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general law cannot be reviewed on the the down, and the writ of error must be disory that the law of the land is violated un- missed. less their conclusions are absolutely free from error."

McKenna, J., took no part in the deciThis case comes within the rule there laid | sion of this case.

UNITED STATES CIRCUIT COURT OF APPEALS, FIRST CIRCUIT.
Charles THIBODEAU, Appt., Brake Co. v. Chicago Brake & Mfg. Co. 85

Fed. 786; McFarland v. Stanton Mfg. Co.
Herbert L. HILDRETH.

53 N. J. Eq. 649, 51 Am. St. Rep. 647, 33

Atl. 962; Montgomery Palace Stock Car Co. (124 Fed. 892.)

v. Street Stable Car Line, 142 Ill. 315, 31

N. E. 434; Allison Bros. v. Allison, 144 N. A contract by one about to enter an- Y. 21, 38 N. E. 956; Pope Mfg. Co. v. Gor

other's employ for the purpose of improv- mully, 144 U. S. 224, 36 L. ed. 414, 12 Sup. ing machinery used in the latter's business. ct. Rep. 632; Johnson v. Shrewsbury & B. that the employer shall have the benefit of all inventions made by him during the term R. Co. 3 DeG. M. & G. 914; Meissner v. of the employment, and that, in case patents Buek, 28 Fed. 161. shall not be applied for, the employee shall The Hildreth agreement is not mutual, keep the information forever secret, is not and therefore not enforceable in equity. unconscionable, nor against public policy, and

Duvall v. Myers, 2 Md. Ch. 401; Richards may be enforced.

v. Green, 23 N. J. Eq. 536; Rutland Marble (June 19, 1903.)

Co. v. Ripley, 10 Wall. 339, 19 L. ed. 955.

Thc Hildreth agreement is a mere servAPPEAL, by defendant from a decree of the ice contract, and not enforceable in equity,

Briggs. the District of Massachusetts dismissing vis v. Foreman (1894) 3 Ch. 654; Whitwood his cross bill, which sought the cancelation Chemical Co. v. Hardman (1891] 2 Ch. 416; of a contract which the bill was filed to en. Karrick v. Hannaman, 168 U. S. 328, 42 L. force. Affirmed.

ed. 484, 18 Sup. Ct. Rep. 135; Pom. Spec. The case sufficiently appears in the opin- Perf. p. 67, § 48; Kennicott v. Leavitt, 37 m. ion.

App. 435; Stocker v. Brockelbank, 3 Macn. Argued before Putnam, Circuit Judge, & G. 250; Mair v. Himalaya Tea Co. L. R. and Brown and Lowell, District Judges. 1 Eq. 411; Johnson v. Shrewsbury & B. R.

Messrs. John S. Richardson and wil, Co. 3 DeG. M. & G. 914. liam Quinby, for appellant:

Affirmative relief may be had under cross Cancelation should be granted under cross

bills. bill when the contract is a "menace," or

Morgan Envelope Co. v. Walton, 30 C. C. there is “danger” that it may be used to A. 383, 58 U. S. App. 30, 86 Fed. 605; harass parties seeking cancelation.

Stimpson Computing Scale Co. v. W. F. Story, Eq. Pl. $ 391; Story, Eq. Jur. & Stimpson Co. 44 C. C. A. 241, 104 Fed. 893 ; 694; San Diego Flume Co. v. Souther, 32 c. San Diego Flume Co. v. Souther, 32 C. C. C. A. 548, 61 U. S. App. 134, 90 Fed. 164; A. 548, 61 U. S. App. 134, 90 Fed. 164; Richards v. Todd, 127 Mass. 167.

