a bribe as an inducement to him to shew favour, or forbear to shew disfavour, to any person towards whom an impartial discharge of the officer's duty demands that he should shew no favour; and it is also a misdemeanour at common law for such an officer to conspire with others that he shall receive such a bribe, and that a colonel in command of a regiment in His Majesty's army is a ministerial officer within the meaning of the rule. One more case in the December Law Reports calls for special mention, namely, Goldsoll v. Goldman.s Here we get a learned judge (Neville, J.), criticizing certain firmly established principles of the law relating to contracts in restraint of trade, as contrary to sound principle, and mischievous, and boldly advocating legislative intervention. After holding that the true proposition of law on the cases, is not that "covenants which restrain trade to an unreasonable extent are void,"-but that "covenants in restraint of trade are void with an exception in favour of covenants which do not restrain it to an unreasonable extent," he holds that both the exception itself is contrary to sound principle, and also the rule which takes the protection of the covenantee as the test of whether the excluded area be, or be not, unreasonably large; while he further declares that the doctrine of severability of the terms of a contract in restraint of trade has proved mischievous. He says that contracts in restraint of trade were held to be contrary to public policy because it was considered to be in the interest of the community that every man should be entitled to carry on his lawful business, or exercise his lawful calling, without restraint. But when contracts are treated as contrary to public policy it is because their tendency is injurious, and in such cases it has not been the practice of the Courts to examine the circumstances of each case which offends against the rule and consider whether substantial injury to the public interest has arisen, or is likely to arise, from the contract under consideration. The infringement of the rule has been considered fatal to the contract although it might be capable of proof that under the particular contract no injury to the public could arise. But the origin of the above exception to the general rule that contracts in restraint of trade are void, arose from the consideration that the community was not '[1914] 2 Ch. 603. VOL. XXXV. C.L.T.-12 The interested in the question where a man exercised his calling; and, therefore, if abundant opportunity for so doing were left, the community was not injuriously affected by a man contracting not to do so within a limited area; but it was held unreasonable that a man should be prevented from exercising his calling even in a limited area if no advantage thereby accrued to the other party to the contract. departure from principle, says Neville, J., becomes more startlingly apparent in that, at any rate since the decision of Rousillon v. Rousillon, the only test of the legal permissibility of the restriction has been whether it goes beyond what is reasonably required for the protection of the covenantee. "If so, it is void; if not, is is good whatever the result may be to the public and the covenantor. I confess this seems to me a strange inversion of the original rule which, so far from considering only the convenience of the covenantee, regarded only the mischief occasioned to the public by hindering a man from making his living and adding to the wealth of the State by the exercise of his calling." The consequence of this doctrine was that in the famous case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co.,10 "a man of genius was restrained from turning his special talents to account in any country in any part of the world, and as the result of the, to my mind, curious process of reasoning in the cases to which I have in general terms referred, this was held to be no injury to the public." The learned judge however admits that the decisions are two precise and numerous to permit of any reconsideration by the Courts, but, he says: "In my humble opinion, the whole of the law in this particular matter is a blot upon what I consider to be, in other respects, an admirable system of jurisprudence. During my connection with the law I have seen more undeserved suffering inflicted by this branch of it than by all the rest put together. I am aware that the question is a thorny one, but there are two comparatively small amendments of the law which I think would go far to remedy what at present I consider its harshness. Men in want of employment, or, to a less degree, in want of money, are very likely to be induced to sign any document to get it, and there are cases where men on a few shillings a week, for which they give ample consideration in other ways, are induced to sign contracts which make it exceedingly difficult for them to obtain employment elsewhere; and I think it might well be left to the discretion of the Court to refuse an injunction in cases which it considers harsh. In most of such cases the damage caused by the breach of contract is either nil or quite inconsiderable." Then as to the doctrine of severability of the terms of a contract in restraint of trade, Neville, J. says: "It seems to me to be in accordance both with principle and justice that if a man seeks to restrain another from exercising his lawful calling to an extent which the law, even as it now stands, deems unreasonable, the contract by which he does so, whether grammatically severable or not, should be held void in toto. To hold otherwise seems to me to expose the covenantor to the almost inevitable risk of litigation which in nine cases out of ten he is very ill able to afford, should he venture to act upon his own opinion