or difficulties which it leaves behind. * * * We are not at liberty to dispense with any of the conditions or requirements of the treaty, or to take away any qualification or integral part of any stipulation upon any motion of equity or general convenience or essential justice. The terms which the parties have chosen to fix, the forms which they have prescribed, and the circumstances under which they are to have operation, rest in the exclusive discretion of the contracting parties. * ** We can as little dispense with forms as with substance." What is sometimes called "judge-made" law has no application to treaties between sovereign nations.

·

The general rule for the construction of treaties is that furnished by the established sense of their words, unless the treaties themselves expressly define some of the words in a different sense. Mr. Justice Daniel, in United States v. D'Auterive, 10 How. 609, said: 'Compacts between governments or nations, like those between individuals, should be interpreted according to the natural, fair and received acceptation of the terms in which they are expressed.' This rule of common sense is alike applicable to all contracts, whether under municipal or international law. The rule rests upon the assumption that the contracting parties understood at the time of the contract the received sense of the words they employed, and that they meant to make their stipulation with each other according to this sense. This is the sense which it is the duty of courts to enforce, unless a different sense is expressly stated in respect to some word or words that may be used.

Courts, in applying treaties to specific cases, are to assume that nations, in making contracts with each other, intend to act in good faith, and hence that they never intend to authorize or protect fraudulent transactions under the color of these treaties. Mr. Justice Story, in The United States v. The Amistad, 15 Pet. 518, observed: "In the solemn treaties between nations it is never to be assumed that either State intends to provide the means of perpetrating or protecting frauds; but all provisions are to be construed as intended to be applied to bona fide transactions." When a fraud is attempted under the color and protection of a treaty, it is, as remarked by the learned justice, "the duty of our courts to strip off the disguise and look at the case according to its naked realities." This is precisely what was done by the court in the case of The Amistad.

5. Rights of property acquired and vested under treaties are not divested by their termination, even by

war.

Mr. Justice Washington, in The Society, etc., v. New Haven, 8 Wheat. 464, stated this doctrine as follows: "The termination of a treaty cannot divest rights of property already vested under it. If real estate be purchased or secured under a treaty it would be most mischievous to admit that the extinguishment of the treaty extinguished the right of such estate. In truth, it no more affects such rights than the repeal of a municipal law affects rights acquired under it. ** * We think, therefore, that treaties stipulating for permanent rights and general engagements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are at most only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation on the return of peace.'

It was held by the United States Court of Claims, in Meade v. The United States, 2 Ct. of Cl. 224, that the United States may take private property for public use by the terms of a treaty, or may release the choses in action of American citizens to a foreign government, making, of course, "just compensation " for the same. This, however, would not be a case in which rights of property vested under a treaty are divested by its ter

mination, but simply a case in which they are thus divested by the treaty itself, subject to the constitutional requirement that a “just compensation" must be made.

6. Treaties, regarded simply as contracts between the governments making them, take effect at and from the date of their signature, unless they otherwise stipulate; but considered as laws affecting the rights of citizens of the United States, they do not take effect until ratified and proclaimed. The first of these propositions was affirmed by the Supreme Court of the United States in Davis v. The Police Jury of Concordia, 9 How. 280, and both were affirmed in The United States v. Arredondo, 6 Pet. 691. Both were again affirmed in Haver v. Yaker, 9 Wall. 32, in which Mr. Justice Swayne said: "It is undoubtedly true, as a principle of international law, that, as respects the rights of either government under it, a treaty is considered as concluded and binding from the date of its signature. In this regard the exchange of ratifications has a retroactive effect, coufirming the treaty from its date. But a different rule prevails when the treaty operates on individual rights. * * * As the individual citizen on whose rights it operates has no means of knowing any thing of it while before the Senate, it would be wrong in principle to hold him bound by it, as the law of the land, until it was ratified and proclaimed. And to construe the law, so as to make the ratification of the treaty relate back to its signing, thereby divesting a title already vested, would be manifestly unjust and cannot be sanctioned." This relates to a treaty considered simply as a law, and, as such, affecting private rights. It fixes the date at which a treaty becomes operative as a law. The reason for the rule lies in its obvious justice. Until ratified and proclaimed, a treaty has no form of publicity of which the private citizen can take notice; and to bind him by it as a law, without any publicity, would be manifestly wrong and might work serious injustice to his rights.