Richards v. Todd, 127 Mass. 167. The Hildreth agreement in question is a

Messrs. Causten Browne and Alexannaked assignment in gross of a man's future der P. Browne for appellee. labors, a "mortgage on a man's brain,” and therefore, unconscionable and unenforceable. Lowell, District Judge, delivered the

Aspinwall Mfg. Co. v. Gill, 32 Fed. 697; opinion of the court: Dalzell v. Dueber Watch Case Mfg. Co. 149 Hildreth brought a bill in equity against U. S. 315, 37 L. ed. 749, 13 Sup. Ct. Rep. Thibodeau to enforce the provisions of the 886; Independent Electric Co. v. Jeffrey following contract: Mfg. Co. 76 Fed. 981; Westinghouse AirNote.—For the somewhat similar question

Whereas, Herbert L. Hildreth, of Boston, of validity of contract by employee not to dis- candy manufacturer, is desirous of having close secrets imparted to him by his employer, perfected and manufactured a certain masee O. & W. Thum Co. v. Tloczynski, 38 L. R. chine or machines for use in the manufacA. 200.

For contracts respecting secrets as unlawful turc. of candy, and especially for sizing, restraint of trade, see note to Gamewell Fire shaping, cutting, wrapping, and packing, Alarm Teleg. Co. v. Crane, 22 L. R. A. 674. also the pulling of molasses candy, and

whereas I, Charles Thibodean, being a fraud. The circuit court dismissed both skilled mechanic, and desirous of entering bill and cross bill, for the reasons set out in the employ of said Hildreth for the purpose Hildreth v. Thibodeau, 117 Fed. 146. of constructing, improving, and perfecting Reasonably interpreted, the contract prosuch machinery: Now, therefore, in consid- vided that Hildreth should take the benefit eration of such employment, and of the pay. and enjoyment of all those inventions and ment of wages to me at the rate of ($3.25) improvements relating to machines used in three dollars and twenty-five cents per day, Hildreth's business which Thibodeau might I hereby agree with said Hildreth to enter make while employed by Hildreth. The emhis employ, and that I will give him my best ployment might be ended at any time, either services, and also the full benefit and enjoy. by Hildreth or by Thibodeau, and inventions ment of any and all inventions or improve thereafter made by Thibodeau would belong ments which I have made or may hereafter to him, and would not be covered by the make relating to machines or devices per contract. By the contract Thibodeau furtaining to said Hildreth's business. I also ther agreed, if required to do so by Hilfurther agree that should said Hildreth not dreth, to keep secret forever all the invendesire to patent any of said inventions or tions which he made while in Hildreth's emimprovements, but to keep the same secret, ployment. As to these inventions, ThiboI will do all in my power to assist him in deau's agreement was perpetual, and it conthis, and will not disclose any information tinues to bind him, notwithstanding his emas to the same, or any of them, except at the ployment has been ended. This contract is request of the said Hildreth.

neither unconscionable nor against public Signed at Boston, Mass., this 29th of policy. Such an agreement is not uncomMay, 1897. Charles Thibodeau. monly made by an employee with his em

ployer, and it may be necessary for the reaIn particular the bill sought a conveyance sonable protection of the employer's busiby Thibodeau to Hildreth of a certain inven- ness. tion nanied therein, and of an application to The evidence fails to show that the conpatent the same, to which conveyance the tract was obtained by fraud or misrepresenbill alleged that Hildreth was entitled by tation, and the cross bill cannot be supportvirtue of the contract. Thibodeau filed a ed on that ground. cross bill, asking for the delivery up and The decree of the Circuit Court is afcancelation of the contract, on the groundfirmed, and the appellee recovers his costs that it was unconscionable, and obtained by of appeal.

MONTANA SUPREME COURT.

A PPEAL by defendant from a judgment

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Charles M. BAIR, Respt.,

of the District Court for Yellowstone Henry STRUCK, Appt.

