merchants near Newchurch, where the defendants have a station. In July, 1873, sixty bags of flax arrived at the Newchurch station consigned to the plaintiffs, and on their arrival the following notice with regard to them was signed on behalf of the defendants and sent to the plaintiffs:-" The under-mentioned goods consigned to you, having arrived at this station, I will thank you they remain here to your order, and are now held by the comfor instructions as to their removal hence as soon as possible, as sole risk, and subject to the usual warehouse charges, in addition to the charges now advised. When you send for the goods, please to send this note. No delivery effected after six o'clock in the evening. The directors require the carriage to be paid on delivery unless the consignee has a ledger account with the com*From the report in 23 Weekly Reporter, 853. pany." Following this notice was a description of the goods and the amount charged for the carriage. The goods were not immediately removed by the plaintiffs, and for want of warehouse room, remained in the open air covered with tarpaulin. owner only. It may be laid down generally that he holds them as bailee, and as such is responsible to the owner of the goods, whoever he may be, and he is bound, therefore, to take ordinary care of them. Mr. Herschell took two points, and I will deal with On the 25th of July, the plaintiffs removed nine bags, and on the second one first. He contended that, inasmuch as the plainthe 4th of August, four more; these were in good condition, but tiff disclaimed the goods, and told the company that they held not being of the quality ordered by the plaintiffs, they informed them, not for him, but for the consignor, though afterwards he the defendant of their intention to refuse acceptance of the rest. found out his mistake and took the goods, yet he can not sue for Some correspondence ensued between the plaintiffs and the ven- the injuries that happened to the goods between the time of his dors of the flax, and in consequence the plaintiffs removed some saying the goods were not his, and his discovering his mistake. I more bags in October; it was then discovered that the flax had been can not see that the obligation of the defendants was released greatly damaged by wet. The plaintiffs allege that the flax was during that time, for the plaintiff, as owner of the goods, even injured by reason of its not having been stacked on timber, and though he did say he was not the owner, on discovering his mison account of insufficient covering. The defendants claimed free- take is entitled to say to the defendants, "You ought to have taken dom from any liability, by reason of the notice they had given the ordinary care of the goods, and, not having done so, are responplaintiffs. The plaintiffs having taken the goods and sold them sible to me for the damage the goods have sustained." No doubt at a greatly reduced price, brought this action to recover their in some cases the goods would be damaged by mere lapse of time, loss. The defendants admitted that unless they were protected by | fruit for instance, and other articles. Such damage being caused the notice, they were guilty of negligence, and the jury returned by delay on the part of the owner would be at his risk, and he a verdict for the plaintiffs for £114. Pursuant to leave reserved, must suffer. But in the present case the goods were not perisha rule was afterwards moved for and obtained to enter the verdict able, and if they had been properly taken care of, would have refor the defendants, or for a non-suit, if there was no evidence on mained safe. They were not taken care of, and I think the plainwhich the jury could find for the plaintiffs. tiff is entitled to say whatever liability the defendants incurred, they incurred to him. Mr. Herschell's other point was, that the company got rid of this liability, by sending the plaintiff this notice. [The learned judge read the notice.] No doubt the contention is right, that the notice having been brought to the attention of the plaintiff, he may be taken to have assented to the goods being held by the defendants, not as common carriers, but as warehousemen, and sub Crompton (Sir J. Holker, S. J., with him), for the plaintiffs, showed cause against the rule.—The defendants could not release themselves from all responsibility by merely giving the notice relied upon. The effect of the notice was merely to change the nature of their liability. The following cases were refered to M'Cawley v. Furness Railway Company, 21 W. R. 140, L. R. 8 Q. B. 57; Robinson v. Great Western Railway Company, 14 W. R. 206, 35 L. J. C. P. 123; Phillips v. Clark, 5 W. R. 582, 2 C. B.ject to warehouse charges, but I think it is most unreasonable to N. S. 156; Ohrloff v. Briscall, 1 P. C. 231. ask us to construe the words " at the owner's sole risk," as mean- . Herschell, Q. C., supported the rule.-The defendants are en- In M'Cawley v. Furness Railway Company, 21 W. R. 140, L. R. 8 Q. B. 57, the plaintiff, who was a drover, went gratis with cattle, on the understanding that he travelled at his own risk; this was the defence pleaded, and I think we came rightly to the conclusion, that the company were not responsible for any accident which happened to the plaintiff, through the negligence of their servants. The contract here, however, is not such as to admit of the construction put upon the contract in the case I have just re FIELD, J.