7. The competency of the contracting parties to make a treaty is not a question into which courts can inquire as a condition precedent to regarding it as a law. The President, with the consent of the Senate, is constitutionally competent to make a treaty; and as to the treaty-making competency of the party with whom the treaty is made, they are the sole judges. It is the duty of courts to accept their decision as final, and apply the treaty as they find it. The question is not judicial, but political, and belongs to the treatymaking power.

Chief Justice Taney, in Doe v. Braden, 16 How. 635, remarked that a treaty made by the President, with the approval of the Senate, is "a law made by the proper authority," and that "courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States." He added: "It would be impossible for the executive department of the Government to conduct our foreign relations with any advantage to the country, and to fulfill the duties which the Constitution has imposed upon it, if every court in the country was authorized to inquire and decide whether the person who ratified the treaty in behalf of the foreign nation had power, by its constitution and laws, to make the engagements into which he entered."

In Fellows v. Blacksmith, 19 How. 366, an objection was made to a treaty with a certain tribe of Indians, on the ground that the chiefs and head-men were not represented in the negotiations: and to it Mr. Justice Nelson replied as follows: "But the answer to this is, that the treaty, after executed and ratified by the proper authorities of the Government, becomes the supreme law of the land; and the courts can no more go behind it for the purpose of annulling its effect aud operation, than they can behind an act of Congress."

The President, with the advice and consent of the Senate, having exercised the power vested in him by the Constitution in making a treaty, the treaty itself, if constitutional, and if it does not require legislation for its execution, is ipso facto a law for the government of courts. Their business is to apply it without any attempt to review the action of the President in making it.

8. Treaties that require no legislation on the part of Congress to carry them into effect have the character of supreme laws when ratified and proclaimed; but if they require such legislation for their execution, then they are not a rule for courts until the necessary legislation has been supplied. Chief Justice Marshall, in Foster v. Neilson, 2 Pet. 253, having adverted to the fact that "the Constitution declares a treaty to be the law of the land," proceeded to say: "It is, consequently, to be regarded in courts of justice as equivalent to an act of the Legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of a stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department, and the Legislature must execute the contract before it can become a rule for the court." The same doctrine was stated by Mr. Justice McLean, in Turner v. The American Baptist Missionary Union, 5 McLean, 344.

Whether then a treaty is of itself a law of the land or not depends, according to these authorities, upon its character and this is to be determined by examining the terms in which it is expressed. If by its terms it is an executed contract, acting proprio vigore upon the subject-matter involved, then it is a part of the law of the land, and as such, is to be applied by courts in the absence of any legislation to give it effect. If, however, the treaty is simply an executory contract, pledging the faith of the Government to do certain things in futuro, the doing of which requires legislative action, then it is not a law of the land for the purposes of judicial administration until the requisite legislation shall have been furnished. If, for example, the stipulation be for the payment of money by the United States, then it is not operative as a law until Congress legislatively appropriates the money.

In Foster v. Neilson, supra, it was held that the eighth article of the treaty of 1818, between Spain and the United States was simply an executory contract, not acting directly upon the subject-matter referred to, but pledging action on the part of Congress, and, hence, that until this action should be had, the court was "not at liberty to disregard the existing laws on the subject." The article, until such action, was not a rule for courts; that is to say, it was not a law, because it was addressed to the legislative branch of the Government, and needed legislation to make it operative as a law.

be a part of "the supreme law of the land," and hence, that this treaty enabled "British creditors to recover debts previously contracted to them by our citizens, notwithstanding the payment of the debts into a State treasury had been made during the war under a State law of sequestration."

