character of the obligation is concerned, no substantial difference can be found between the right to compensation for the wrongful breach of a self-imposed contract duty, and the wrongful breach of a duty imposed by law not to commit a tort. The consequent unfairness of preferring a volunteer distributee over an injured party who may have been materially impoverished by the tort is obvious.15

The court distinguishes the principal case because the wrongdoer died before the plaintiff was injured. The reasoning seems to be that, where the deceased may project his personality after death sufficiently to commit a post mortem tort, justice requires a corresponding extension to make the estate liable. The argument is re-enforced by the fact that the estate of the deceased, as administered to-day, partakes of many of the features of an entity continuing the personality of the deceased. The result, however desirable, seems hard to support on common-law principles as historically developed. If no tort is committed till after death, there is then no tortfeasor to punish. Since the common law conceives of death as extinguishing pre-existing tort liability, a fortiori the impossibility of affixing a subsequently arising liability would seem to follow. And if the wrong occurred during the tortfeasor's life, the cause of action falls within none of the anomalous common-law exceptions which survive.16

ENJOINING CRIMINAL PROSECUTIONS AGAINST THIRD PARTIES. It is clear that there are certain property interests for harm to which the law gives a remedy under some circumstances, while under other circumstances no remedy is given for reasons of policy in that it would unduly limit general freedom of action. These are surely interests recognized as rights by the law and under its protection. For equity to give a remedy for infringement of such legal rights would be, therefore, an exercise of concurrent jurisdiction as opposed to exclusive jurisdiction where equity protects interests not recognized by the law, as for example the interest of a cestui. It is submitted that equity has jurisdiction to give a remedy for infringement of such legal rights where the law gives no remedy, as well as where the law grants merely an inadequate one, and that it may exercise it if the reasons of policy preventing a legal remedy would not apply to an equitable one.

For example, suppose that a life tenant, without impeachment of waste, tears down buildings. The law gives no remedy to the remainderman for the injury to his interest, but equity will grant him an injunction. Yet the remainderman's interest is legal, and he has a legal right to have it unimpaired. This is shown by the fact that he could sue an outsider for a trespass which injured it. The truth must be,

15 See discussion, see SALMOND, TORTS, 2 ed., 65.

16 That the gravamen of the wrong is injury to the feelings seems to be considered a special ground for the abatement of the cause of action. Thus recovery was denied in a suit for breach of promise although the action is closely akin to contract. Finlay v. Chirney, 20 Q. B. D. 494.

1 Vane v. Barnard, 2 Vern. 738; Rolt v. Somerville, 2 Eq. Cas. Abr. 759, pl. 8; Aston v. Aston, I Ves. 264.

Shortle v. Terre Haute, etc. R. Co., 131 Ind. 338, 30 N. E. 1084.

therefore, that, while the law recognizes the interest, it refuses to protect it in the particular circumstance because of some policy peculiar to its forum, in this instance because the law sticks to the form of the words "without impeachment of waste," and refuses to recognize that they were inserted merely to protect the life tenant against a forfeiture of his estate and not to permit him to injure wantonly the estate of another. Another instance of this jurisdiction is where equity removes clouds upon title. For in most jurisdictions the ground of relief is not that equity is enabling the defendant to defend himself in the equitable forum because his legal defense is inadequate. It is that equity is affirmatively protecting the jus disponendi of property from injuries for which the law affords no remedy whatsoever.

An analogous situation existed in a recent case in which, however, equity refused to act. Because of threatened criminal prosecutions under a statute alleged to be unconstitutional, customers of the plaintiff, a dairy company, were deterred from shipping to it, and the railroad was afraid to accept any such shipment. Although the plaintiff had no way to test its rights at law, and its business was being destroyed, equity refused to enjoin the prosecutions. Milton Dairy Co. v. Great Northern R. Co., 144 N. W. 764 (Minn.). Since the plaintiff sought to work out his remedy via an injunction against the prosecutions, two questions are involved: first, whether equity has jurisdiction, and second, whether it will exercise it by enjoining a criminal prosecution.5 So far as the latter question is concerned, this would seem to be one of the exceptional cases where equity might grant such a remedy, since the question is entirely one of law, thus meeting the objection that the parties have a right to a jury trial; and irreparable damage to property is threatened if equity does not act. The main question is whether the injury to the plaintiff's interest is one which equity has jurisdiction to redress. The interest for which protection is asked is a business, or, in general, trade relations. This is a legal interest 7 and therefore if equity acts it will be exercising its concurrent jurisdiction. Now in the exercise of its con

3 LANGDELL, BRIEF SURVEY OF EQUITY JURISDICTION, 13 HARV. L. REV. 671. 4 Gage v. Rohrback, 56 Ill. 262; Gage v. Billings, 56 Ill. 268; Sullivan v. Finnegan, IOI Mass. 447; Clouston v. Shearer, 99 Mass. 209.