-I am of the same opinion. The principal point in the case stands thus: The defendants were originally under a contract to carry these goods to Newchurch station, and, I take it, their duty was to do what they did do, viz., give notice to the con signee of their arrival, and then it became the consignee's duty to send for them within a reasonable time. During that reasonable time it might be a question whether the company held the goods as carriers or warehousemen. The defendants, however, adopted the usual course; they give notices of arrival, and say, BLACKBURN, J.-I am of opinion that this rule must be discharged. When the company received the goods they took them with the liability of carriers, which, except so far as it is qualified, may be said to be that of insurers. When the goods had arrived at their destination, and notice had been given of their arrival to the consignees, then I think the defendants ceased to be under the liability of carriers, and became bailees. There have been several cases where the question has been discussed whether the liability of the carrier, after the arrival of the goods, and before de-"send for the goods," and they say also at the same time, "if livery to the consignee, remains that of a carrier, or is changed into that of a warehouseman. The question is fully considered in the cases of Bourne v. Gatliffe, 4 Bing. N. C. 314, Ex. Ch. 3 M. & G. 643, in H. L. 11 Cl. & F. 45, and Cairns v. Robins, 8 M. & W. 258, and it has been decided that until the lapse of a reasonable time for the removal of the goods, the liability as of a carrier still continues. There is no case in support of the proposition, that because the consignee is in fault by delaying to remove the goods, therefore the carrier or bailee held the goods at the risk of the you do not send for them, we give you notice that we will no longer be liable for them as carriers, but only as warehousemen." They were not bound to hold the goods as carriers, though they might have done so; it was for them to determine under what terms to hold them, and they did in point of fact, hold the goods on the terms of their own notice. Therefore, does it not come to a question as to what is the true construction of their notice? Undoubtedly, the words "at owner's sole risk," do create a difficulty in its construction, and I must confess I do not see what elemer killed on a public road-crossing, unless the employees have been guilty of negligence or willful misconduct in the management of the train. that expression provides for, looking at the exact nature and character of a warehouseman's liability. I am bound to look at the whole contract and read it altogether, and I find the words "at owner's sole risk" follow the words which describe in what way The cow was killed in the dusk of the evening. There is not a they choose to hold the goods, and they say, "We will not hold particle of evidence, showing or even tending to show the engine them any longer as carriers, but we will hold them under the driver saw or could have seen her on the track in time to have character and definition of warehousemen, and for a warehouse-stopped the train and avoid the collision. man's duty, which is to take ordinary care of the goods, we will make you a warehouseman's charge." Therefore, I can not help reading the words "at owner's sole risk," as not relieving them from a warehouseman's liability of taking ordinary care of the goods. With regard to Mr. Herschell's second point, I also agree with my learned brother, and I think, therefore, that this rule should be discharged. Rule discharged. This case, in its facts, is totally unlike the case of the C. & N. W. R. R. Co. v. Barrie, 55 Ill. 227; cited by council, and is not an authority in point. There it was positively proven the cattle on the track were seen, or at least could have been by the engine driver in ample time to have stopped his train, but this record contains no such evidence. This court has repeatedly decided it is not enough to create a liability for stock killed by a railroad train, to prove the bell was Attorneys for the plaintiffs, Milne, Riddle & Mellor, for Har- not rung or the whistle sounded. It must be made to appear, by greaves & Knowles, Newchurch. Attorneys for the defendants, Clarke, Woodcock & Ryland, for Grundy & Co., Manchester. Liability of Railroad Companies for Animals Killed at the Crossing of a Public Highway-Failure to give Signals. facts and circumstances proven, that the accident was caused by reason of such neglect." C. B. & Q. R. R. Co. v. McKean, 40 Ill. 218. The burden of proving negligence rests on the party alleging it. This record contains no reliable evidence that the servants of the company in charge of the train were guilty of any negligence what ever. The appellee called but two witnesses on the point whether the THE QUINCY, ALTON AND ST. LOUIS RAILROAD COM- bell was rung. One of them, Mary Meekamp, states she was standPANY v. JOBST H. WELLHONER.* 3. Negligence-Failure to give Signals. It is not enough to create a liability for stock killed at a crossing by a railroad train, to prove that the bell was not rung or the whistle sounded. It must be made to appear, by facts and circumstances proven, that the accident was caused by reason of such neglect. 3. Evidence.