The principle involved and asserted in this case is that the treaties of the United States are, as laws of the land, paramount to all the forms of State authority, and hence, that the latter are null and void, so far as they are in conflict with the former. "A treaty," said Mr. Justice Chase, "cannot be the supreme law of the land- that is, of all the United States if any act of a State Legislature can stand in its way."" "The treaty," said Mr. Justice Wilson, "is sufficient to remove every impediment founded on the law of Virginia." "The treaty then as to the point in question," said Mr. Justice Cushing, "is of equal force with the Constitution itself."

This early decision as to the paramount authority of treaties, when compared with State constitutions and laws has become the settled doctrine of American courts Owings v. Norwood's Lessee, 5 Cranch, 344; Fairfax's Devisee v. Hunter's Lessee, 7 id. 603; Gordon's Lessee v. Halliday, 1 Wash. 291; and Fisher v. Harden, 1 Paine, 55. The Constitution admits of no doubt on this subject. It is the duty of all State judges to regard the treaties of the United States as supreme laws, and the same duty is devolved on the National judiciary. If the former fail to do so there is a remedy for the failure in the powers of the latter.

10. The constitutional validity of treaties, considered as municipal laws, is a question which courts, with proper cases before them, are authorized to consider and determine. It is supposable that the President might, with the advice and consent of the Senate, make an unconstitutional treaty, and should this be the fact, the treaty would furnish no rule for the guidance of a court. The judiciary is as much bound by the Constitution when called upon to give effect to treaties as laws, as it is when giving effect to the laws of Congress. The Constitution itself is in all cases the paramount authority, and no law in conflict with the Constitution can bind any court, whether State or National. This doctrine was fully considered in the case of Marbury v. Madison, 1 Cranch, 137, and has been repeatedly affirmed by the Supreme Court of the United States in subsequent cases.

In Doe v. Braden, 16 How. 635, Chief Justice Taney, after referring to treaties as supreme laws, proceeded to say: "The treaty is, therefore, a law made by the proper authority, and courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States." This implies that a treaty may be exposed to this objection, and indirectly asserts that such a treaty should not by courts be regarded as a law. So, also, in The Chero

said: "It need hardly be said that a treaty cannot change the Constitution, or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government."

Section 709 of the Revised Statutes of the United States provides that "a final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty," of the United States, "and the decision is against " its "validity," "may be re-examined and reversed or affirmed in the Supreme Court upon a writ of error." This supposes that a State court may decide against the validity of a treaty, as a rule of guidance in the case pending before it, and should it do so, then the Supreme Court of the United States is authorized to reverse or affirm the decision. The Constitution, in both courts, would be the supreme

and final test. A treaty transcending or contradicting the Constitution would not be a law which a court should enforce or apply, and should the question arise before a court whether a given treaty is of this character, it would be both its province and duty to decide the point.

The above sketch, though by no means exhaustive, presents a series of legal principles relating to the operation of treaties as laws, which have been established by the courts of the land, especially the Supreme Court of the United States, in determining cases as between litigant parties. There is, in addition to these particulars, an interesting question in relation to treaties and the laws of Congress, when in conflict with each other, which the Constitution does not formally settle. Both are declared to be supreme laws, without any distinction between them as to the degree of their authority. Which then, in a case of conflict, shall prevail? The answer to this question is reserved for another and final article.

EXCISE LICENSES TO PERSONS NOT KEEPING INNS.

NEW YORK SUPREME COURT CHAMBERS, JUNE, 1880.

PEOPLE V. MORRISON ET AL.

By Laws 1857, chap. 628, as amended by Laws 1869, chap. 856, in addition to a license permitting the sale of intoxicating liquor not to be drank on the premises of the seller, two kinds of licenses could be granted in all parts of the State of New York except the Metropolitan Police District, namely, a license to sell strong and spirituous liquors and wines, etc., to be granted only to persons who kept an inn, tavern or hotel, and an ale and beer license to other persons. By Laws 1870, ch. 175, amending the act of 1857, such licenses were allowed in the Metropolitan Police District. Accordingly commissioners of excise granting a license to sell ale and beer in the city of New York to one not keeping an inn, tavern or hotel, do not violate any provision of the excise law. The act of 1870 declares that the provisions of the act of 1857 shall be taken and considered as a part of this act" (of 1870) and be and remain in full force throughout the whole of this State." Held, to apply to the act of 1857 as amended in 1869, and not to the original act of 1857 only.

