In the Exchequer.—Gaskell v. Sefton-Green v. Price. upon payment of a certain sum into court, and He can have no lien, for the order directs of his possession money, to deliver the horses him

es him to give up the horses on receiving

to give up the horses on receiving to the claimant. Held, that the sheriff had no right to detain the horses until he was paid for possession money. their keep

Atkinson, in support of the rule.-The

sheriff gained no property in the horses, A RULE had been obtained calling on one as against the owner, and consequently Webster, an officer of the sheriff of West- was under no obligation to feed them. If moreland, to show cause why he should the horses had died for want of food, the not refund to one J. Sefton the sum of sheriff would not have been liable, as it three guineas, alleged to have been ex- was the owner's duty to keep them. The torted from him as fees, under color of a term “possession money," has a certain writ of fieri facias. It appeared that the definite meaning, and does not include the sheriff having seized certain horses by vir- keep of animals taken in execution. [Poltue of a writ of fi. fa., J. S. set up a claim lock, C. B.—The master reports to us that to the horses, upon which the sheriff took he should have allowed this charge under out a summons under the Interpleader the following head, in the table of fees Act, (1 & 2 Will. 4, c. 58, sec. 6,) and on made in pursuance of the 1 Vict. c. 55, the 27th August, 1845, Platt, B., ordered "For any duty not herein provided for, " that on the claimant paying into court such sum as one of the masters of the the sum of £30, or finding security to that Court of Queen's Bench or Exchequer amount, and on payment to the sheriff of may, upon special application, allow.”l the possession money from the date of the Under that provision, the sheriff should order, the sheriff should withdraw from have made a special application to the possession of the goods seized—the plain-court, or a judge, for an allowance of tiff to pay the possession money up to the these costs. date of the order, and the claimant from thence until the payment of money into POLLOCK, C. B.—The court will ulticourt or security given; and that in de mately do justice between the parties, fault thereof, the sheriff to be at liberty to when the present issue is disposed of. In sell the goods and pay the proceeds of the the mean time the question is, whether a sale into court; that a feigned issue be sheriff who is ordered to deliver up cattle tried at the next Assizes of Westmore-upon being paid “possession money,” has land, between J. S., the claimant, and the a right to claim, in addition, the keep of plaintiff in the action, as to whether the the cattle. He has no such right. When goods, when seized, were the goods of the the parties were before the learned judge claimant. On the 1st September, J. S. at Chambers, the sheriff might have asked paid £30 into court, pursuant to the above to be allowed these expenses, and if the order, but the sheriff's officer refused to judge thought it right he would have ordeliver up the horses unless he was paid, 'dered accordingly. in addition to his possession money, the The rule must be absolute, with costs. sum of three guineas, for the keep of the horses from the 27th August to the 1st September. The feigned issue remained untried.

GREEN V. PRICE. Temple showed cause.—A sheriff is entitled to the costs of the keep of cattle RESTRAINT OF TRADE-LIQUIDATED DAMwhich he has taken in execution. (Alder

AGES. son, B.-If he takes the cattle of a third party, he has no right to detain them until A party covenanted not to carry on trade in Lonhe is paid for their keep.] It is not yet

don or Westminster, or within the distance of

six hundred miles from the same respectively. determined to whom the horses belong.

and, for the observance thereof, bound himself [Pollock, C. B.—The sheriff has been or

in the sum of £5,000, as by way of liquidated dered to deliver back the goods to the damages, and not of penalty. In an action claimant, and he must do so.) He had brought for a breach of this covenant, by carry.

ing on trade in Loxdon: Held, that the judge lawful possession of the horses, and con

had rightly directed the jury, that the parties sequently a lien for their keep in addition

had fixed the amount of damages for themselves to his possession money. [Alderson, B.-1 at £5,000.

In the Exchequer.—Green v. Price. In this case the defendant had covenant-l on the authority of Mallan v. May, 11 ed, by deed, not to carry on the trade or Mee. & W. 653, that one of the stipulabusiness of a perfumer, toyman and hair tions in this deed was void, as being merchant, or any other business lately against law, the same amount of damages carried on in copartnership by him and cannot now be recoverable for a breach the deceased, of whom the plaintiff was of a part, which the deed has fixed as the executor, within the cities of London and compensation for a breach of the whole. Westminster, or within the distance of six

