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 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.

A RULE had been obtained calling on one Webster, an officer of the sheriff of Westmoreland, to show cause why he should not refund to one J. Sefton the sum of three guineas, alleged to have been extorted from him as fees, under color of a writ of fieri facias. It appeared that the sheriff having seized certain horses by virtue of a writ of fi. fa., J. S. set up a claim to the horses, upon which the sheriff took out a summons under the Interpleader Act, (1 & 2 Will. 4, c. 58, sec. 6,) and on the 27th August, 1845, Platt, B., ordered "that on the claimant paying into court the sum of £30, or finding security to that amount, and on payment to the sheriff of the possession money from the date of the order, the sheriff should withdraw from possession of the goods seized—the plaintiff to pay the possession money up to the date of the order, and the claimant from thence until the payment of money into court or security given; and that in default thereof, the sheriff to be at liberty to sell the goods and pay the proceeds of the sale into court; that a feigned issue be tried at the next Assizes of Westmoreland, between J. S., the claimant, and the plaintiff in the action, as to whether the goods, when seized, were the goods of the claimant. On the 1st September, J. S. paid £30 into court, pursuant to the above order, but the sheriff's officer refused to deliver up the horses unless he was paid, in addition to his possession money, the sum of three guineas, for the keep of the horses from the 27th August to the 1st September. The feigned issue remained untried.

Atkinson, in support of the rule.-The sheriff gained no property in the horses, as against the owner, and consequently was under no obligation to feed them. If the horses had died for want of food, the sheriff would not have been liable, as it was the owner's duty to keep them. The term "possession money," has a certain definite meaning, and does not include the keep of animals taken in execution. [Pollock, C. B.-The master reports to us that he should have allowed this charge under the following head, in the table of fees made in pursuance of the 1 Vict. c. 55, "For any duty not herein provided for, such sum as one of the masters of the Court of Queen's Bench or Exchequer may, upon special application, allow."] Under that provision, the sheriff should have made a special application to the court, or a judge, for an allowance of these costs.

POLLOCK, C. B.-The court will ultimately do justice between the parties, when the present issue is disposed of. In the mean time the question is, whether a sheriff who is ordered to deliver up cattle upon being paid "possession money," has a right to claim, in addition, the keep of the cattle. He has no such right. When the parties were before the learned judge at Chambers, the sheriff might have asked to be allowed these expenses, and if the judge thought it right he would have ordered accordingly.

The rule must be absolute, with costs.

GREEN V. PRICE.

AGES.

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. [Alderson, B.-If he takes the cattle of a third party, he has no right to detain them until he is paid for their keep.] It is not yet determined to whom the horses belong. [Pollock, C. B.-The sheriff has been ordered to deliver back the goods to the claimant, and he must do so.] He had lawful possession of the horses, and consequently a lien for their keep in addition to his possession money. [Alderson, B.—|

A party covenanted not to carry on trade in London or Westminster, or within the distance of six hundred miles from the same respectively. and, for the observance thereof, bound himself in the sum of £5,000, as by way of liquidated damages, and not of penalty. In an action brought for a breach of this covenant, by carry. ing on trade in London: Held, that the judge had rightly directed the jury, that the parties had fixed the amount of damages for themselves at £5,000.

In the Exchequer.-Green v. Price.

In this case the defendant had covenant- 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 hundred miles from the same respectively. For the observance of this covenant, the defendant bound himself, &c., in the sum of £5,000, as by way of liquidated damages, and not of penalty; and this action was brought for an alleged breach in London.

The court having held that this breach was good in law, although the rest of the covenant, not to practice within six hundred miles of the metropolis, was void as an unreasonable restraint of trade; a writ of inquiry, to assess the damages on this breach, came on to be executed before

Pollock, C. B., who told the jury that the parties had, by this deed, fixed the amount of damages for themselves at £5,000, and he directed them to find their verdict for that amount; which they did accordingly.

POLLOCK, C. B.-No rule ought to be The only foundagranted in this case. counsel is, that the covenant in this deed tion of the argument of the defendant's think the law will permit. But I certainextends to a wider space than the court ly cannot distinguish this case from that of Rawlinson v. Clark, which has been re

ferred to.

PARKE, B., concurred in the opinion expressed by the Lord Chief Baron.

