of guns and ammunition is concerned. But he only does so in order to enable a thriving company to take his place, at the disposal of which he was to place, for a time, his services; and the restriction on himself to which he has consented will only last while his place in the trade is actively filled by the company or the successors to whom in turn it may resell the goodwill. So far as he might have had occasion to supply the English government with guns and ammunition, this company can act in his stead; although out of his liberty to do so, if he desires it, he cannot in law contract himself, nor is his agreement to be read as imposing any such invalid or possibly illegal stipulation. Can it then be said that a contract by which he consents to the transfer of the business of making guns and ammunition for foreign lands to an English company, with whom he undertakes not to compete so long as the old trade is flourishing in their hands, is against the policy of the English law? So to hold would surely be to reduce to an absurdity the law of restraint of trade. I answer the question in the words of Lord Nottingham in The Duke of Norfolk's Case," "Pray let us so resolve cases here that they may stand with the reason of mankind when they are debated abroad.”

For the purpose of clearness I will, in conclusion, attempt to summarize the exact ground on which I consider this case should be decided. The rule as to general restraint of trade ought not, in my judgment, to apply where a trader or manufacturer finds it necessary, for the advantageous transfer of the goodwill of a business in which he is so interested, and for the adequate protection of those who buy it, to covenant that he will retire altogether from the trade which is being disposed of; provided, always, that the covenant is one the tendency of which is not injurious to the public. This last element in the definition ought not, I think, to be overlooked, for I can conceive cases in which the absolute restraint might, as between the parties, be reasonable, but yet might tend directly to injure the public, and a rule founded on public policy does not admit of any exceptions that would really produce public mischief. Such might be possibly the case if it was calculated to create a pernicious monopoly in articles for English use, a point I desire to leave open, and one which, having regard to the growth of syndicates and trusts, may some day or other become extremely important. As good faith demands that Mr. Nordenfelt should be bound by his solemn agreement, and as the public can in no way be injured by his being held to it, I think

71 3 Ch. Cas. 33.

the injunction as defined by my brother Lindley should be granted, and the order made in the form he has suggested.72

"The order appealed from ought to be varied by declaring that the covenant in question is valid so far as it relates to the trade or business of a manufacturer of guns, gun mountings or carriages, and gunpowder explosives or ammunition. An injunction restricted to those businesses ought to issue, and an inquiry ought to be directed to assess the damages sustained by the plaintiff company by reason of the breach by the defendant of his covenant as restricted."

JUDICIAL OPINION IN THE CASE OF ALLCARD AGAINST SKINNER, IN THE COURT OF APPEAL, 1887.

STATEMENT.

Miss Allcard, a young woman of about thirty-five years of age, being desirous of devoting herself to good works, was introduced, in 1868, by her spiritual adviser, Rev. D. Nihill, to Miss Skinner, the lady superior of a Protestant organization known as "The Sisters of the Poor," a voluntary association of ladies who resided together in East Cheapside in devotion to works of charity. Mr. Nihill and Miss Skinner were the founders of the sisterhood, and the former, besides being the spiritual confessor of the sisterhood, had drawn up the rules by which it was governed. In consequence of the acquaintance thus begun, Miss Allcard, in 1870, became a postulant of the sisterhood, and, in the following year, a professed member, binding herself to observe, among others, the rules of poverty, chastity, and obedience. The rule of poverty required a member to give up all her property to her relatives, or to the poor, or to the sisterhood itself; but the forms in the schedule to the rule were in favor of the sisterhood, and provided that property made over to the lady superior should be held by her in trust for the general purposes of the sisterhood. The rule of obedience required the member to regard the voice of her superior as the voice of God. The rules also enjoined that no sister should seek advice of any extern without the superior's leave. Within a few days after becoming a member, Miss Allcard made a will leaving all her property to Miss Skinner, and from time to time, while still a member of the sisterhood, she made over to Miss Skinner checks and stocks to the amount of more than £7,000, the greater part of which had been spent for the purposes of the sisterhood. In 1879 Miss Allcard left the sisterhood. and forthwith revoked her will, but made no claim for the return of her property until 1885, when she brought suit for its recovery. In the statement of her case she claimed that she had been induced to make over the property while acting under the direction and paramount influence of Miss Skinner, without any separate and independent advice, and without any due consideration of the reasons for or effect of what she was doing. The defense replied that Miss Allcard had joined the sisterhood of her own independent desire and deliberate choice, and, at the time she became a member, had voluntarily determined to employ her property for the benefit of the sisterhood; that the sisterhood, while the plaintiff was a member, and with her concurrence and approval, had expended, in erecting hospitals and other buildings, a much larger sum than the amount of stocks claimed by the plaintiff, and had undertaken obligations which they could not fulfill without the assistance of the funds voluntarily contributed by her; and that the defendant, Miss Skinner, made no personal claim to the property except as a member of the sisterhood, and relied on the laches and acquiescence of the plaintiff as a bar to her claim.

