Page:Harvard Law Review Volume 4.djvu/150

134 HARVARD LAW REVIEW, Mandeville v. Harman (1886).^ Injunction, to restrain the de- fendant from violating his agreement not to engage in the practice of medicine or surgery in Newark at any time. The application was denied, because the reasonableness of such a restraint had not been determined in that State. But the court recognized the test to be that for which we are now contending. Before we examine the later cases let us now sum up. (^.) We see an ever-increasing tendency all through these and other cases on our lists, but which we cannot stop to examine in detail, towards an abandonment of the supposed and, indeed, com- monly misstated principles of the earlier cases, and towards the consideration of each case, especially in courts of equity, upon the question of reasonableness^ as applied to the particular case. (b>f The majority of the older cases that would seem to militate against this view were cases arising at law in debt upon bond, or in covenant, in which cases the common-law court, of course, con- strued strictly the condition of the bond or the terms of the cove- nant. If it be urged in reply that " Equity follows the law," the answer is, that depends upon how this maxim is to be construed. Does it mean that equity is to follow the law, slavishly, as its master, or intelligently, as its guide.** Unfortunately there has been a strong tendency, in the United States especially, to follow it as its master. In this country this probably arises from the fact that our judges and lawyers are, first and foremost, common-la W judges and lawyers, and even in a court of equity they are only secondarily equity judges and lawyers. In England, under the old system, equity judges and lawyers were always first and fore- most equity judges and lawyers. They were not hampered, in their application of equitable principles, by a previous strict course of education in the common law, or by the too prevailing admiration of American lawyers for the narrow and harsh principles of that essentially scholastic and metaphysical system. Therefore we find, as a general rule, that the English Chancery Courts are stronger than ours, and apply equitable principles in a broader spirit, regard- ing less the narrow limitations of the common law. In other words, they follow the common law as a guide, and not as a master. {c) We have examined indiscriminately cases in which the restraint was limited, and those in which it was unlimited, as to 1 7 AU. Rep. z-j.