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" 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 ve 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.

VI.-NOTES ON RECENT CASES (ENGLISH).

Customary Heriots.

WHAT 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, judgment 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 manor.

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

manor.

.

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 (I 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.”

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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

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, sect. 4. 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 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. Id. 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

attractions of an ossified heart, late the personal property of a distinguished lawyer, assuring his auditory that never since hearts began to beat had there been a heart "so peculiarly and so thoroughly ossified.” On this a slight titter was heard among the company, when the auctioneer ventured to observe in a low tone audible in every part of the room, that the heart was worth double the sum bid for it, if only to be manufactured into chess men or tobacco stoppers. This sly jest, to the astonishment of its author, convulsed his audience; and with renewed hopes of bidders, and a rubicund face, shining like a carbuncle with self-complacency, the auctioneer proceeded with his task; and, to our mind, proved himself especially worthy of his office; for the true auctioneer would “put up” some of the plagues of Israel, with a grave assurance that there had never been “such locusts,” and that probably never such a favourable opportunity would again present itself to the lovers of entomology.

Sale of Private Business to a Limited Company. A lease contained a proviso for re-entry by the lessors in case of breach of the lessee's covenants, and one of these covenants was, that he, his executors, administrators or assigns would not assign, underlet or part with the possession of the demised premises without the previous licence in writing of the lessors. It appeared that the lessee took a lease of the first and second floors of a building together with the use, in common with all other persons entitled to use the same and during usual business hours, of the entrance door on the ground floor, and the other passages and staircases leading from that door to this floor. The lessee then, without obtaining any leave, constructed a lift, and thereby reduced the space where the stairs were, cut away a landing and diminished the lighi,

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