--Positive evidence is entitled to more weight, other things being equal, than negative evidence. The evidence of one who does recollect that a given act was performed is usually entitled to more weight than the evidence of one who does not recollect. Appeal from the Adams Circuit Court. Mr. JUSTICE SCOTT delivered the opinion of the court. This action was to recover the value of a cow killed by the engine and cars on appellants road. It is admitted it was killed on a crossing of a highway over the railroad track between the cattle guards. No question is raised that appellant had not properly fenced its road and constructed good and sufficient cattle guards at the crossing where the accident occured. It is contended, the company is liable on account of the negligence of its employees in charge of the train in failing to ring the bell or sound the whistle before reaching the crossing, and in running the train at an increased rate of speed. We are always reluctant to disturb the finding of a jury, and, especially where the amount involved in the controversy is trifling, but the verdict in this case is so manifestly against the weight of the evidence, we are constrained to reverse the judgment rendered thereon. ing about one hundred and fifty steps from the crossing when the On the other hand the proof shows there was a bell on the engine, that was rung by steam. The engine driver and the fireman both testify they remember distinctly the fact a cow was killed on the crossing at Kirk's Mill, and that the bell was rung, that it had been ringing for miles before reaching the crossing, and that it was not stopped until the train reached the depot at Quincy. Being rung by steam it was kept ringing continuously while the train was in motion. Both witnesses testify to this fact. With what propriety can it be said, this positive testimony is overcome by the negative recollection of appellee's witnesses? The most favorable view that could possibly be taken would be to say the evidence is equally balanced. In that event the law is for the defendant and no recovery could be had. But this would be an unfair view to take. It greatly preponderates in favor of appellant. There is no warrant in the evidence for saying the train was run at an unusual rate of speed. The testimony offered to prove that fact is not of such a character as to make any impression on the mind. NOTE.-In Owens v. Han. & St. Jo. R. R. Co., 58 Mo. 386--392, it was said: "The evidence was conflicting as to whether the whistle was sounded as the statute requires or not, and it was proper to submit that question of fact to the jury; and if it was found by the jury that the bell had not been rung, nor the whistle sounded, as the law requires, that was sufficient of itself to create a liability on the part of the defendant." The court excluded evidence offered by defendant to prove "that from the condition and disposition of the cattle at the time of the killing, they would not have been apt to have run from the road from the mere noise occasioned by the The suThere is no pretence, that the company can be held liable for stock ringing of a bell or the sounding or blowing of a steam whistle.'' preme court said this evidence was 'wholly irrelevant and immaterial as ap*For the report of this case and the valuable note appended to it, we are in-plicable to any issue in the case, and was therefore properly excluded." There debted to M. A. Low, Esq., of Gallatin Mo. was no attempt to show that the neglect to ring the bell caused the injury. But the instructions given the jury on behalf of the plaintiff required them to find that the neglect to give the signals caused the injury. In Stoneman v. A. & P. R. R. Co., 58 Mo. 503, the judgment was reversed The court below failed to submit to the jury the question whether the neglec❘ to give the signals caused the accident. The evidence is not stated in the opinion, but from the reference to Howenstein v. P. R. R. Co., 55 Mo. 33, it is probable that there was no evidence tending to show any connection between the negligence of the defendant's employees and the accident. In this last case the judgment was found upon an agreed state of facts, in which it was admitted that the signals were not given, but the agreement did not admit any connection between that omission of duty and the accident to plaintiff's animal, and as the court in such a case could not infer other facts than those admitted, the judgment for the plaintiff must have been given upon the ground, that as a matter of law the failure to ring the bell or sound the whistle rendered the defendant liable, and such seems to be the view taken of it by the supreme court. In delivering the opinion of the court in this case, Vories, J., said: It is insisted that the first declaration of law made by the court was improper, as the court omitted to declare therein that the negligence of the defendant must have caused the injury, in order to make the defendant liable. *** But I do not think that position is correct. * It is presumed that by the timely warning provided, persons and stock passing on the highway will escape from the railroad and prevent a collision and the consequent damages resulting therefrom." Judge Napton is clearly in error when he says that this last case does not announce any different doctrine from that laid down in Stoneman v. The A. & P. R. R. Co., supra. A correspondent of the JOURNAL over the