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“ benefit of the persons interested in the winding-up.” (See Dicey's “ Conflict of Laws,” rule 68, p. 343 ; Westlake, 3rd edition, p. 154 ; in re Oriental Inland Steam Co., L.R. 9 Ch. 557). Secondly: the well-established rule that “a valid

foreign judgment in rem in respect of the title to a "movable gives a valid title to the movable in England to the extent to which such title is given by or under the "judgment in the country where

the country where the judgment is pronounced.” (See Dicey, rule 102, p. 427-429; and see Castrique v. Imrie, L.R. 4 H.L. 414; Cammell v. Sewell, 5 H. & N. 718, etc.)

As regards the former of these two points, the difficulty suggested by Westlake and referred to by Dicey (p. 343, note 3) did not arise in the present case, as the Plaintiff Company was clearly domiciled in England. Henn Collins, 7., based his decision on the fact that the German judgment was one in rem and not merely in personam, and that the was therefore distinguishable from Hunter v. Potts (4 T.R. 182), Sill v. Worswick (1 H. Bl. 665), and similar cases. The German judgment, it is to be noted, declared that the defendants not only had a lien, but that this lien took priority over other claims, except those for the necessary expenses of prosecuting the voyage and for wages and disbursements.


Local Situation of Property. The Court of Appeal in Smelting Co. of Australia v. Commissioners of Inland Revenue (Times L.R., Vol. 13, p. 84, and W.N. 1896, p. 167): held, that a licence to use a patent in New South Wales was not "property locally situate out “ of the United Kingdom” within the meaning of Sect. 59 of the Stamp Act, 1891. The case was decided on the peculiar wording of the Act itself, but is interesting for the dictum of Lopes, L.J., to the effect that “the property now in question could not be said to be locally situate anywhere,” and of Rigby, L.J., that “although for the purposes of Probate Duty it had been held that all property was

capable of being localised, he did not think that for any other

purposes incorporeal rights could be said to have any local situation.” (Compare the cases cited by Dicey, “Conflict of Laws,” pp. 318-322.)

In connection with a similar point, it is to be observed that the House of Lords has affirmed the decision of the Court of Appeal in the case of Attorney-General v. Sudeley (1896, 1 Q.B. 354). (See W.N. 1896, p. 162, and Times L.R., Vol. 13, p. 38.) We have already commented on the case in former issues. (See" Current Notes,” February and May, 1896.)

Other Cases. The cases (referred to in our last issue) of In re Clark and In re Doetch have now been fully reported in L.R. 1896, 2 Q.B. 476 and L.R. 1896, 2 Ch. 836 respectively.

John M. GOVER.


Customary Heriots. WHAT

HAT has been called an interesting black letter case

has recently been before the Court of Appeal. The facts of the case shewed that the plaintiff was lord of the manor, and defendants were the executors of George Christy, deceased. Christy was admitted tenant of certain copyhold tenements of the manor, which included two tenements known as Scotts and Langmead. Christy subsequently died seised of the tenements, and, at the time of his death, was not possessed of any beasts then being, or which had ever been, within the manor; but he died possessed of two beasts outside the manor. The defendants, not knowing that there was any claim to them as heriots, sold them in order to realise their testator's estate. The plaintiff claimed that he was entitled on the death of Christy to the best beast in respect of each of the tenements, Scotts and Langmead, and sought to recover from the defendants for their alleged wrongful seizure of the beasts. The contention on behalf of the defendants was that the heriots could not be claimed by heriot custom because the custom to take a heriot could not apply to a beast within the manor, but in this case the tenant never had any

beast within the manor. Heriots could not be claimed by heriot service, inasmuch as heriot service only applied to fee tenants of the manor, and not to copyholders, being presumed to be founded on a reservation in a deed, and was in the nature of a rent service. The Divisional Court, however, held that heriot service might be applicable to copyhold tenements, and here, though Scotts was not a heriotable tenement Langmead was, and, therefore, judg. ment resulted for the plaintiff for the value of one beast. This judgment was the reason of the appeal, but the Court of Appeal supported the decision of the Divisional Court, and dismissed the appeal. The Master of the Rolls in giving judgment pointed out that it was contended for the defendants that this was a customary heriot, and the custom was only applicable so as to render beasts upon the manor at the time of the tenant's death liable to seizure. The heriot was admitted by the plaintiff for the purpose of argument to be a customary heriot, but alleged that even then the beasts could be seized outside the The various authorities shewed that on

the happening of the event which gave the right to the succession, the property in the beast passed to the lord of the

There was no necessity for the lord to have



seized it. If he marked it before or fixed it by description, in either case it would be identified and would pass to him. If, therefore, it was a customary heriot, the lord could seize it wherever it was, and the judgment of the Divisional Court must be affirmed. Reference was made during the case to Parker v. Sage (1 Show 81), and Austin v. Bennett (1 Salk 356). This decision supports the ancient statutory provisions and cases. A lord has formerly to seize immediately after the heriot accrued, as his right would be concluded by a bonâ fide and legal sale by the executors in market overt, by which the property in any goods so sold was effectually transferred. According to 13 Eliz., c. 5, the lord's claim could not be defeated by a will or gift. If a tenant had no beast for a heriot, the lord was defeated, but, according to the old case of Trinity College v. Brown (1 Vern 441), a bill in equity lay to discover the best beast of a tenant. Presumably in Western v. Bailey the lord has got “the best beast.”




Restraining Covenants. In these days of fierce competition it is getting more and more usual to insert in written agreements for the employment of a clerk, manager, or on sale of a business, a clause that the clerk, manager, or purchaser shall not directly carry

or becoine connected with or interested as principal, clerk, partner, or agent in any business or branch of business similar to the principals or vendors. The time for such restriction is often limited to two years, and a radius of, perhaps, three miles from a certain spot is stated, for the exclusion of the competitor and for any offence, liquidated damages may be fixed on. In construing these provisions the Courts are not inclined to fix a hard and fast line, as the recent case of Newsam and Another v. Gosheron shews, where the facts were similar to those


sect. 4:

noted. In that case the defendant, an auctioneer, had sold his business, entering into the restraining covenant, and, subsequently, in face of the covenant tried to sell property at the Tokenhouse Mart in the prohibited time, but was not successful. The plaintiff sought an injunction and claimed damages for this breach, and that such offering of the property for sale was carrying on the business of an auctioneer within the meaning of 8 and 9 Vict., c. 15,

On the other hand, the defendants contended that the covenant could not apply to an isolated case like this, but only if the business was carried on systematically. In favour of this view, reference was made to the case of Turner v. Evans (2 E. and B. 512), where such a covenant as the foregoing was discussed by Lord Campbell, who said he was of opinion that if this was done systematically, it was carrying on the business of a wine merchant.

If done now and then to oblige an old customer, or the like, it would be no breach of the contract, for that would not be carrying on the business; but there it was done

done on system. Mr. Justice Crompton thought, too, that the question was one of fact, was he doing this on system ? For he would not be carrying on business if he did it only now and then. Mr. Justice Hawkins, in the present case, left the point to the jury as to whether the defendant had carried on business within the meaning of the covenant, and they decided it in the negative. Supposing, however, it should be afterwards held that it was carrying on business, the damages were assessed at the smallest coin in the realm. The judgment being for the defendant, he was entitled to re-payment of £2 25. paid into Court with denial of liability, but Mr. Justice Hawkins suggested that £2 18s. 11 d. only should be taken out, letting the farthing remain as security. On the subject of auctioneers genial Douglas Jerrold has an amusing skit, where he states how an auctioneer proceeded to descant upon the extraordinary

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