5 It is commonly said that equity will not enjoin a criminal prosecution. I HIGH ON INJUNCTIONS, 4 ed., § 68; see 23 HARV. L. REV., 469; In re Sawyer, 124 U. S. 200, 210, 211; Predigested Food Co. v. McNeal, 1 Oh. N. P. 266. It is also said equity will not enjoin the commission of a crime. Both these statements are true, broadly speaking, since equity has no jurisdiction to enjoin either a crime or a criminal prosecution as such, but if an incidental injury to property appears, the lack of jurisdiction is remedied. Clark v. Breeders' Ass'n, 85 Atl. (Md.) 503.

6 An injunction will be granted: (a) where the matter has already been adjudicated at law in a suit between the same parties, Block v. Crockett, 61 W. Va. 421, 56 S. E. 826; (b) where the main question is one of law and equity has jurisdiction because of multiplicity of suits, City of Chicago v. Collins, 175 Ill. 445, 51 N. E. 987: or irreparable injury to property is threatened, Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129, 67 S. E. 613; (c) where the prosecutions are in an inferior court from which there is no appeal, Shinkle v. City of Covington, 83 Ky. 420. These situations all present aspects of the inadequacy of the remedy at law.

7 Casey v. Cincinnati Typo. Union No. 3, 45 Fed. 135; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N. W. 13; Barr . Essex Trades Council, 53 N. J. Eq. 101, 30 Atl. 881; Tarleton v. McGauley, 1 Peake, 270.

current jurisdiction, the rule of equity is to follow the law. This means that in general it protects those rights for which a remedy is given by the law. In the principal case, however, though the law gives a remedy for such damage when caused by other means, it gives none when caused by a prosecution. But a prosecution under an unconstitutional statute is, loosely speaking, a wrong, since on theory an unconstitutional statute. does not exist and furnishes no justification for acts done under its apparent authority. The policy of the law in favor of fearless prosecution of criminals and safe and easy recourse to tribunals of justice has confined legal remedies for baseless suits within the strict limits of the action of malicious prosecution. But equity may act preventively in this instance without violating this policy of the law at all. Therefore, as the interest which is threatened is one which under many circumstances equity protects,10 it is submitted that an injunction should not be denied merely because a policy necessitated by the peculiar legal situation prevents the injury in this instance from being a technical tort.11

"A person,

VOLUNTARY AND INVOLUNTARY SALES OF GOOD WILL. not a lawyer, would not imagine that when the good will and trade of a retail shop were sold, the vendor might the next day set up a shop within a few doors and draw off all the customers." Nevertheless, in the absence of express stipulations to the contrary, this is permitted by the great weight of authority. What then is the good will which is sold? Good will may be said to be that advantage which is inherent in an established business over and above the actual property employed. It includes "the probability that the old customers will resort to the old place, ,"3 and the advantages from custom or business connection, em

8 Smith v. Adams, 27 Tex. 28.

Dodge v. Woolsey, 6 McLean (U. S.) 142, Fed. Cases 18,033; Osborn v. Bank, 9 Wheat. (U. S.) 738; Southern Express Co. v. Rose, 124 Ga. 581, 53 S. E. 185.

10

I HIGH ON INJUNCTIONS, 4 ed., § 1415e; Barr v. Essex Trades Council, supra; Brown v. Jacobs Pharmacy Co., 115 Ga. 429, 41 S. E. 553; Hawardon v. Youghiogheny & Lehigh Coal Co., 11 Wis. 545, 87 N. W. 472.

"It is often said that one cannot enjoin a suit to which he is not a party. New York v. Conn., 4 Dall. (U. S.) 1. But on many occasions such injunctions have been issued. In McCullough v. Absecom Co., 10 Atl. (N. J.) 606, the petitioner in a suit to quiet title was allowed to enjoin a partition suit pending as to the same land. In Fisher v. Lord, 9 Fed. Cases 4,821, petitioner was allowed to enjoin a suit on a note he claimed to own. In In re Walker, 123 Pa. 381, petitioner was allowed to enjoin a suit to enforce a title to stock which he claimed to own. In Sumner . Marcy, 3 Woodb. & M. (Fed.) 105, a stockholder was allowed to enjoin a judgment against the corporation which would subject him to a statutory liability.