signature of " H." recently called attention to a conflict between the Stoneman and the Owens cases, supra, but the conflict is more apparent than real, and is mostly confined to the syllabi. The real conflict is between the Stoneman and Howenstein cases. The decisions of our court on this question are sadly in need of reconstruction. The Stoneman case holds the queer doctrine that the failure to give the signals does not, as a matter of law, make the defendant liable for an animal killed at a crossing, but that it does as a matter of fact. The same facts must, necessarily, when given in evidence, tend to prove the same thing. If the mere killing of animals at a crossing without giving the required signals, without evidence of other facts and circumstances, is sufficient in one case to show tha the failure to give the signals caused the injury, it ought to be sufficient in all cases. Otherwise the rights and liabilities of the parties would depend wholly upon the whim of the jury, or the mood of the court. The Supreme Court of Illinois has at last, we think, settled on the only reasonable rule in such cases. The decisions in that state have been even more conflicting and wavering than in Missouri. In Ill. Cent. R. R. Co. v. Phelps, 29 Ill. 447, Walker, J., in delivering the opinion of the court, said: "It must be inferred that a failure to ring the bell or sound the whistle at the street crossing did not produce the injury, unless by doing so it would have prevented the animal from attempting to cross the road as it did. And as one of the witnesses stated, no person could tell what a horse would have doue if the bell had been rung or the whistle had been sounded. We think there was a total failure of evidence, to prove, or evidence even tending to prove, that the injury was the result of the failure." The same judge delivering the opinion in Great Western R. R. Co. v. Geddes, 33 Ill. 304, said: "In this case the jury have found that the animal waskilled by reason of a failure to perform this duty. This, like other questions of fact was for their determination, and we are not prepared to say that such was not the case. In this appellant's failure to do what was expressly required by the statute, and while run * # * * ning the train, and with their engines, the animal was killed when they were in gross neglect of duty. And it must be held to create a liability for this injury." And to the same effect see St. L. J. & C. R. R. Co. v. Terhune, 50 Ill. 151. In C. B. & Q. R. R. Co., 64 Ill. 514. it was said: "While it is true that it is negligence in the servants of the company to omit to ring the bell or sound a whistle, when approaching a public crossing, yet the company is not neces. sarily liable for every accident that may occur where they omit this duty. It is only where the injury happens by reason of such neglect that the company may be held liable, and such is the plain meaning of the statute on this sub ject. It was said by this court in The Chicago and Rock Island Railroad Com pany v. McKean, 40 Ill. 218, that the mere omission to ring a bell or sound a whistle will not, per se, render the company liable. It must appear from facts and circumstances, at least, that the injury was occasioned by reason of such neglect. How this may be shown, cannot be stated in any general rule. It may sometimes be made to appear by showing that the party injured was himself in the exercise of due care and caution. When a person knows he is approaching a railroad crossing, by showing, if it is possible to do so, that he observed the usual and proper precaution, by looking in either direction and watching for the usual signals of danger before attempting to cross." In C. & A. R. R. Co., 63 Ill. 122, the judgment was reversed because the court below had instructed the jury that the burden of proof was upon the defendant to show that the injury to the animal could not have been averted by giving the signals. It was held that under the circumstances of the case it should have been left to the jury to determine whether the omission to give the signals caused the injury. In Steves v. The O. & S. R. R. Co., 18 N. Y. 422; it was held that the effect of the statute requiring signals at a crossing superadds a duty upon the company, the disregard of which would impose no greater or other liability than would follow from the neglect of a common law duty in respect to care in running a train. And so it was held in G. & C. U. R. R. Co., 13 Ill. 548; and in Artz v. The C. R. I. & P. R. R. Co., 34 Iowa, 153. Positive evidence that the signals were given, is entitled to more weight than the negative evidence of one who testifies that he did not hear them. C. B. & Q. R. R. Co. v. Stumpf, 55 Ill. 367; Chicago,, etc. R. R. Co. v. Still, 19 Ill. 499; Seibert v. Erie R. R. Co., 49 Barb. 583; Stitt v. Huidekopers, 17 Wall. 384. The latest reported decision of the New York Court of Appeals on this question is Coist v. The Erie Railw. Co., 58 N. Y. 637. The plaintiff's testimony tendered to show that it was most probable that the fire was caused by sparks from defendant's engines; the defendant's evidence tendered to support that theory. Plaintiff was allowed under objections to show that defendant's engines, passing along the railroad, on other occasions emitted sparks and coals, which fell further from the tract than plaintiff's barn, when the fire