ALDERSON, B.-I take the rule to be

clearly this: where there are several stipulations in a deed, the damages resulting from the breach of some of which must, from the very nature of the stipulations, be unliquidated, and of the others liquidated; and there is a general statement at the end, that, in the event of any breach of the provisions of the instrument, a cerdated damages-the court will construe tain sum shall be recoverable as liquiit as a penalty, on the ground that that which is described as liquidated damages was not, in reality, meant to be such. But where all the stipulations are of such a nature that the resulting damage from a breach of each one would necessarily be unliquidated, and the parties insert the of the contract, "liquidated damages general stipulation, that, for any breach are to be recovered; there the words "liquidated damages" are to be taken in their ordinary sense, and construed as gosarily vary in amount. [Alderson, B.verning all the preceding clauses. It is Can you distinguish this case from Rawlinson v. Clark? It is distinguishable in this that as the court has already held,

Jervis now moved for a rule to set aside the assessment of damages, on the ground of misdirection. The words "liquidated damages," in this deed, must be construed as meaning "by way of penalty," as was done by the courts in the cases of Kemble v. Farren, 6 Bing. 141, Boys v. Ancell, 5 Bing. N. C. 360, and Astley v. Weldon, 2 B. & P. 346. Where, indeed, the covenant is to do one particular thing, the words "liquidated damages" will be construed in their ordinary sense; but it is different where the covenant is to do sev

eral things, the damages resulting from

the breach of each of which must neces

*That was a motion similar to the present one, in an action brought against a surgeon and apothecary, who had entered into a covenant not to practice within certain limits. The case was moved by Crowder, and the rule refused on that point.

The cases of Kemble v. Farren, 6 Bing. 14, Davies

v. Penton, 6 B. & C. 216, Reilly v. Jones, 1 Bing.

302, Boys v. Ancell, 5 Bing. N. C. 630, Barton v. Glover, Holt N. P. c. 43, were referred to.

quite impossible to distinguish the present case from that of Rawlins v. Clark, which rule in this case, we must certainly give was before us yesterday. If we grant a

Mr. Crowder his rule in that also.

ROLFE, B.-I am of the same opinion. We could not decide otherwise, without saying that it is unlawful for parties to agree beforehand that a specified sum shall be payable by way of damages.

Rule refused.

New York

VOL. IV.]

ork

THE

Begal Observer.

NEW-YORK, MAY, 1846.

RESTRAINT OF TRADE.

[MONTHLY PART.

tion leaning always against such contracts, 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 made 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 binding if the object of it had been to prohibit the obligor from trading at all; the universality of such an interdiction being inconsistent with the plain dictates of public policy. The judgment on this occasion was pronounced in 1711, by Lord C. J. Parker, afterwards the famous Lord Chancellor Macclesfield.

Hall, (Year Book, 2 Hen. V. a fol. quinto.*) For suppose, as that case seems to be, that a poor weaver, having just met with a great loss, should in a fit of passion exclaim against his trade, and declare that he would not follow it any more, &c., at which instant some designing fellow should work him up to such a pitch as for a trifling matter to give a bond not to work at it again; and afterwards, when the necessities of his family and the cries of his children send him to the loom, should take advantage of the forfeiture and put the bond in suit. I must own I think this is such a piece of villany as it is hard to find a name for; and therefore I cannot but approve of the indignation that Judge expressed, though not his manner of expressing it."

The summary of the principle on which the case to which we are referring was decided, is thus expounded by his Lordship: "The general question upon this record is, whether this bond, being made in restraint of trade, be good? And we are all of opinion that a special consideration being set forth in the condition, showing it was reasonable for the parties to enter into it, the same is good; and that the true distinction of this case is not between promises and bonds, but between contracts with and contracts without consideration. Wherever a sufficient consideration appears to make it a proper and an useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained. But, however, with this constant diversity, namely, that where the restraint is general, not to exercise a particular trade throughout the kingdom, and where it is limited to a particular place, for the former of these must be void, being of no 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 ma intent 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-icy il irra al prison tang; il ust fait fine au Roy."

There does not appear to be any sufficient reason why the rule applicable to trades should not also apply to professions. In dealing with a case of the latter description, Lord Langdale, M. R., upon an agreement by a solicitor, for a valuable consideration, not to practice in that character in any part of Great Britain for twenty years, granted an injunction to restrain him from doing so; but not without some expressions of reluctance, his Lordship saying, "There was something in all contracts of this nature of which he entertained some doubt." Lord Eldon

Practical Points.-Broker-Contract-Negligence-Damages.