County in favor of plaintiff in an action

brought to recover damages for injuries to (........ Mont.........)

sheep alleged to have been caused by defend1. A deputy sheep inspector, who, un ante negligence. Affirmed. der a proclamation of the governor that cer

The facts are stated in the opinion. tain sheep shall be quarantined and dipped for disinfection, attempts to do the dipping,

Messrs. C. B. Nolan and James R. acts in a ministerial capacity, and is liable Goss for appellant. for injuries caused by negligently dippir Messrs. O. F. Goddard and M. S. Gunn, the sheep in an improper bath; and the fact for respondent: that he has some discretion as to the in

Where, in the exercise of the police power gredients of the bath is immaterial. 2. In an action to recover damages

of the state, private property is destroyed, for dipping sheep in an unsuitable unless the conditions actually exist which, solution, so that some died and others were by virtue of the law, authorize its destrucpermanently injured, evidence is not admis- tion, the officer exercising the power acts in sible that no sheep were killed by using the

excess of his jurisdiction and is liable. same solution under similar circumstances

Miller v. Horton, 152 Mass. 540, 10 L. R. upon flocks of other persons, where there is no attempt to show that such other sheep A. 116, 23 Am. St. Rep. 850, 26 N. E. 100; were not injured.

Pearson v. Zehr, 138 Ill. 48, 32 Am. St. Rep. (November 2, 1903.)

113, 29 N. E. 854; Newark & 8. 0. Horse

Car R. Co. v. Hunt, 50 N. J. L. 308, 12 Atl. NOTE.—As to liability of officers for minis- 697; People ex rel. Copcutt v. Board of terial acts, see also Robinson v. Rohr, 2 L. R. A. 366, and cases in note to Bates v. Horner, Health, 140 N. Y. 1, 23 L. R. A. 481, 37 Am. 22 L. R. A, 825.

St. Rep. 522, 35 N. E. 320; Beers v. Board of Flealth, 35 La. Ann. 1132, 48 Am. Rep. 1 The complaint alleges that in August, 1899, 256; Markham v. Brown, 37 Ga. 277, 92 Am. the plaintiff was the owner of 150 head of Dec. 73.

Merino bucks, which had lately been importThe governor, in deciding that all sheep ed into this state from the state of Oregon; imported into the state should be dipped, that the defendant was deputy sheep inspecacted in a judicial capacity. The defend tor for Yellowstone county, and as such ant, however, in performing the duty im- took the sheep from the possession of the posed upon him, acted in a ministerial ca- plaintiff, and subjected them to certain pacity.

quarantine regulations; that none of the McCord v. High, 24 Iowa, 336; Mechem, sheep were diseased; that the defendant Pub. Off. § 782; 23 Am. & Eng. Enc. Law, wrongfully and negligently prepared the ma2d ed. p. 377; Hicks v. Dorn, 42 N. Y. 47; terials used for dipping the sheep, and put Hatcher v. Dunn (Iowa) 66 N. W. 905; Cu- therein carbolic acid or other poisonous bit v. O'Dett, 51 Mich. 347, 16 N. W. 679; matters in such quantities that 69 head of Johnston v. District of Columbia, 118 U. S. said sheep were killed, and the remaining 19, 30 L. ed. 75, 6 Sup. Ct. Rep. 923; Chi- 81 so badly injured as to render them unfit cago v. Seben, 165 Ill. 371, 56 Am. St. Rep. for breeding purposes, for which they were 245, 45 N. E. 244; Aaron v. Broiles, 64 Tex. purchased. The prayer of the complaint was 316, 53 Am. Rep. 764; Olmsted v. Dennis, for $2,100 damages. The defendant admit77 N. Y. 378.

ted in his answer that he was deputy sheep Whenever a public officer delegated to ex. inspector, and that as such he dipped the ercise the police power of the state, through sheep in question on August 20, 1899, and negligence or an error in judgment, exceeds denied the other material allegations of the the authority conferred by the statute, and complaint. By way of an affirmative deinjures or destroys property, he is a naked fense, the defendant alleged that the diptrespasser, and liable to the injured party. ping of the sheep in question was done by