The case was elaborately argued by Sir Charles (afterwards Lord Chief Justice) Russell and Mr. Finlay, for the plaintiff, and by Sir Edward Clarke and Mr. Warnington for the defendant. At the original hearing before Justice Kekewich it was held that since, at the time she made the gifts, she was subject to undue influence, Miss Allcard would have been entitled, on leaving the sisterhood, to claim restitution of such of her prop

erty as was still in the hands of Miss Skinner; but it was further decided by this judge, and in the court of appeal by Lords Justices Lindley and Bowen (Lord Justice Cotton dissenting), that, under the circumstances of the case, the plaintiff's claim was barred by her laches and acquiescence since her withdrawal from the sisterhood.1

OPINION.

This is a case of great importance. There are no authorities which govern it. My brethren, on whose experience in matters of equity I naturally should rely, differ, and on that ground I have thought it right to express my own views upon the point. It is a question which must be decided upon broad principles, and we have to consider what is the principle, and what is the limitation of the principle, as to voluntary gifts, where there is no fraud on the part of the defendant, but where there is an all-powerful religious influence, which disturbs the independent judgment of one of the parties, and subordinates, for all worldly purposes, the will of that person to the will of the other.

It seems to me that it is of essential importance to keep quite distinct two things which in their nature seem to me to be different,— the rights of the donor, and the duties of the donee, and the obligations which are imposed upon the conscience of the donee, by the principles of this court. As to the rights of the donor in a case like the present I entertain no doubt. It seems to me that persons who are under the most complete influence of religious feeling are perfectly free to act upon it in the disposition of their property, and not the less free because they are enthusiasts. Persons of this kind are not dead in law. They are dead to the world, so far as their own wishes and feelings about the things of the world are concerned, but such indifference to things external does not prevent them, in law, from being free agents. In the present instance there was no duress, no incompetency, no want of mental power on the part of the donor. It seems to me that, so far as regards her rights, she had the absolute right to deal with her property as she chose. Passing, next, to the duties of the donee, it seems to me that, although this power of perfect disposition remains in the donor under circumstances like the present, it is plain that equity will not allow a person who exercises or enjoys a dominant religious influence over another to benefit directly or indirectly by the gifts which the donor makes under or in consequence of such influence, unless it is shown that the donor, at the time of making 136 Ch. Div. 145.

the gift, was allowed full and free opportunity for counsel and advice outside, the means of considering his or her worldly position, and exercising an independent will about it. This is not a limitation placed on the action of the donor; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play. If this had been the gift of a chattel, therefore, the property then would have passed in law, and the gift of this stock may be treated upon a similar method of reasoning. Now, that being the rule, in the first place, was the plaintiff entitled to the benefit of it? She had vowed, in the most sacred and solemn way, absolute and implicit obedience to the will of the defendant, her superior, and she was bound altogether to neglect the advice of externs,-not to consult those outside the convent. Now, I offer no sort of criticism on institutions of this sort; no kind of criticism upon the action of those who enter them, or of those who administer them. In the abstract, I respect their motives, but it is obvious that it is exactly to this class of cases that the rule of equity which I have mentioned ought to be applied if it exists. It seems to me that the plaintiff, so long as she was fettered by this vow,-so long as she was under the dominant influence of this religious feeling,-was a person entitled to the protection of the rule. Now, was the defendant bound by this rule? I acquit her most entirely of all selfish feeling in the matter. I can see no sort of wrongful desire to appropriate to herself any worldly benefit from the gift; but, nevertheless, she was a person who benefited by it so far as the disposition of the property was concerned, although, no doubt, she meant to use it in conformity with the rules of the institution, and did so use it. I pause for one moment to say a word as to Mr. Justice Kekewich's view, which is not altogether consistent with the above. He seems to have thought that the question turned on the original intention of the donor at the time she entered the convent, and that what passed subsequently could be treated as if it were a mere mechanical performance of a complete mental intention originally formed. I entirely agree with the view presented to us by the appellant as to that part of Mr. Justice Kekewich's judgment. It seems to me that the case does not turn upon the fact that the standard of duty was originally created by the plaintiff herself, although her original intention is one of the circumstances, no doubt, which bears upon the case, and is not to be neglected. But it is not the crucial fact. We ought to look, it seems to me, at the time at which the gift was made, and to examine what was the condition of the donor who made it. For these reasons I think