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NOTES ON RECENT CASEs (ENGLISH). II9

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 (I 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 bond 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 on or become 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

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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 2s. paid into Court with denial of liability, but Mr. Justice Hawkins suggested that £2 18s. 114d. 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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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.

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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 light, the Court in this case of Peebles v. Crosthwaite found that the alteration by the defendant was a substantial one and interfered with the demised right of way. During the hearing of the case the plaintiff had died and the action had been continued by the executors, and these executors sold the business and premises to A. M. Peebles and Son, Limited. The company received possession of the stock, affixed its name thereon, and its address was duly registered at Somerset House; but the property was not assigned to the company, and no licence for assignment was asked for. So far as concerned this portion of the property sold, the sale was incomplete. The executors were shareholders in the new company, and two were directors. The directors nevertheless claimed that the covenant had been broken, and the lease was terminated, as there had been notice requiring possession. Mr. Justice Romer, however, did not accept this view, and said the defence was not established. The plaintiffs’ executors had not parted with the possession. Possession had been retained for one reason, because it was desired that no breach of the covenant should be committed, and also because the purchase by the company was not fully completed, and it was not desired that while the action was pending, the rights of the parties should be interfered with. The executors still had the legal possession, and had merely allowed the company to use the premises for the purposes of the company. Doing so was not a breach of the covenant. If a lessee retained possession, he did not commit a breach of such a covenant by allowing other persons to use the premises. For the purpose of creating a forfeiture, it was not necessary to hold that persons had given up possession in such a case when it was clearly contrary to their intention to do so. The plaintiffs were, therefore, entitled to an injunction restraining the defendants from using the staircase and premises in their

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present condition so far as interfered with the right of way granted by the lease.

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“In your letter you state that Mr. F. N. requires a reference. I shall be very pleased to be one, and in the event of your failing to pay, I will undertake to be responsible for it.” Is such a letter as this a guarantee of the rent (Kennaway v. Treleaven, 5 M. & W. 498; Brogden v. Metropolitan Railway Company, L.R. 2 A.C. 666) and an agreement to pay the rent, or is the agreement inchoate (MacIver v. Richardson, I M. & S. 537) * This was the point before Mr. Justice Wright in the case of Nash v. Spencer. The plaintiff desired to let a house, and negotiated with a lady to let it to her at a certain rent, but subsequently, after inquiries, refused to do so on her sole responsibility. She then sent the plaintiff the foregoing letter from the defendant. The plaintiff then let the house to the lady, but such rent having become due and not paid, an action was brought against the defendant on the letter. The letter, however, was held not to be an agreement at all. It simply stated a willingness on the part of the defendant to become bound if asked to do so; so that though the letting was clearly due to the receipt by the plaintiff of the letter, yet the defendant was put under no legal liability by it. As has been aptly stated, there are lots of people who never pay rent, and would not if they could avoid it. The proper course for the landlord to do was to have asked for the guarantee, but, failing that, the

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The Intricacies of Statutes. According to sect. 92 of the Lands Clauses Act, 1845, a party cannot be required to sell a part only of his lands.

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