Pearson v. Zehr, 138 Ill. 48, 32 Am. St. him under and by virtue of a quarantine Rep. 113, 29 N. E. 854; Miller v. Horton, proclamation issued by the governor of 132 Mass. 540, 10 L. R. A. 116, 23 Am. St. Montana on April 15, 1899. The cause was Rep. 850, 26 N. E. 100; People ex rel. Cop- tried to a jury, which returned a verdict cutt v. Board of Health, 140 N. Y. 1, 23 L. in favor of the plaintiff for $1,055.50, and R. A, 481, 37 Am. St. Rep. 522, 35 N. E. from the judgment entered for the amount 320; Newark & $. 0. Horse Car R. Co. v. of the verdict and costs, and from an order Hunt, 50 N. J. L. 308, 12 Atl. 697; Mark- denying the defendant a new trial, these apham v. Broun, 37 Ga. 277, 92 Am. Dec. 73. peals are taken.

Where part of an offer is objectionable, it In the appellant's brief only two propois not error to reject the entire offer. The sitions are argued: (1) Does the complaint entire offer is subject to the objection that state a cause of action ? And (2) Did the it does not appear therefrom that the dip court err in excluding a certain offer of used on other occasions was composed of proof made by the defendant, and in susthe same ingredients and mixed in the same taining objections to certain questions proportions as that used in dipping the asked the defendant ? plaintiff's sheep.

1. It is earnestly contended that the com(reen). Ev. § 52; Vedsker v. Pogue, 1 plaint shows on its face that, in the disInd. App. 197, 27 N. E. 432; Atkinson v. charge of his duties, the defendant acted as Goodrich Transp. Co. 69 Wis. 5, 31 N. W. a quasi judicial officer, and therefore is not 164; Branch v. Libbey, 78 Me. 321, 57 Am. liable for damages arising from his neglikep. 810, 5 Atl. 71; Clark v. Willett, 35 gence, and would only be liable for such Cal. 534; Burgess v. Davis Sulphur Ore Co. damages as were occasioned by his wilful 105 Mass. 71, 42 N. E. 501; Lucia v. Meech, or wanton misconduct, and no such misconC8 Vt. 175, 34 Atl. 695; Cleveland, C. C. & duct is alleged. Such portions of the Po. 1. R. Co. v. Wynant, 114 Ind. 525, 5 Am. St. litical Code as are applicable to the facts of Rep. 644, 17 N. E. 118; Hudson v. Clecago this case read as follows: & N. W. R. Co. 59 Iowa, 581, 44 Am. Rep. “Sec. 3034. Whenever the governor, by 692, 13 N. W. 735; Parker v. Portland Pub. proclamation, quarantines for inspection, as Co. 69 Me. 173, 31 Am. Rep. 262; Mathews provided in the next section, any sheep v. Cedar Rapids, 80 Iowa, 459, 20 Am. St. brought into Montana, the deputy inspectRep. 136, 45 N. W. $94.

or of the county in which such sheep may

coine, must immediately inspect the same, Holloway, J., delivered the opinion of and, if he finds that they are infected with the court:

scab, or any other infectious disease, he must This action was commenced by the plain-cause the same to be held within a certain tiff, Bair, to recover damages from the de- limit or place in his said county, to be defendant for injury to personal property.' fined by him, until such disease has been

or

eradicated, as provided in the next preced- | nized and reliable dip, known to be efficient ing section.

in the cure of scab"-the defendant was "Sec. 3035. Whenever the governor has cailed upon to exercise his judgment and reason to believe that any disease mentioned discretion in determining the material to by this article has become epidemic in cer- be used and the method of its application, tain localities in any other state or terri- and in this he acted in a quasi judicial catory, or that conditions exist that render pacity. With this contention we cannot sheep likely to convey disease, he must agree. The law contemplates that only thercupon, by proclamation, designate such men who, by their skill and experience, are localities, and prohibit the importation competent, shall be appointed such depufrom them of any sheep into this state, ties, and invested with the duty of carry. except under such restrictions as he, after ing into execution this police power of the consultation with the veterinary surgeon, state. The mere fact that such officers are may deem proper."