APPLICATION for a warrant against Richard J.

Morrison, Philip Merkle and George W. Morton, for a violation of their duty as excise commissioners. The opinion states the case.

WESTBROOK, J. Application was made to me as a a judge whilst holding court in New York city, to issue a warrant against the above-named defendants, who are excise commissioners of the said city of New York, upon a complaint charging them with having illegally and contrary to law granted to John Knell, of 95 Maiden lane, in said city, "a license to sell ale and beer in quantities less than five gallons at a time, to be drank on the premises where sold, the said John Knell not being an inn, tavern or hotel keeper."

The point upon which the charge depends is, do the laws of this State permit the granting in the city of New York of an ale and beer license authorizing its sale to be drank on the premises, when the party selling is not licensed as a hotel keeper? In other words, can the excise board of the city authorize ale or beer to be sold and drank on the premises of the seller without granting to him a hotel license?

The complaint involves a pure question of law depending on the construction of statutes, which must be decided upon the laws as they are, without any regard to my own notion of what they ought to be.

By the act of 1857 (ch. 628), as originally passed, enti

tled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," and the sixth section thereof no such license could be granted.

By chapter 856 of the Laws of 1869, however, which both its title and provisions show was amendatory of the act of 1857, and by its fourth section it is provided: "All the provisions of this act as amended shall be held to apply to the sale of ale and beer, except so much thereof as forbids the granting of license to any person, except to such persons as propose to keep an inn, tavern or hotel, and the commissioners of excise may, in their discretion, grant license for the sale of ale or beer, for a sum not less than ten dollars, to other than those who propose to keep an inn, tavern or hotel, and the provisions of this act shall extend to all portions of the State except the Metropolitan Police District."

The reason of the exception of the Metropolitan Police District from the provisions of the act of 1869 was this: By chapter 578 of the Laws of 1866 a separate act existed therefor, excepting the county of Westchester, which authorized a license within such district, to any person or persons of good moral character, and who shall be approved by them, permitting him and them for one year from the time the same shall be granted, to sell and dispose of, at any one named place within said Metropolitan Police District, exclusive of the county of Westchester, strong and spirituous liquors, wines, ale and beer in quantities less than five gallons at a time, upon receiving a license fee to be fixed in their discretion, and which shall not be less than thirty nor more than two hundred and fifty dollars." That act allowed licenses to "sell strong and spirituous liquors, wines, ales and beer in quantities less than five gallons at a time," to be granted without the issuing of one to keep a hotel, to any person within the district to which such act referred. People v. Smith, 69 N. Y. 175, see p. 179.

To return, however, from this digression to the act of 1857, and the amendments of 1869. By a well-known rule of law, the amendments made by the latter to the former became and were, from the date of the enactment, parts of the original act, so that when the act of 1857 is thereafter referred to, unless there be some words used indicating the contrary, the act as amended is intended, as much so as when a reference is made to a physical object, which at the time of such reference is in a changed or altered form, the object as so changed or altered, is thereby designated. Dexter & Limerick Pl. R. Co. v. Allen, 16 Barb. 15, see pages 16, 17. This doctrine is well illustrated in the quaint language of an old case (Bayly v. Murin, 1 Vent. 246, cited with approbation in Potter's Dwarris on Statutes, page 190): "Because the 14 Eliz. is a kind of appendix to the 13th of Eliz. and does not repeat it, but sub modo a little eularging it as to houses in market towns; wherefore the 18th of Eliz., reciting the 13th, does by consequence recite the 14th also."

By chapter 175 of the Laws of 1870, the separate act (ch. 578, Laws of 1866), in regard to the Metropolitan Police District was repealed, "and the provisions of the act passed April sixteenth, eighteen hundred and fifty-seven (i. e., the act entitled 'An act to suppress intemperance and to regulate the sale of intoxicating liquors,' as it read in 1870 by force of the amendment made in 1869), except where the same are inconsistent or in conflict with the provisions of this act, shall be taken and construed as a part of this act, and be and remain in full force and effect throughout the WHOLE of this State."