POLLOCK, C. B.-No rule ought to be hundred miles from the same respectively. For the observance of this covenant, the

granted in this case. The only foundadefendant bound himself, &c., in the sum

tion of the argument of the defendant's

counsel is, that the covenant in this deed of £5,000, as by way of liquidated dam

extends to a wider space than the court ages, and not of penalty; and this action

think the law will permit. But I certainwas brought for an alleged breach in Lon

ly cannot distinguish this case from that don.

of Rawlinson v. Clark, which has been reThe court having held that this breach was good in law, although the rest of the

ferred to. covenant, not to practice within six hun

PARKE, B., concurred in the opinion dred miles of the metropolis, was void as

expressed by the Lord Chief Baron. an unreasonable restraint of trade; a writ of inquiry, to assess the damages on this

ALDERSON, B.—I take the rule to be breach, came on to be executed before se

clearly this : where there are several stipPollock, C. B., who told the jury that the

ulations in a deed, the damages resulting parties had, by this deed, fixed the amount

from the breach of some of which must, of damages for themselves at £5,000, and

from the very nature of the stipulations, he directed them to find their verdict for he

| be unliquidated, and of the others liquithat amount; which they did accord

dated; and there is a general statement ingly.

at the end, that, in the event of any breach Jervis now moved for a rule to set aside

of the provisions of the instrument, a certhe assessment of damages, on the ground

tain sum shall be recoverable as liquiof misdirection. The words “liquidated

dated damages—the court will construe damages,” in this deed, must be construed

it as a penalty, on the ground that that as meaning " by way of penalty," as was

which is described as liquidated damages done by the courts in the cases of Kemble

was not, in reality, meant to be such. But v. Farren, 6 Bing. 141, Boys v. Ancell,

where all the stipulations are of such a 5 Bing. N. C. 360, and Astley v. Weldon,

nature that the resulting damage from a 2 B. & P. 346. Where, indeed, the cove

" | breach of each one would necessarily be nant is to do one particular thing, the

unliquidated, and the parties insert the words “liquidated damages" will be con

general stipulation, that, for any breach strued in their ordinary sense; but it is

of the contract, “liquidated damages ” different where the covenant is to do sev

| are to be recovered; there the words “lieral things, the damages resulting from

quidated damages” are to be taken in the breach of each of which must neces

their ordinary sense, and construed as gosarily vary in amount. (Alderson, B.

verning all the preceding clauses. It is

quite impossible to distinguish the present Can you distinguish this case from Rawlinson v. Clark ?*] It is distinguishable

case from that of Rawlins v. Clark, which

was before us yesterday. If we grant a in this : that as the court has already held,

rule in this case, we must certainly give * That was a motion similar to the present one, Mr. Crowd

Mr. Crowder his rule in that also. in an action brought against a surgeon and apothe-|| cary, who had entered into a covenant not to prac

Rolfe, B.-I am of the same opinion. tice within certain limits. The case was moved We could not decide otherwise, without by Crowder, and the rule refused on that point. saying that it is unlawful for parties to The cases of Kemble v. Farren, 6 Bing, 14, Davies

| agree beforehand that a specified sum v. Penton, 6 B. & C. 216, Reilly v. Jones, 1 Bing. 302, Boys v. Ancell, 5 Bing. N. c. 630, Barton v. shall be payable by way of damages. Glover, Holt N. P. c. 43, were referred to.

Rule refused.

New Pork Begal Observer


Vol. IV.]

NEW-YORK, MAY, 1846. Monthly Part.

tion leaning always against such conRESTRAINT OF TRADE.

tracts, and in favor of honest industry ; In the celebrated case of Mitchell v. there being a mischief in them, not only Reynolds, 1 Peere Wms., the Court of private, as preventing a man from gaining Queen’s Bench determined that a bond, his livelihood, but public, as effecting the or promise to restrain one-self from trad- general prosperity of the realm. And this ing in a particular place, when inade upon will account for all the older resolutions reasonable consideration, was good. But to be found in the books on the subject, it was held that it would not have been and will even, as Lord Macclesfield obso without such sufficient consideration to served, excuse the vehemence of Judge support it; neither would it have been Hall, (Year Book, 2 Hen. V. a fol. quinbinding if the object of it had been to pro- to.*) For suppose, as that case seems to hibit the obligor from trading at all; the be, that a poor weaver, having just met universality of such an interdiction being with a great loss, should in a fit of passion inconsistent with the plain dictates of exclaim against his trade, and declare that public policy. The judgment on this oc- he would not follow it any more, &c., at casion was pronounced in 1711, by Lord which instant some designing fellow C. J. Parker, afterwards the famous Lord should work him up to such a pitch as for Chancellor Macclesfield.