called upon to exercise some discretion or Acting under the authority of these sec- judgment in selecting materials to be used tions, the governor of Montana, on April and the manner of their use does not change 15, 1899, issued a proclamation, the perti- the character of their acts from ministerial nent portions of which read as follows: to judicial or quasi judicial ones. Expe"Whereas, I have reason to believe that con- rience teaches that few, if any, ministerial ditions exist which render the class of sheep onlicers are not called upon to exercise some herein designated rams, or bucks, or stock | judgment or discretion in the performance sheep, when brought into this state, liable of their official duties. But, if the contento convey the disease known as 'scab, it is tion of the appellant be sustained, the disherchy ordered that all rams, or bucks, or tinction between ministerial and quasi ju. stock sheep, imported into the state of Mon- dicial acts is practically abolished. As distana, from any other state or territory of tinguishing between acts quasi judicial and thie United States or foreign countries what acts ministerial in their character, the folsoerer, must, when shipped, be loaded at lowing definitions we think correctly state point of starting into properly disinfected the law: "Quasi judicial functions are car or cars, and shipped in such properly those which lie midway between the judidisinfected car cars into this state, cial and ministerial ones.

The lines sepawhere, upon arrival at the state line of rating them from such as are thus on their Montana, or the closest available point two sides are necessarily indistinct; but, in tlereto where the sheep are to be unloaded general terms, when the law, in words or by to be driven to destination in the state, and implication, conimits to any officer the duty before being turned upon the public domain of looking into facts, and acting upon them, or upon private premises, and all rams, not in a way which it specifically directs, bucks, or stock sheep driven into or through but after a discretion in its nature judicial, any portion of this state from any adjoin-thic function is termned quasi judicial.” ing state or country, avoiding all quaran- Mechem, Pub. Off. ģ 637; Bishop, Non-Contine yards and areas, shall be held at such tract Law, $$ 785, 786. "Where a power point or points as may be hereinafter des- rests in judgment or discretion, so that it is iguated and there dipped under the super- of a judicial nature or character, but does vision of the state veterinarian through the not involve the exercise of the functions of deputy sheep inspector of the county into a judge, or is conferred upon an officer other which the sheep are to reinain, and said than a judicial officer, the expression used sheep shall be dipped in some recognized is generally 'quasi judicial.' ... The and reliable dip kuown to be eflicient in the officer may not, in strictness, be a judge; cure of scab, twice, the second dip to occur still, if his powers are discretionary, to be within ten days or between ten and twelve exerted or withheld according to his own days after the first dipping." Under the view of what is necessary and proper, they foregoing provisions it was made the duty are in their nature judicial.” Throop, Pub. of the gorernor to determine what sheep, Off. $$ 533, 534. "A ministerial act may, not themselves diseased, should be quaran- perhaps, be defined to be one which a person tined, and to prescribe the quarantine regu- performs in a given state of facts, in a prelations. In doing so he doubtless acted in scribed manner, in obedience to the mandate a quasi judicial capacity, and, having once of legal authority, without regard to or the determined that fact, and having pre-exercise of his own judgment upon the proscribed such regulations in his proclamation, priety of the act done.” Id. § 537; Flourthe only duty devolving upon the defendant noy v. Jeffersonville, 17 Ind. 169, 79 Am. was to carry such regulations into effect. Dec. 468; Pennington v. Streight, 54 Ind.

