this kind to grant an injunction, and leaves the aggrieved party to such remedy as he may have apart from the extraordinary remedy of an injunction. I am assuming that the defendant either has broken his agreement, or intends to do so if he can. I assume that he is wrong, but I say, assuming that, the remedy is not that which the plaintiffs claim, i. e. by injunction, but by damages when the agreement is broken.

KAY, L. J. I think, with great deference to the learned judge of the court below, that he has been rather carried away by his desire to do justice, and to prevent what he seems to have regarded as a wrong contemplated by the defendant in this case, and he has not given quite sufficient consideration to the difficulty which this court always feels when it is asked to interfere by injunction in order to perform part of a contract, the whole of which it could not perform if the suit had been for specific performance. The facts have been very explicitly stated by Lord Justice LINDLEY, and I will not repeat them.

The truth is that this contract contained no negative term whatever. It contained only a term that the defendant should, while he was manager for the plaintiffs, for a certain period of 10 years, give them the whole of his time. (I am not giving the very words, but that is the substance of it.) Now, what the plaintiffs are seeking to do is, not really to obtain specific performance of that term; they do not want to prevent, by any order of this court, his employing part of his time for some other purpose; but they apprehend that he is about to employ part of that time which should be occupied by him in the management of their business in founding a company to carry on a rival business, and acting as a director of that company; and they want the injunction, not because he is taking away part of his time from their service, but because they apprehend that the time which he is so taking away is going to be employed in carrying on a rival business, to their detriment.

That is quite plain if we look to the writ in this action. [His lordship referred to the writ, and continued:] Therefore what they have tried to do is this: to prevent his setting up a rival business, by obtaining the assistance of the court for specific performance of that part of the agreement which expresses that he shall give the whole of his time to their business. There are two answers to the case they make. One is this: that the defendant never has contracted in any way that he will not set up a rival business. He has not contracted that he will not become a director of a rival company, nor that he will not form a rival company; and if he does it out of business hours, it is, as I understand, admitted that no injunction ought to be granted against him.

Now, first of all, let me consider whether the court has ever gone so far as to grant such an injunction as the learned judge has granted in this case. I am aware of no case in which it has done anything of the kind. The nearest are the cases of Montague v. Flockton, L. R.

16 Eq. 189, and Webster v. Dillon, 3 Jur. (N. S.) 432. Of these, Webster v. Dillon was a case which was not argued. It was an ex parte injunction, for the defendant was not represented at all; and it seems to have passed without any argument or discussion of the authorities whatever. In Montague v. Flockton, Malins, V. C., gave a considered judgment, and he certainly did, although there was no negative clause in the agreement, restrain an actor, who had contracted to act for the plaintiff, from acting for another person during the term for which he had contracted so to act for the plaintiff. But it is quite plain to my mind that the whole judgment proceeded upon some misapprehension of the decision of Lord St. Leonards in the well-known case of Lumley v. Wagner, 1 De Gex, M. & G. 604, because Malins, V. C., says this (L. R. 16 Eq. 198): "I certainly am under the impression that in the case of Lumley v. Wagner, if there had been no negative stipulation, the court would have interfered; and I gather this particularly from the passage in Lord St. Leonards' judgment where he says: "The agreement to sing for the plaintiff during three months at his theatre, and during that time not to sing for anybody else, is not a correlative contract. It is, in effect, one contract; and though, beyond all doubt, this court could not interfere to enforce. the specific performance of the whole of this contract, yet, in all sound construction, and according to the true spirit of the agreement, the engagement to perform for three months at one theatre must necessarily exclude the right to perform at the same time at another theatre.'

And something more may be added to the same effect from the judgment in Lumley v. Wagner, 1 De Gex, M. & G. 604, for Lord St. Leonards is reported to have said (Id. 618, 622): "I am of opinion that if she had attempted, even in the absence of any negative stipulation, to perform at another theatre, she would have broken the spirit and true meaning of the contract as much as she would now do with reference to the contract into which she had actually entered." But the vice chancellor omitted to observe that further on Lord St. Leonards, after considering the cases of Clarke v. Price, 2 Wills. C. C. 157, and Morris v. Colman, 18 Ves. 437, says expressly: "I may at once declare that, if I had only to deal with the affirmative covenant of the defendant J. Wagner, that she would perform at Her Majesty's Theatre, I should not have granted any injunction."

That case, certainly at the time it was decided, was understood to have carried the power of the court of chancery in granting injunctions to the extreme limit to which it could go. The contract there was one which the court could not specifically perform. It could not compel Miss Wagner to sing. Lord St. Leonards distinctly disclaims any power in the court of equity to do anything of the kind. He makes it clear that he granted the injunction upon the express agreement on her part that she would not during a certain time sing for anybody else, and that, if those negative words had not been there,

he could not have granted, the injunction. He says so in so many words. I quite agree that there have been cases (there are very few, and De Mattos v. Gibson, 4 De Gex & J. 276, is perhaps the most striking of them) in which there have been injunctions granted although there were negative words.