occurred. Held, that the evidence was properly admitted, and that to render such evidence admissible, it is not necessary that plaintiff's preliminary evidence should exclude all possibility of another origin, or that it should be undisputed. M. A. L. Supreme Court of Pennsylvania, May 10, 1875. Mrs. Harkinson sold her confectionery and its good-will, and covenanted not to engagǝ either directly or indirectly in the same business within the twenty-second ward for a period of ten years, but to endeavor to promote the business interests of her vendee. Subsequently, the vendor erected another confectionery within the ward, placed the name Harkinson over the door, and put her son in possession to prosecute the business in his own behalf. Held (reversing the judgment of the court below), that, the breach of the covenant being doubtful, and no substantial injury being shown by the covenantee, an injunction would not lie against Mrs. Harkinson to restrain her from letting her house for the purpose specified. Certiorari to the Common Pleas of Philadelphia County. This was an appeal from a final decree of the court below, enjoining Elizabeth Harkinson from permitting certain described premises in the twenty-second ward, to be used for the purpose of carrying on the business of a bakery or confectionery, for a period of ten years. The case was heard below on exceptions to the report of a Master (George Junkin), who had heard the case on bill, answer, and proof, and reported the form of a decree restraining the defendant, Harkinson, from carrying on the business. The defendant, Harkinson then appealed, assigning as error the granting of the injunction. The bill and answer raised no serious controversy as to the material facts involved, which are all succinctly stated in the opinion of the supreme court (infra). Chas. S. Pancoast, for the appellant. 1. The covenantor has not violated her agreement. The term "indirectly" in the agreement can not, by implication, restrict the covenantor from aiding her children in the prosecution of the same business. Midland Railway v. London and N. W., L. Rep. 2 Eq. 524. An agreement in restraint of trade must be limited to the person of the covenantor, and can not be extended to his property. I Sm. Lead. Cas., pt. 2, 659; Horner v. Graves, 7 Bing. 743; Morris Runn v. Barclay, 18 P. F. Smith, 173; Gompers v. Rochester, 6 P. F. Smith, 194. 2. The right to an injunction is not ex debito justitiæ, like an *From the report in " Weekly Notes of Cases " (Philia. : Kay & Bro.) action for damages at law. Wood v. Sutcliffe, 2 Sim. N. S. 42 Eng. Ch. Rep. 163; Mayor v. Comm., 7 Barr, 365; Gray v. Ohio and Pa. R. R. Co., I Gr. 412; Richards' Appeal, 7 P. F. Smith, 113; McClurg's Appeal, 8 P. F. Smith, 51. There must be an express covenant and an uncontroverted mischief arising from the breach of it. Clark's Appeal, 12 S. M. 450; Brown v. Newall, 2 My. & Cr. 570; Bonaparte v. Camden R. R., 1 Bald. Cir. C. 218; Story's Eq, ? 959 b, note 5. tween David and the appellant, but an understanding that after he should be thoroughly established in business he should pay her interest on the sum advanced; and, in case of her death, the property was to be his; but if its value was more than his share of his father's estate, he was to make payment to his brothers and sisters of the excess. He thus took and held the possession subject to an equitable adjustment with his brothers and sisters, of its relative value on the death of his mother. He has paid no rent The injunction asked for would be mandatory. Audenried v. and no interest on the investment. Upon the whole evidence the Phila. and Reading R. R., 18 Sm. 370. It would affect the rights of one not a party to this suit. mour v. McDonald, 4 Sand. Ch. Rep. 502; Barret v. Blagrave, Ves. 555. Master reported "that the business carried on at the store in ChestSey-nut Hill has been and really is the business of David Harkinson ; 5 and was and is not that of the defendant (below); and is managed and carried on by him on his own credit and with his own means, The inconvenience of enforcing a covenant by injunction is a and not by her," Nevertheless, the Master found that, by furnishgood reason for withholding it. Collins v. Plumb, 16 Ves. 454, ing the means and fitting up the establishment for her son, by (S. C.) 22 Eng. Ch. 52; Dietrichsen v. Cabburn, 2 Phil. 52; Lum-which he was enabled to engage in the business, the appellant had ley v. Wagner, 1 De Gex, M. & G. 620; Taylor v. Partington, 7 De Gex, M. & G. 328; South Wales R. R. v. Wythes, 5 De Gex, M. & G. 480; Hooper v. Brodrick, 11 Sim. 47. J. G. Johnson, contra. 1. The covenantor has violated her agreement "indirectly" by sustaining a rival establishment. Perkins v. Lyman, 9 Mass. 522. 2. A mandatory injunction may be granted upon final decree. Kerr on Inj. ?? 60, 61; 2 Red on Rail. 356; Sears v. Boston, 16 Pick. 357; Hilliard on Inj. 5, 6, 7; Audenried v. Read. R. R., 18 P. F. Smith, 370; Gale v. Abbot, 8 Jurist., N. S. 987. Damages will be presumed from breach of covenant. AttorneyGeneral v. Railway Cos., L. R. 3 Ch. Ap. 104. violated the true intent and spirit of her contract. The case of Perkins v. Lyman, 9 Mass. 522, goes far towards sustaining that conclusion. Yet that case is distinguishable from the present in this there, with an intent to violate his contract, with an intent to engage in the business from which he was excluded, he fitted up and owned a vessel for such a voyage. His design was to be interested in the business; thus throwing his knowledge, skill, and experience into competition with one, in violation of his agreement. In the present case the appellant did not erect or purpose the establishment with any intention that she would engage in the business, or be in any manner interested therein. In furtherance of her plan for aiding her children, she had substantially advanced to him his supposed share in her estate. It was invested in that par The Court.