1 Plumer, V. C., in Harrison v. Gardner, 2 Madd. 198, 219.

2 Cruttwell v. Lye, 17 Ves. 335; In re David (1899), 1 Ch. 378; Basset v. Percival, 5 Allen (Mass.) 345; Smith v. Gibbs, 44 N. H. 335; Von Bremen v. MacMonnies, 200 N. Y. 41, 93 N. E. 186; White v. Trowbridge, 216 Pa. St. 11, 64 Atl. 862; Zanturjian v. Boornazian, 25 R. I. 151,55 Atl. 199. See HOPKINS, UNFAIR TRADE, § 84; I COLLYER, PARTNERSHIP, 6 ed., 571.

3 Lord Eldon in Cruttwell v. Lye, supra, p. 346.

4 See Trego v. Hunt, [1896] A. C. 7, 19; STORY, PARTNERSHIP, § 99; ALLEN, GOOD WILL, 8.

6

bracing trade marks and trade names.5 In this sense good will is property and is assignable. Good will also refers to the reputation and the friendliness of the public enjoyed by the particular man himself. This is by nature unassignable. The vendee can partially get the advantage of it if by contract he induces the vendor to endeavor to create by recommendation a new friendliness toward him on the part of the public. In the absence of this sort of agreement it is obviously to the advantage of the assignee that this personal good will of the vendor be removed from the field of competition. But the vendor is free to re-enter the trade unless there can be found some personal obligation, either express or implied from the transaction, not to compete. For if it is clear that there is no such personal obligation, the vendor, having given up all connection with the property, becomes justified like a third party 7 in interfering by competition. So in a forced dissolution of a partnership or a sale by a trustee in bankruptcy, where there can be merely a sale of the property and no further personal obligations, the vendor is properly allowed to re-enter business. The early cases were of this sort; but no distinction was taken later in the case of voluntary sales,1o although, on analogy to warranties," a contract obligation incidental to the transfer might well have been implied from the natural imputation of the vendor's retirement.12 With the exception of a few desultory cases, 13 the Massachusetts courts have been alone in thus implying an obligation not to enter and compete in the same trade.14

Hudson v. Osborne, 39 L. J. Ch. 79; Levy v. Walker, 10 Ch. D. 436; Merry v. Hoopes, 111 N. Y. 415.

The assignment of a business takes this property good will with it without express reference.

7 Snowden v. Noah, 1 Hopk. Ch. (N. Y.) 347.

8 The vendor may not resort to unfair competition such as claiming to be the successor of the business he has sold, Hall's Appeal, 60 Pa. St. 458; Cottrell v. Babcock, 54 Conn. 122, 6 Atl. 791; Hookham v. Pottage, L. R. 8 Ch. 91; or using his name in such a manner as to deceive, Churton v. Douglas, Johnson, 174; Myers v. Kalamazoo Buggy Co., 54 Mich. 215, 20 N. W. 545. But in the absence of unfairness he may use his own name. Ranft v. Reimers, 200 Ill. 386, 65 N. E. 720; White v. Trowbridge, supra; LINDLEY, PARTNERSHIP, 8 ed., 509.

Cruttwell v. Lye, supra; Cook v. Collingridge, 27 Beav. 456; Hall v. Barrows, 4 DeG. J. & S. 150; Dayton v. Wilkes, 17 How. Pr. (N. Y.) 510. This was fair to the purchaser, as he was given notice in fixing the price that the former owner could compete. Cook v. Collingridge, supra; Hall v. Barrows, supra.

10 See cases in Note 2, supra.

11 See Dwight v. Hamilton, 113 Mass. 175, 177. Even where there is an express warranty of good will, however, the vendor is allowed to start business again. Costello v. Eddy, 12 N. Y. Supp. 236.

12 See Trego v. Hunt, supra, pp. 19, 24; Hutchinson v. Nay, 187 Mass. 262, 72 N. E. 974. Unlimited restraint of trade has been advanced ex post facto as a reason for not implying a covenant not to compete. Trego v. Hunt, supra, pp. 27, 29. But where an express covenant not to re-enter business is too broad to be entirely enforcible, it is nevertheless held valid within reasonable limits. Althen v. Vreeland, 36 Atl. 479 (N. J.). As an implied covenant could be treated in the same way, there is no weight to this objection.