as to how far the restraint upon him would be held by the Court to be reasonable; while it may give the covenantee the full benefit of unreasonable provisions if the covenantor is unable to face litigation." As we understand the learned judge he means that covenants in restraint of trade should be held void in all cases, or, at any rate, if injurious, in fact, to the public, whether the interest of the covenantee requires such restriction or not; and that even if a restriction of this kind is not void for such reason, the Court should have a discretion to refuse an injunction if, under the circumstances, it is harsh to the covenantor; and that the terms of a contract is restraint of trade should under no circumstances be severable. We respectfully commend the judgment to the attention of the Ontario legislature. The actual points decided in the case were that the covenant in question was not too wide, and that it was severable, and that damages are essential to the right of action which a covenantee has against one who induces his covenantor to break his covenant; but that in a case where the breach which has been procured would in the ordinary course inflict damage in the plaintiff, the plaintiff may succeed without proof of particular damage. A. H. F. L. CANADIAN DECISIONS. In the course of the trial of Krafchenko, who, it will be remembered, was indicted for the murder of the Manager of the Bank of Montreal at Plum Coulee, in Manitoba, and subsequently found guilty, an important point in criminal procedure was raised. At the conclusion of the Crown's case counsel for the defence called certain witnesses for the purpose of establishing an alibi. He then asked that the prisoner be permitted to make an unsworn statement from the dock, instead of giving evidence on his own behalf. This was opposed by the Crown. Mathers, C.J.K.B., took time to consider, and consulted the Chief Justice of the Court of Appeal, who agreed with him that since the passage of the Canada Evidence Act permitting an accused person to give evidence on his own behalf the right to make an unsworn statement no longer existed. The request was consequently refused; and the prisoner elected not to give evidence. There were dicta in favour of the contrary view in Rex v. Aho1; but after a careful review of the authorities the learned Chief Justice came to the conclusion that since prisoners have now the right to tell their story on oath the reason for making an unsworn statement has been removed. Rex v. Krafchenko.2 There has recently been reported," a decision of the appeal Court of Quebec in an action of Girard v. Brunelle. The plaintiff sued for an alleged libed in La Verité, in which paper had appeared a statement to the effect that the plaintiff, who was an author, was connected with free masonry (affilié à la franc maconnerie.) He pleaded that the article was libellous and untrue and published for the purpose of injuring him in his work as author, and disgracing him in the eyes of his fellow-citizens; and alleged that this insinuation published in a Catholic community caused him an irreparable injury. The defendants pleaded justification, newspaper privilege, and fair comment on the literary work of the plaintiff. The Trial Court gave judgment against the defendant for $1,000. On appeal this was reduced to $500; and on a further appeal to the Court of King's Bench 18 Can. C. C. 453. 2 2 (1914) 28 W. L. R. 76: 24 M. L. R. 652. (Archambeault, Lavergne, Cross, Carroll & Gervais, JJ.) this judgment was affirmed. The headnote runs in part "Publication in a newspaper of an article tending to malign (diffamer) an author and to make it appear that he is connected with free masonry is, in a district in which the mass of the citizens are catholic (dans un centre de population catholique), a libel. The right of literary criticism does not justify attacks on the character or the person of the writer." The Innkeeper's Act, R. S. O. 1914, c. 173, gives certain rights to and confers certain remedies on innkeepers, and boarding-house and lodging-house keepers. A recent judgment of the Appellate Division of Ontario, United Typewriter Co. V. King Edward Hotel Co., serves as a useful reminder that the Act is not a codification of the law relating to the lien of innkeepers; and that innkeepers have certain common law rights which must be sought outside the statute. S. 3 (1) of the Act reads: "Every innkeeper, boardinghouse keeper and lodging-house keeper shall have a lien on the baggage and property of his guest, boarder or lodger for the value or price of any food or accommodation furnished to him or on his account." The Act says nothing about a lien on goods in the guest's possession not his property. In this case a guest had brought to the defendant Company's hotel a typewriter the property of the plaintiff Company. The question was whether the common law right of the innkeeper to retain the chattel was limited by the Act. It was held that while under the Act a lodging-house or boarding-house keeper had a lien only on the property of the guest, the rights of the innkeeper were not limited to those expressed in the Act, as the statute was not intended, nor did it purport, to be a codification of the common law; and consequently the defendant Company could retain the plaintiff's property. The case of Seiler v. Funk, raises a novel point, and the names are such as Dickens might have used had he described for us in addition to Bardell v. Pickwick, a second case of breach of promise to marry. Here the defendant, doubtless actuated by that desire to reform which impels many of her sisters to demand the suffrage and makes them a crusading force to be reckoned with, agreed to marry the plaintiff, but ' (1914), 32 O. L. R. 127. (1914) 32 O. L. R. 99. |