That act now prevents not only in the city of New York, but anywhere in the State, the granting of any license, except as part of one authorizing the keeping of an inn, tavern or hotel, to "sell strong or spirituous liquors or wines to be drank on the premises," be

cause the provisions of the act of 1857 are still operative "except where the same are inconsistent or in conflict with the provisions" thereof; and the act of 1857 having expressly forbidden the granting of any such licenses except to hotel keepers, the Court of Appeals in People v. Smith, 69 N. Y. 175, decided that that provision of the act of 1857 was not inconsistent with the act of 1870, and was therefore, by the language of the act of 1870, to "be taken and construed as a part thereof."

There is no direct provision in the act of 1870 for the granting of ale or beer licenses as such, but authority is given "to sell and dispose of * * * strong and spirituous liquous, wines, ales and beer in quantities less than five gallons at a time." This general license, however, as wo have seen, the Court of Appeals have held could not be granted except to a hotel keeper, because the restrictions placed upon the granting of licenses to sell "strong or spirituous liquors or wines to be drank upon the premises " by the act of 1857 were not repealed, but were in full force. But the act of 1857 (as amended, for in 1870 the amendments were a part of it) also provided for the granting of licenses "for the sale of ale or beer * * ** to other than those who propose to keep an inn, tavern or hotel," and as that provision was not at all inconsistent with the act of 1870, which, whilst it provided for a general license to sell all kinds of intoxicating drinks to be granted, as held by the Court of Appeals, only in connection with a tavern or hotel license, did not abrogate and annul the power to grant ale or beer licenses only, it must now (for the act of 1870 so requires) “be taken and construed as a part" thereof, and be deemed to be "in full force and effect throughout the whole of the State." In other words, the power to grant a general license to sell intoxicating drinks including ale and beer, conferred by the act of 1870, which can only be granted to a hotel keeper, is not inconsistent with, and does not take away the power to grant an ale or beer license only to a person not a hotel keeper, which the act of 1857, as amended in 1867, authorized, and therefore such provision of the act of 1857, because it is not inconsistent with said act of 1870, is by said act of 1870 made applicable to "the whole of the State." The full argument, which has been for its proper understanding somewhat protracted, may be thus tersely stated. By the act of 1857 as amended in 1869, in addition to one permitting the sale of intoxicating drinks in small quantities not to be drank, however, upon the premises of the seller, two kinds of licenses could be granted. First, a license to self strong and spirituous liquors and wines to be drank on the premises of the persons licensed, to be granted only, however, to persons who kept an inn, tavern or hotel; and second, an ale or beer license to others than those who propose to keep an inn, tavern or hotel." This ale or beer license, however, was engrafted in 1869, upon the act of 1857, and was not applicable to the Metropolitan Police District, for which a separate and distinct license law existed, passed in 1866, under which a general license to sell all kinds of intoxicating drinks could be issued, although the person licensed kept no inn, tavern or hotel. In 1870, however, another license law was passed, which repealed the local Metropolitan Police District act, and made such act of 1870, and the act of 1857 as changed and amended in 1869, when not inconsistent with the act of 1870, applicable to the whole State. Tho act of 1870 did not profess to take away the power to grant a license for the sale of ale and beer only, nor was the right to grant a general license to sell all intoxicating drinks, including ale and beer, inconsistent with tho special license allowed by the act of 1857 as amended in 1869, for the sale of ale and beer only, and because not repealed or inconsistent with the act of 1870, such authority to grant ale and beer

licenses only became from that time operative over the whole State, including of course the city and county of New York, because said act of 1870 so expressly provides.

It follows, of course, that the defendants in granting the license complained of violated no law, and were guilty of no offense, and that no warrant can issue to bring them before me to answer. It is their duty to execute the law as it is, and both they and judges are to interpret it as it reads, and neither are responsible for provisions which may not meet their approval as citizens.