-MERCUR, J.-The first question which arises in,ticular for his benefit, and not hers. The effect was the same as if this case is this-Has the appellant violated her agreement not to engage, either directly or indirectly, in that business, the good-will of which she sold to the appellee? Her husband had owned and carried on a bakery and confectionery in the twenty-second ward in the city of Philadelphia. He devised most of his estate to the appellant absolutely, appointed her his sole executrix, and died, leaving six children. She continued the business for a time, and then sold to the appellee the establishment, together with the good-will of the business, for a gross sum, in 1868. At the same time she agreed not to engage in the same business, directly or indirectly, within the limits of the said ward, at any time within ten years from the date of said sale; but by her advice and counsel she would endeavor to encourage and promote the business interest of her vendee. During the life of her husband he had furnished one of their sons a few thousand dollars, with which he had entered into business. After the death of her husband the appellant had furnished the same son several thousand more. She had also furnished a second son with an amount somewhat larger to start him in business. In each case no obligation was demanded or given, nor had any of the money or interest thereon been repaid, nor does it appear that there was any distinct agreement of any kind for its return. she had given or loaned to him money, with a knowledge that he intended so to use it. It is certainly going very far to say that, by the general terms used in this agreement, a parent has covenanted to control the business of her son by withholding from him his share in her estate. Without deciding adversely to the conclusion of the master and court on this point, we think the case is not free from doubt. Does the appellee present a case which should move a chancellor to enjoin the appellant against permitting the premises to be used in carrying on the business in which her son is engaged? Is it a violation of such a character and to such an extent as to justify this specific remedy? We have clearly shown that the appellant personally is nowise engaged or interested in the business, otherwise than by the Master's assumed indirectness. So there is no occasion to enjoin her against doing what she has not done, and does not propose to do. Shall she turn her son out or enjoin him against pursuing his business? An attempt to do either might not be entirely successful. It must be borne in mind that agreements in restraint of trade generally are void. To give validity to them they must be limited in point of time or partial in their operation, and be supported by a sufficient consideration. Gompers v. Rochester, 6 P. F. Smith, 194. When a court of equity is called upon to enjoin a person against the free exercise of a trade, the violation of the agreement ought not to be doubtful. Hence, a merchant who, upon selling his stock in trade and business, covenants not to carry on the same business at the same place or within certain limits surrounding, and who thereupon gives up his place of busi In 1875 appellant purchased a lot at Chestnut Hill, within the said ward, near the county line, but four miles from the establishment sold to the appellee. On it she built and fitted up a house, and the other appliances suitable for a bakery and confectionery. The general plan of the house and its appliances were arranged by a third son, David, and both he and his mother took an active part in superintending the erecting and completion of the estab-ness, will not be enjoined from afterwards soliciting and procurlishment. Having put over the door the name "Harkinson," she gave to her son the possession of the establishment. He took out a license as a retail dealer, and had continued to carry on the business down to the time of the hearing before the Master. The Master found and reported that "the whole evidence shows that Mrs. Harkinson did what she had done in pursuance of a plan pursued towards her other children, and which seems to have been understood and been acquiesced in by all of them." ing orders within the specified territory, the question of whether this constitutes a breach of the covenant being regarded as too doubtful to warrant an injunction without bringing an action. High on Inj. & 74; Turner v. Evans, 2 De Gex, M. & G. 740. So when one undertakes the management of the business of a chemist, covenanting against carrying on the same business in his own name and for his own benefit, or in the name and for the benefit of any other person within a certain radius, under a specified penalty There appears to have been no specific binding agreement be-named by bond, and he afterwards solicits orders for another |