Scranton, agreed on a sufficient consideration which was paid him that he would not "establish himself in the dental business in Scranton or its suburban towns," while the plaintiff was "in the said practice of dentistry."

3. On a strict construction of this agreement there has been no breach of it. While the defendant has established himself in the dental business at Green Ridge, a suburb of Scranton, the plaintiff is not engaged in the practice of dentistry, and not being a dentist is prohibited from so doing by the several acts of assembly upon the subject. See Act 17, April 1876, P. L. 39; Act June 20, 1883, P. L. 129; Act 10 June, 1893, P. L. 441.

4. But construing the agreement according to its true. intent and purpose, there has been a breach. The defendant in selling out and relinquishing his practice to the plaintiff agreed not to establish himself in the dental business in Scranton or its suburbs while the plaintiff was "in the said practice of dentistry;" that is to say, in the dental practice or business which the defendant had so transferred to him.

5. While the plaintiff from lack of proper professional qualifications is prohibited by law from himself engaging in practice of dentistry, there is nothing to prevent him from being interested in a dental business in which the actual dentistry is done by others who are qualified. That is the relation which he bears to the business formerly belonging to the defendant; it is carried on by his son, who is a dentist, while he participates in the profits or returns. He is therfore "in the said practice of dentistry" within the meaning of the defendant's contract and interested in having the defendant restrained from a breach of it provided he is otherwise entitled to such relief.

6. But for other reasons I do not think the defendant should be enjoined.

(a) In the first place no appreciable injury to the plaintiff's business has been shown by the establishment of the defendant at Green Ridge. The plaintiff's and the defendant's offices are a mile apart, and while the two suburbs of Scranton, Green Ridge and Providence, where the said offices are severally located, are somewhat in the same end of that city, in character and locality they are quite distinct, and I cannot assume that the one office would draw on the patrons of the other. It is, therefore, incum

bent upon the plaintiff to show an actual interference or a like-`' lihood of it, which has not been done.

(b) But more than this, the plaintiff is in large measure responsible for the defendant's having set himself up in the practice of dentistry at Green Ridge. Under the suggestion that they should go into business together, the defendant in the latter part of August secured the office which he now has and subsequently at considerable expense made it suitable for the dental business and fitted it uo with the necessary office appointments. By agreement with the plaintiff's son, a partnership was formed and a joint Business entered into and carried on for about six weeks, the defendant doing not only his own work but aiding in that of the Providence office. While this arrangement was made in the plaintiff's absence, it was in practical pursuance of what had been already discussed with the plaintiff and was made with his son, who was fully identified with him in the business and it was further recognized and assented to by the plaintiff upon his return. Having been led to establish himself in this way for the benefit in part of the plaintiff and to expend both time, money and labor in doing so, it would not be equitable to now turn the defendant out of his business simply because to agree with the plaintiff on the final details of the joint arrangement.

7. The bill should be dismissed with costs.

OPINION.

The agreement by the defendant not to engage in the practice of dentistry was manifestly made for the purpose of protecting and giving value to the business which he was selling to the plaintiff, and this must be kept in mind in construing the restriction to which he agreed. It is while the plaintiff "is in the said practice of dentistry"-that is in the practice so sold to him that the defendant is not to establish himself in Scranton or its suburbs, and it is a violation of this for the defendant to set himself up anywhere in the locality named so long as the plaintiff has the business and practice which he so purchased.

It is true that the plaintiff, by reason of the statutes regulating the subject, is not himself entitled to engage in the practice of dentistry. But these laws were manifestly passed for the purpose of exacting proper professional study and skill

from those who do the actual manual work as dentists or who control or supervise the same. They do not prevent a person from being interested in or conducting a dental business through the medium of others who are duly qualified, so long as he does not undertake to act as a dentist himself. It has been so held with regard to druggists: Commonwealth vs. Johnson, 144 Pa. 377; Commonwealth vs. Zacharias, 181 Pa. 126; and the same principle applies as to any other profession, business or trade which is sought to be regulated by law. That is the position of the plaintiff here. He is in partnership with his son, who is possessed with the requisite legal and professional qualifications and was so at the time of the purchase. They both took part in it, although the actual agreement was with the father and while the son was to be the dentist and do the work the father was to have an interest in the business and could therefore legitimately bargain for its protection as he did. not be objected that by the exclusion of the defendant the community loses the benefit of his skill and services without the assurance of anything in its place on account of the inability of the plaintiff himself to professionally fill it. It is no doubt true. as said by Selden, J., in Lawton vs. Kidder, 10 Barber 641, that "the law will not tolerate a contract which excludes one individual from carrying on his trade in a particular locality unless the circumstances show that his place is to be supplied by some other person of the same trade." But this is met in the present instance by the fact that the practice relinquished by the one party was to be and is being carried on by the other, and it matters not to the community how this is done, whether by the direct instrumentality of the substituted party or by the aid of others whom he employes. The contract in controversy, therefore, is a perfectly lawful one and one which, under appropriate conditions, the plaintiff could ask to have specifically enforced.