The decision in De Mattos v. Gibson was, as stated in the headnote to the report: "The court will not affirmatively enforce a charter. party, but it is implied in such a contract that, if the charterer provides a cargo, the ship shall not be employed for any other purpose; and a mortgagee, with notice of a prior charter party effected with the mortgagor, will be in general restrained from doing anything to prevent its performance." There was a charter party with the absence of any negative covenant, and the court, although it felt the difficulty of granting specific performance of the charter party, did go so far as to say that an injunction could be granted to prevent the use of the ship, during the time which was covered by the charter party, for other purposes. It is possible that there may be other cases, but those cases are very rare. They are certainly to be followed with extreme caution, and I do not know with the exception of the two cases of Webster v. Dillon, 3 Jur. (N. S.) 432, and Montague v. Flockton, L. R. 16 Eq. 189, of any case whatever in which that very extraordinary jurisdiction of granting a partial specific performance by way of injunction, where the court could not enforce the whole of the contract, has ever been exercised in the case of hired servants.

However, what strikes me in this case is that, if the court could possibly interfere in the way in which the learned judge has interfered, -by injunction,-I do not see any contract of hiring and service in which it ought not also to interfere. To take the most simple and ordinary case of a man's domestic servant, his butler (which was one of the cases put by way of illustration in one of the judgments referred to), who has contracted to give the whole of his time to his master's service. Could it possibly be argued that an injunction could be obtained to prevent his serving some one else during that engagement? Yet, if a negative is to be implied, I do not see any case whatever in which it could be more clearly implied than in a case of that kind.

We must tread with great caution such a path as that which this application invites us to pursue; and, as I think this case goes very far beyond any case which has been decided with consideration up to this time, I certainly am very strongly disinclined to support this decision. I am all the more disinclined to support it because one cannot help seeing that the mode in which this injunction is granted is really the only mode in which the court could possibly have granted such an injunction. The court has implied a negative in the contract to give the whole of his time, and has therefore granted an injunction to prevent his giving any of his time to any other purpose. It is not really wanted, bona fide, for that purpose, but is wanted to prevent him from

setting up a rival business, which he has not contracted not to do. I therefore think that this decision must be reversed, and the appeal allowed.

(Supreme Court of Michigan, 1890. 81 Mich. 332, 45 N. W. 1004.)

LONG, J. The bill was filed in this cause for an injunction to restrain the defendant from cutting and removing any of the timber or trees standing or growing upon the premises described in the bill, and from committing or permitting any waste of said prem

ises.

The bill alleges that complainant is the owner in fee of the premises, containing about 160 acres subject to a life-estate in the defendant. That the complainant derived his title through a sheriff's deed, upon an execution sale to satisfy a judgment against Seth H. Felt. That said Seth H. Felt derived his title through a deed made and executed to him by the defendant, Horatio O. Felt, and his wife. That at about the time of conveyance of said premises to Seth H. Felt he made, executed, and delivered a lease in writing to Horatio O. Felt and wife. This lease is set out in full in the record. The bill also alleges that said Horatio O. Felt is in actual possession and occupancy of the premises under and by virtue of said lease, and that his wife is now deceased. That upon about nine acres of said premises is growing and standing a large amount of valuable oak and other timber, fit for sawing and lumbering purposes, and that said timber constitutes a large portion of the value of said premises. The bill then states: "Your orator further shows that the said Horatio O. Felt has caused to be cut, and is causing to be cut, and is cutting, lumbering, and removing from said premises, a large portion of said timber and trees growing thereon, and threatens to continue so to do, and has already cut about five acres of said timber. Your orator further shows that thereby the said Horatio O. Felt is committing waste upon said premises and irreparable injury thereto, and materially lessening the value thereof. Your orator further shows that if the said Horatio O. Felt is permitted to continue to cut down said timber and lumber, and commit waste upon said premises, as aforesaid, and is not restrained from so doing by an order and injunction of this

honorable court, the value thereof will be depreciated to the amount of at least five hundred dollars. And your orator further shows that said cutting and removing of said timber and said lumber upon said premises by said Felt has been and is being done without the authority or consent of your orator, and against his wishes and direction thereon, and without any authority or right in said Felt so to do. All of which actings and doings of the said Horatio O. Felt, who is made defendant herein, are contrary to equity and good conscience, and tend to the manifest wrong, injury, and oppression of your orator."

The lease set out in the bill of complaint was executed before the complainant derived his title under the sheriff's deed, and contains the following clause: "To have and to hold the said demised premises, with the appurtenances, unto the said parties of the second part, their executors, administrators, and assigns, for and during and until the full end and term of their natural lives, so long as either of them shall live, yielding and paying therefor, during the continuance of the lease, unto the said party of the first part, nothing; this lease being given in consideration of the second parties having conveyed the premises herein described to the first party, and under no consideration whatever are the second parties to be removed from the possession of the said premises except as they shall voluntarily surrender their rights under this lease. And it is expressly understood that the second parties are to have as full and complete control of said premises, while they or either of them shall live, as though such conveyance had not been made."

A general demurrer was filed, and on the hearing in the court below was overruled, and decree entered for complainant making the injunction perpetual. Defendant appeals.

The claim of counsel for the complainant is that on the premises there are only about nine acres of growing timber; that this timber is needed for the use of the farm, and its destruction makes a case of actionable waste, to be restrained by injunction. The rights of the parties must be determined by the construction given to these clauses in the lease above quoted. The title to the premises was in defendant, Horatio O. Felt. When he and his wife deeded the same, they took back this lease, by the terms of which they were to have and to hold the premises "for and during and until the full end and term of their natural lives, so long as either of them shall live, yielding and paying * * nothing."

The consideration was the conveyance of the premises to Seth H. Felt. It is further provided in the lease that the lessees are not to be removed from the premises on any consideration whatever, except as they might voluntarily surrender their rights under the lease. Then follows the clause which it is claimed gives the defendant the right to take the timber in question. "And it is ex