13 Wentzell v. Barbin, 189 Pa. St. 502, 42 Atl. 44; Brown v. Benziger, 118 Md. 29, 84 Atl. 79. See Townsend v. Hurst, 37 Miss. 679; Yeakley v. Gaston, 111 S. W. 768 (Tex. Civ. App.).

14 Dwight v. Hamilton, supra; Munsey v. Butterfield, 133 Mass. 492; Old Corner Book Store v. Upham, 194 Mass. 101, 80 N. E. 228; Foss v. Roby, 195 Mass. 292, 81 N. E. 199; Gordon v. Knott, 199 Mass. 173, 85 N. E. 184; Marshall Engine Co. v.

A limitation to the acknowledged right to competition was laid down by Lord Romilly. Admitting that a vendor after a sale of good will may solicit business generally by advertisement, 15 he decided that a voluntary sale of good will implied a promise not to solicit the old customers directly.16 This case gave rise to a variety of opinions in England 17 and was overruled,18 but finally the English law was again settled in accord with Lord Romilly.19 In the meantime some American authority had followed the contrary case,20 but the better authority now so restricts a voluntary vendor." It would seem that the reasons underlying the implication of a promise not to solicit old customers would logically cover a promise not to compete in other ways. But because the courts, except Massachusetts, were previously bound to the wrong rule as to re-entering business, seems no reason for sacrificing justice in a situation where the question raised was res integra.

23

The courts which have thus denied the right of solicitation after a voluntary sale have nevertheless allowed the vendor free rein after an involuntary sale.22 The policy of the Bankruptcy statute has been given as the reason.2 As some of the cases, however, are of forced sales other than in bankruptcy, the true reason must be that the courts recognize that there can be no implied promise of any kind when the sale is involuntary or when the vendor is not a contracting party.

An interesting case came up in England, where good will was sold by the assignee of a voluntary assignment for the benefit of creditors. It was held that the assignor might again solicit his former customers. Green & Sons v. Morris, Weekly Notes 65 (Ch. Div., Feb. 6, 1914). While the courts sometimes have gone rather far in implying an obliga

New Marshall Engine Co., 203 Mass. 410, 89 N. E. 548. But see Fairfield v. Lowry, 207 Mass. 352, 93 N. E. 598.

15 Cruttwell v. Lye, supra.

16 Labouchere v. Dawson, L. R. 13 Eq. 322.

17 Ginesi v. Cooper, 14 Ch. D. 596; Leggott v. Barrett, 15 Ch. D. 306; Mogford v. Courtenay, 45 L. T. R. 303.

18 Pearson v. Pearson, 27 Ch. D. 145.

19 Trego v. Hunt, supra. This rule extends even to soliciting those who have voluntarily come back. Curl Bros. v. Webster, [1904] 1 Ch. 685. There is much talk in the books that the vendor cannot solicit because it would be derogating from his grant." This reasoning is circular, for the question at issue is: what has been granted?

20 Cottrell v. Babcock, supra; Williams v. Farrand, 88 Mich. 473, 50 N. W. 446; Marcus Ward & Co. v. Ward, 15 N. Y. Supp. 913. Other American decisions allowing the vendor to solicit but not depending directly on Pearson v. Pearson, supra, are Bergamini v. Bastian, 35 La. Ann. 60; MacMartin v. Stevens, 37 Wash. 616, 79 Pac. 1099. Where the contract expressly allowed the vendor to re-enter business at the end of a certain period, the right to solicit has been implied. Hanna v. Andrews, 50 Ia. 462; Armstrong v. Bitner, 71 Md. 118, 17 Atl. 1054, 20 Atl. 136.

21 Ranft v. Reimers, supra; Brown v. Benziger, supra; Gordon v. Knott, supra; Snyder Pasteurized Milk Co. v. Burton, 80 N. J. Eq. 185, 83 Atl. 907; Von Bremen . MacMonnies, supra; Zanturjian v. Boornazian, supra. Likewise the vendor cannot solicit the return of his old employees, Acker, Merrill & Condit Co. v. McGaw, 144 Fed. 864, nor obtain his former telephone, Ranft v. Reimers, supra; Brown v. Benziger, supra.

22 Walker v. Mottram, 19 Ch. D. 355; Dawson v. Beeson, 22 Ch. D. 504; Hutchinson v. Nay, supra, Griffith v. Kirley, 189 Mass. 522, 76 N. E. 201; Kates v. Bok, 124 N. Y. Supp. 297.

23 See Walker v. Mottram, supra, p. 364.