But specific performance is always of grace and not of right, and even with the possession of a complete and unquestioned contract a party will often be remitted to such remedy as the law provides. This is as true with regard to the enforcement of agreements in partial restrain of trade as in others. Keeler vs. Taylor, 53 Pa. 467. In the present instance, the occasion for the restraining power of a court of equity is materially

affected if it is not entirely removed by the failure to show that the defendant's establishing himself in business at Green Ridge will in any way affect the plaintiff's business at Providence. "It is usually requisite," says Mercur, J., in Harkinson's Appeal, 78 Pa. 196, "that the party agrieved should show some appreciable damage as the result of the breach of the covenant which he seeks to restrain." And in Gompers vs. Rochester, 56 Pa. 194, the doubt is expressed by Thompson, C. J., whether any case could be found "in which such a covenant has been enforced where it has no effect to protect the business or trade of the covenantee." It must be admitted, however, that where there is a reasonable likelihood of injury a case for interference would be made out even though no direct damage should appear, but even this condition is not fulfilled in the present instance. The two different suburbs of Scranton where the plaintiff's and the defendant's offices are respectfully located are distinct and the two offices themselves a mile part, and it is well known that the different sections of a large city are often as unconnected as two separate towns would be.

But without laying too much stress upon the foregoing, I am persuaded that the circumstances under which the defendant was led to establish himself where he did are sufficient to warrant me in declining to interfere. They may not amount to an estoppel against the enforcement of the contract at law, but they do appeal to a chancellor to stay his hand. It is very clear that except for the encouragement given by the plaintiff, the defendant would never have established the Green Ridge office. He did it with the idea that the joint arrangement which they had definitely discussed would be carried out. On the strength of this the office was secured, the defendant becoming liable, as we may assume, for the rent of it, although for how long it does not appear. Following this in good faith the defendant bound himself in a partnership with the son for a term of years, fitting up his office at considerable expense, and went to work. The father, when he returns, sees what has been done and accepts it, and it is only when the two fall apart on the final and formal terms that he reverts to the original contract and asks that it be enforced. In view of these circumstances, I feel that I am doing the plaintiff no injustice in dismissing his bill and remitting him to the recovery of such damages for the breach

of the contract as he may be found entitled to in an action at law. Let a decree be drawn in accordance with these conclusions unless exception thereto be filed within twenty days.

Hummell vs. Hoffecker.

Common Pleas of Lackawanna Connty, No. 1234, September term, 1898. Certiorari-Mutilated Record.

It a constable has a writ in his hands, returnable at a certain hour, and by a mistake in the copy given to the defendant, or by misinformation as to contents, notifies the defendant to appear at another hour than that mentioned in the writ, the latter if misled to his hurt must look to the constable or his bondsmen for redress; the record being regular relief cannot be had through certiorari proceedings.

Where it is plain that the summons by which the justice obtained jurisdiction has been tampered with, the burden is cast upon the plaintiff to explain and defend it, failing to do this the judgment will not be sustained.

Certiorari.

CAREY, TAYLOR and LEWIS for exceptions.

ARCHBALD, P. J., November 19, 1898.-This is one of a set of ten cases brought at the same time against the defendant by several of his former employes. The record comes before us seriously questioned, the summons having plainly been tampered with by some one. That it was all right as originally written, is testified to by the justice, as well as by Mr. Timlin, the plaintiff's attorney, who assisted in making out this writ and the others which accompanied it. As thus drawn up, they were all made returnable Saturday, August 13, at eight o'clock in the afternoon, but in each of them, as they now appear the word "after" had had a line drawn through it and another word interlined in the space above it, and this interlined word has in turn been scratched out with a knife or eraser of some kind. A careful inspection of the different writs-the condition of each throwing light upon the rest-convinces us that that which was erased was the word "fore," or its misspelled counterpart, "four." These writs, therefore, at some stage of their existence by erasures and interlineations, were made to read as though returnable at eight o'clock in the forenoon instead of eight o'clock in the afternoon, as originally written. The same hand that made this change also made others. In several of the writs