The foregoing opinion was prepared to this point some days ago. Since its preparation my attention has been drawn to a decision of a brother judge (Judge Barnard), which, as reported in the public press, holds that there is no power now to grant anywhere in the State a license for the sale of ale and beer only, separate and apart from a hotel license. The sincere respect entertained for his learning and judgment has induced me to review my conclusion hereinbefore expressed, but such review has not in the least shaken my conviction. After careful and further reflection I am still constrained to hold that the act of 1870, when it declares, "the provisions of the act passed April 16, 1857, except when the same are inconsistent or in conflict with the provisions of this act, shall be taken and considered as a part of this act, and be and remain in full force and effect throughout the whole of this State," refers to the act of 1857 as it reads, when such language was used, and not to it as originally enacted. The reference to the act is a general one and there are no words limiting and controlling the reference. The amendments of 1869 were then part and parcel thereof as much so as its original provisions. It is not the act as passed in 1857, which is made operative over the entire State, but "the act" of 1857, or "passed" in 1857, for either word—" of " or "passed"—in that connec tion has the same signification. If the act of 1870 had declared that the act of 1857 was thereby repealed, it seems to me clear that the entire law as it read in 1870 with all its amendments engrafted thereon and then forming integral parts thereof would have been abrogated, and therefore, when the act of 1870 does not profess to repeal that of 1857, but re-enacts all the provisions of the latter not inconsistent with its own and extends them over the entire State, that such enactment and extension apply not only to its original provisions but to all others which had since become and then were substantial and vital portions thereof. It certainly, as it may be urged, would have been easy for the Legislature, in speaking of the act of 1857, to have added the words "as amended," and it would have been equally easy if the amendments were not also made applicable to the whole State, to have so declared in plain words. Neither, however, has been done, and the simple question then is, does a general reference to a statute, which at the time of such reference is in an amended form, intend the statute as originally passed or the statute as it reads at the time of such reference? This question can only admit of one answer, as shown in the former part of this opinion, and that must be, such a reference is to the act as amended.

There is also another answer to any assertion, if such has been made, that there is no authority now in boards of excise to grant an ale or beer license in any part of the State outside of the old Metropolitan Police District, and it is this. The question before me is, was the act of 1869, because amendatory of the act of 1857, expressly extended over the city of New York by the act of 1870? Unless this question can be answered in the affirmativo the complaint against the police commissioners of the city of New York is well founded, for the act of 1859 excepted such city, as a part of the Metropolitan Police District, from its provisions. Sup

pose, however, I am wrong in the conclusion that the act of 1870, by extending the provisions of the act of 1857 over the whole State, thereby also necessarily extended the act of 1869, which was simply amendatory of that of 1857, over the same territory, when and where was the provision of such act of 1869, permitting the commissioners of excise to "grant licenses for the sale of ale or beer * * * to other than those who propose to keep an inn, tavern, or hotel," and which provision was declared to "extend to all portions of the State except the Metropolitan Police District," repealed? There certainly is no statute which directly repeals it, and as repeals by implication are not favored in the law, it must be shown that some later statute contains provisions necessarily inconsistent therewith, before a right so clearly and expressly conferred can be taken away. A careful search by me has failed to discover any subsequent enactment which is repugnant thereto. Plainly the act of 1870 is not inconsistent therewith, for that, as we have shown in the former part of the opinion, only confers the power to grant a general license for the sale of all intoxicating drinks to a hotel keeper, and such general license is not inconsistent with the special one for the sale of ale or beer only by an individual who is not a hotel keeper. The two licenses are of course different, but difference and repugnance are not synonymous expressions. A power to do several acts under circumstances clearly prescribed is not incompatible with or repugnant to an authority to do only one of those acts under a different condition of things, though the two are unlike. This proposition is too clear to admit of discussion, and the question may therefore well be repeated, When and where was the authority given by the act of 1869 to grant an ale or beer license anywhere in the State, except in the Metropolitan Police District, taken away? If it has been, I have been unable to discover the repealing statute. Indeed it was plumply decided as early as December, 1874, by the General Term of the Supreme Court for the Third Department, held by Judges Bockes, Countryman and Landon (O'Rourke v. People, 3 Hun, 225), that the power to grant ale or beer licenses still existed. The opinions of Judges Bockes and Countryman in that case are so exhaustive as to leave nothing to be said, and are therefore referred to as conclusive upon the question at issue. Now if, to make the argument applicable to the case before me, it be conceded, as it seems to me it must, that the power to grant such licenses anywhere in the State except in the Metropolitan Police District exists, why should the act of 1870 be so construed as to make that district an exception to the rest of the State? The act of 1870 certainly repealed its local excise law, and intended to extend all the provisions regulating the sale of intoxicating drinks in the residue of the State over that locality. If it has not done so, it is because of a failure to express the plain purpose. No proper construction of language used as we have endeavored to show, makes such a conclusion necessary, and the evident propriety of so construing statutes as to work equally rather than unequally over the whole State fortifies the argument already made to demonstrate that the act of 1870 in extending the provisions of that of 1857 over its entire territory, necessarily carried those of 1869, which had become a part of such act of 1857, with them. To prevent any misapprehension as to the scope of the foreign opinion, it should be added that whilst in my judgment the parties complained of committed no crime in granting a license for the sale of ale or beer; it is not held that any obligation to grant licenses of that character devolves upon boards of excise. No such question is involved in the proceeding before me, but as the act is very clear (§ 4, ch. 856 of Laws of 1869), it may not be improper to say in its very words, that such licenses are "in their discretion."