a trifling matter to give a bond not to The summary of the principle on which work at it again; and afterwards, when the the case to which we are referring was necessities of his family and the cries of decided, is thus expounded by his Lord- his children send him to the loom, should ship: “The general question upon this take advantage of the forfeiture and put record is, whether this bond, being made the bond in suit. I must own I think this in restraint of trade, be good ? And we is such a piece of villany as it is hard to are all of opinion that a special consider- find a narae for; and therefore I cannot ation being set forth in the condition, but approve of the indignation that Judge showing it was reasonable for the par- expressed, though not his manner of exties to enter into it, the same is good ;) pressing it." and that the true distinction of this case is There does not appear to be any suffinot between promises and bonds, but be- cient reason why the rule applicable to tween contracts with and contracts without trades should not also apply tu professions. consideration. Wherever a sufficient con- In dealing with a case of the latter desideration appears to make it a proper scription, Lord Langdale, M. R., upon an and an useful contract, and such as can- agreement by a solicitor, for a valuable not be set aside without injury to a fair consideration, not to practice in that charcontractor, it ought to be maintained. acter in any part of Great Britain for But, however, with this constant diversity, twenty years, granted an injunction to renamely, that where the restraint is gener- strain him from doing so; but not withal, not to exercise a particular trade out some expressions of reluctance, his throughout the kingdom, and where it is Lordship saying, “There was something limited to a particular place, for the for- in all contracts of this nature of which he mer of these must be void, being of no entertained some doubt." Lord Eldon benefit to either party, and only oppressive to one of them.” It is therefore ne-! * Hall it appears expressed himself thus:-"A cessary to show the consideration, and the

| mu ipient vous purres aver demurre sur luy que le decision of the court will be governed by countre common ley; et per Dien si le plaintiff fuit

obligation est void eo que le condition est, en the special matter shown; the presump-licy il irra al prison taug; il ust fait fine au Roy." Practical Points.—Broker-Contract-Negligence—Damages. it would appear was similarly impressed. The great question in all such cases is,

Practical Points. whether the restraint is reasonable. The language of Tindal, C. J., in Horner v.

BROKER-CONTRACT-NEGLIGENCEGreaves, 7 Bing. 743, is characteristically sagacious :-" We do not see how a bet

DAMAGES. ter test can be applied to the question In January, 1836, the plaintiffs, linseedwhether this is or is not a reasonable re- crunchers at Branbridges, in Kent, emstraint of trade, than by considering ployed the defendant, an oil-broker in whether the restraint is such only as to London, to sell for them certain quantities asfurd a fair protection to the interests of of linseed oil. A sale was effected by the the party in favor of whom it is given, and defendant, to whom the plaintiff consignnot so large as to interfere with the inter- ed the commodity to be delivered by him to ests of the public. Whatever restraint is the buyer upon payment of the price. The larger than the necessary protection of defendant, however, notwithstanding this the party, can be of no benefit to either. special agreement, delivered the oil withIt can only be oppressive; and if oppres-out receiving payment; and the action sive, it is in the eye of the law unreason- was brought to recover damages in reable. Whatever is injurious to the inter- spect of the loss consequently sustained. ests of the public, is void on the ground The cause was tried before Lord Denman, of public policy."

and the jury returned a verdict for the Now Lord Langdale, adopting this text. plaintiffs. The defendant moved in arheld, that as regarding the public interest rest of judgment, on the ground that the it could not be said that the mere exclu- declaration which was in case, and did sion of one attorney, howeyer able, would not state a good cause of action; and operate injuriously; and, as regarded the judgment went for the defendant. But other question,—the protection of the upon a writ of error in the Exchequer party with whom the centract had been Chamber, that judgment was reversed. made,-his Lordship observed, that the The defendant thereupon carried the case business of an attorney might be carried by a further writ of error, to the House on by correspondence or by agents; and of Lords; where, after copious argument, as it had been decided that an interdiction the following opinions were delivered :against practicing within 150 miles was Lord Brougham :-“ It appears to me not unreasonable, he did not see why the that the Court of Exchequer Chamber injunction sought here ought not issue. has come to a right conclusion, which