But it is contended that under the pro- 370. . "In the same line, a ministerial act visions of the governor's proclamation, has also been defined as ‘an act performed in "said sheep shall be dipped in some recog.'a prescribed manner, in obedience to the law or the mandate of legal authority, with-| for damages sustained by any person from out regard to, or the exercise of, the judg. his neglect of duty. ... In the disment of the individual upon the propriety charge of this duty, thus imperatively imof the acts being done.'” Mechem, Pub. Off. posed upon him by law, he acted ministe$ 657. An act is not necessarily taken out rially. It is true that he was bound to exof the class styled "ministerial" because the ercise his discretion as to the methods and officer performing it is nevertheless vested instrumentalities to be employed, and this with a discretion respecting the means or is true of all ministerial officers; and yet it the method to be employed. Such is not has never been held that, merely because the judgment or discretion which is an es- ministerial officers have a discretion to exsential element of judicial action. McCord ercise, that gives them the immunity of juv. High, 24 Iowa, 336; Grider v. Tally, 77 dicial oflicers. In this case, then, the deAla. 422, 54 Am. Rep. 65; Mechem, Pub. Off. fendant was bound to discharge his minis§ 658; 23 Am. & Eng. Enc. Law, 2d ed. p. terial duties in a prudent, careful manner, 377. The saine doctrine is announced in without infringing upon the rights of priHicks v. Dorn, 42 N. Y. 47. In this case vate individuals, or unnecessarily injuring the plaintiff, Hicks, was the owner of a them, and for an improper discharge of his canal boat, and the defendant was the su- duty the law makes him liable to the indiperintendent of repairs in charge of one sec- vidual injured.” The question involved in tion of the Erie canal. Along this canal was this controversy is not whether the policy a dry dock, into which plaintiff's boat adopted was wise, but whether a wrong was had been taken for repairs. In May, 1865, done in the details of its execution. We there was a violent spring rain which raised are of the opinion that in the discharge of the water in the canal to such an extent his duty the defendant acted in a ministethat in some places it ran over the banks, rial capacity only. and it became necessary to open the waste i 2. Upon the trial the defendant in his gates connected with the dry dock to let own behalf made the following offer of proof, off the surplus water. The captain com- which, upon objection, was excluded: “We menced moving the boat into the canal, and desire to show by this witness that no difwhen about half way through the gates in ferent character of dip is used in which to the canal, the water having run rapidly out dip Merino bucks as contradistinguished of that compartment of the dry dock, the from ewes or wethers; that the dip in queshoat was left resting upon the sill of the tion is a staple in the market for the purwaste gate, about one half of the boat ex. poses for which it is used, and is sold in the tending into the canal and the other half in open market for such purposes, and sold unthe dry dock. In order to render the canal der a certain specific name and brand; that navigable, it became necessary to move the before and after the month of August, 1899, boat; and several methods for the accom- the defendent, as deputy sheep inspector, plishment of this purpose were open to the used the same character of dip, so far as he superintendent, one of which was cutting could tell by brand and selling mark, in up and removing the boat so as to close the which to dip sheep generally; that he used gates, and this method he pursued as the this dip so purchased in proportions such most expeditious for accomplishing his pur- as were used in the instance of the Bair pose. An action having been brought against bucks, and that in the admixture of the him by the owner or the boat, among other same with water he substantially did in defenses set up was that in performing his those other cases as he did in this instance; duties the defendant liad acted in a quasi judicial capacity, and could not be held lia- that the dipping of those other sheep was in ble except for wanton misconduct on his part.

the vat in which the bucks in question were In disposing of this contention the court dipped; and that no fatal results followed said: “It is claimed that the defendant in from the dipping of those sheep in substandetermining to remove this boat, and in the tially the same manner and in the dip made renoval of it, had a judicial discretion to in the same proportions as was used in exercise; and hence that he is not liable,

this instance." Afterwards the following in a civil action, for the manner in which questions were asked the witness, and obhe exercised this discretion. I am unable jections to them were sustained: to see in what sense the defendant, as to this transaction, acted judicially. The law

Q. Was the dip that was used in the dipmade it his duty to put this canal in repair, ping of Mr. Bair's sheep the same dip as

. and it was not left to his discretion was used in the dipping of these other to determine whether he would discharge sheep? that duty or not. The law made it an im- Q. You may state if the dip and the water perative duty, and, if he had neglected to used in the dipping of these sheep of Holpersorm it, he would have been liable civilly'ling's and William Clanton's just prior to

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