The plaintiffs were champagne merchants at Epernay, in France. The defendant, whose name was the same as that of the plaintiffs, having entered their house and learnt the business, acted for two years as their representative in England, and then wrote a letter to them, by which he undertook not to represent any other champagne house for two years after leaving the plaintiffs' employment, and not to establish himself or associate himself with other persons or houses in the champagne trade for ten years after leaving them. The defendant left the plaintiffs' employment in March, 1877, and in May, 1878, commenced business in London as a retail wine merchant, and sold champagne as well as other wines. In his circulars and advertisements, and on the labels and corks of the champagne bottles were the words "Ay Champagne," but he had no establishment anywhere except in London. Held, that the defendant had committed a breach of the agreement. Held, also, that the agreement was valid, as the restriction was not larger than was necessary for the reasonable protection of the plaintiffs. There is no hard and fast rule that a contract in restraint of trade unlimited as to space is invalid, but the validity depends on the reasonableness of the contract. Leather Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. Rep., 9 Eq. 345, followed. Allsopp v. Wheatcroft, 27 L. T. Rep. (N. S.) 372; L. Rep., 15 Eq. 59, disapproved.

A contract against public policy will not be enforced by English courts, though the contract is valid in the country where it is made, and is entered into between foreign traders. A judgment by default was obtained in France against a Swiss, domiciled in England, on a contract entered into by him while on a temporary visit to France. No notice had been given to him of the action. Held, that the judgment was not binding on him. Schibsby v. Westenholz, 24 L. T. Rep. (N. S.) 93; L. Rep., 6 Q. B. 155, considered. The circumstances which impose a duty upon a defendant to obey the decision of a foreign court stated.

THIS

HIS was an action to restrain the defendant from carrying on the business of a champagne merchant, and for an order for the payment of certain damages awarded by a French court.

The plaintiffs were Jean and Gustave Roussillon, who carried on the business of champagne merchants at Epernay, in France, under the name of J. Roussillon & Co.

In 1866 they took the defendant, Auguste Roussillon, who was a nephew of Jean Roussillon, into their employment as a clerk, in order that he might learn the business. After ho had been two years in their service at Epernay he was sent to England in order that he might learn English, and they afterward employed him as their traveller in England, Scotland, and other places. This necessitated his being introduced to many of the customers of the firm, and the plaintiffs accordingly suggested to him that for their protection he should enter into an engagement not to compete with them in the event of his employment with them being terminated.

In accordance with this suggestion on the 9th October, 1869, the defendant wrote a letter to the plaintiff, J. Roussillon, in French, of which the following is a translation:

"As a return for the kindness and care of which I have been the object, and the trouble you have taken in my commercial education, I address this letter to you as a proof that I undertako not to represent any other champagne house for two years after having left you, if at any time I leave your house for any reason whatever, whether it be on your part or my own. I