In a recent case Nicholls v. Stretton, 7 renders it wholly unnecessary, in the view Beav. 42, the same noble and learned I take of the case, to ask whether the person, proceeding on similar reasoning, Court of Queen's Bench was right in its granted an injunction as between two so- notion of the office of a broker, namely, licitors, perpetually restraining one of that he was not to do more than to make them from interfering or intermeddling contracts; that he was not to obtain ready with or being concerned as an attorney, money price for the goods he should sell, agent, or otherwise for any client or cor- or even to sell goods consigned to him, respondent of the other, or of his partner, which, indeed, is rather the office of a in the business of an attorney, solicitor, factor or a consignee than of a broker. or conveyancer. It is to be observed. | But a broker, besides making contracts however, that an appeal was taken against and passing the property in goods which this last decision of Lord Langdale; and are his proper functions, may specially upon the hearing a case was directed to a contract to act as factor or consignee. court of law.*

He may thus contract to receive the con

signments upon the trust reposed in him ; * We understand this case will shortly be tried. he may undertake to have the control So soon as we get the decision, we shall lay it be- over the goods, and to deliver them for fore our readers.

the price stipulated; which in this case was a ready-money price. The breach is, that he delivered them on credit, whereby the plaintiffs were damnified. I think Practical Points. ---Arrest-Sheriff— Illegal Entry-Promise to pay made by Bankrupt before Certificate. the authorities show that this declaration | PROMISE TO PAY MADE BY BANKRUPT is, after verdict, sufficient. After verdict,

verdict, BEFORE CERTIFICATE--EFFECT OF. the absence of technical words is immaterial. It is enough that there is an aver- A CASE of very considerable importance ment that the undertaking of the defend- was some time since decided in the Exant has not been fulfilled, and that, in con- chequer of Pleas, in England, to which sequence, loss has accrued to the plain- we would wish to call the attention of tiffs."

Lord Cottenham assented to the law the profession. laid down by the Chief Justice, (Tindal,) A bankrupt, after a fiat was issued in delivering the judgment of the Court of against him, and only three days before the Exchequer Chamber, namely, “ That obtaining his certificate, gave a creditor a the duty of the defendant arose from his written memorandum, whereby, in conexpress contract so stated in the declara- sideration of services performed before tion, and not simply from his character of the bankruptcy, the bankrupt promised to broker.” “It is said (the noble and pay the creditor his debt by instalments learned lord proceeded) that the proper of £76 13s. 4d. each, payable at future remedy would have been by an action of specified periods. One of the instalments assumpsit, and not by an action of the being over-due and unpaid, an action was case. The authorities referred to dis- brought to recover the amount, to which prove that proposition altogether, demon- the defendant pleaded never indebted, strate that the proceeding here resorted to and his bankruptcy. The case came bewas the proper one, where there were du- fore the court upon a rule to substitute a ties imposed upon the party by an ex-verdict for the plaintiff for £76 13s. 4d. press contract, which duties were distinct or for a nonsuit. from the ordinary duties of brokers as It was admitted, as a proposition essuch.

| tablished by many cases, that a debt, Lord Campbell concurred. Judgment though barred in law by the certificate, of the Exchequer Chamber affirmed with constituted a sufficient consideration for a costs. Brown v. Boorman, 11 Clar. and I promise to pay it; and it was agreed, that Fin. 1.

by the provisions of the statutes, the promise must be in writing; that is, must be

clearly expressed so as to bind the bankARREST-SHERIFF-ILLEGAL ENTRY. rupt personally; and that it must appear

from it that the bankrupt undertook to A sheriff's officer for the purpose of arrest- påy notwithstanding his certificate. ing a woman under a ca. sa. entered and. On the part of the defendant it was consearched the house of a third person. It tended, that the promise made by him turned out that the woman was not in the was invalid, inasmuch as it was made be. house at the time; and this entry was fore the certificate, and that the certifitherefore decided to be illegal, although cate operated as a statutory release, and the woman resided there immediately be- rendered the promise no longer obligatofore the entry, and the officer had reason- ry; whilst on the other hand it was arable cause to suspect that she was in the gued, that where there was the same con. house. Alderson, B. observed :-"A par- sideration to support a promise made ty who enters the house of a stranger, to before and after the certificate, there was search for and arrest a defendant, can be no distinction in principle between the one justified only by the event. If a sheriff promise and the other. enters the house of the defendant himself, The Court, after consideration, was for the purpose of arresting him or taking unanimously of opinion, that a promise his goods, he is justified if he has reason- made before the certificate, was equally able grounds for believing that the party binding with a promise made after it; but or his property is there ; but here the it must be a promise that the bankrupt party to be arrested was not found in the himself, and not his estate, which was house of the plaintiff, and therefore the distributable amongst his creditors, should defendants were not justified. Morrish pay, and it must be an unequivocal prov. Murrey, 13, Mees. and W. 52. mise to pay, notwithstanding his certifi

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