Practical Points.

BROKER-CONTRACT-NEGLIGENCE-
DAMAGES.

it would appear was similarly impressed. The great question in all such cases is, whether the restraint is reasonable. The language of Tindal, C. J., in Horner v. Greaves, 7 Bing. 743, is characteristically sagacious "We do not see how a better 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 afford 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 plaintiffs. The defendant moved in arrest of judgment, on the ground that the declaration which was in case, and did not state a good cause of action; and judgment went for the defendant. But upon a writ of error in the Exchequer Chamber, that judgment was reversed. The defendant thereupon carried the case by a further writ of error, to the House of Lords; where, after copious argument, the following opinions were delivered :

Now Lord Langdale, adopting this text, held, that as regarding the public interest it could not be said that the mere exclusion of one attorney, however able, would operate injuriously; and, as regarded the other question,-the protection of the party with whom the centract had been made, his Lordship observed, that the business of an attorney might be carried on by correspondence or by agents; and as it had been decided that an interdiction against practicing within 150 miles was not unreasonable, he did not see why the injunction sought here ought not issue.

In a recent case Nicholls v. Stretton, 7 Beav. 42, the same noble and learned person, proceeding on similar reasoning, granted an injunction as between two solicitors, perpetually restraining one of them from interfering or intermeddling with or being concerned as an attorney, agent, or otherwise for any client or correspondent of the other, or of his partner, in the business of an attorney, solicitor, or conveyancer. It is to be observed, however, that an appeal was taken against this last decision of Lord Langdale; and upon the hearing a case was directed to a court of law.*

Lord Brougham :-"It appears to me that the Court of Exchequer Chamber has come to a right conclusion, which renders it wholly unnecessary, in the view I take of the case, to ask whether the Court of Queen's Bench was right in its notion of the office of a broker, namely, that he was not to do more than to make contracts; that he was not to obtain ready money price for the goods he should sell, or even to sell goods consigned to him, which, indeed, is rather the office of a factor or a consignee than of a broker. But a broker, besides making contracts and passing the property in goods which are his proper functions, may specially contract to act as factor or consignee. He may thus contract to receive the consignments upon the trust reposed in him; he may undertake to have the control over the goods, and to deliver them for 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

BEFORE CERTIFICATE-EFFECT OF.

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, the absence of technical words is immaterial. It is enough that there is an averment that the undertaking of the defendant has not been fulfilled, and that, in consequence, loss has accrued to the plaintiffs."

Lord Cottenham assented to the law laid down by the Chief Justice, (Tindal,) in delivering the judgment of the Court of the Exchequer Chamber, namely, "That the duty of the defendant arose from his express contract so stated in the declaration, and not simply from his character of broker." "It is said (the noble and learned lord proceeded) that the proper remedy would have been by an action of assumpsit, and not by an action of the case. The authorities referred to disprove that proposition altogether, demonstrate that the proceeding here resorted to was the proper one, where there were duties imposed upon the party by an express contract, which duties were distinct from the ordinary duties of brokers as such."

Lord Campbell concurred. Judgment of the Exchequer Chamber affirmed with costs. Brown v. Boorman, 11 Clar. and Fin. 1.

ARREST-SHERIFF-ILLEGAL ENTRY.

A CASE of very considerable importance was some time since decided in the Exchequer of Pleas, in England, to which we would wish to call the attention of the profession.

A bankrupt, after a fiat was issued against him, and only three days before obtaining his certificate, gave a creditor a written memorandum, whereby, in consideration of services performed before the bankruptcy, the bankrupt promised to pay the creditor his debt by instalments of £76 13s. 4d. each, payable at future specified periods. One of the instalments being over-due and unpaid, an action was brought to recover the amount, to which the defendant pleaded never indebted, and his bankruptcy. The case came before the court upon a rule to substitute a verdict for the plaintiff for £76 13s. 4d. or for a nonsuit.

It was admitted, as a proposition established by many cases, that a debt, though barred in law by the certificate, constituted a sufficient consideration for a promise to pay it; and it was agreed, that by the provisions of the statutes, the promise must be in writing; that is, must be clearly expressed so as to bind the bankrupt personally; and that it must appear from it that the bankrupt undertook to pay notwithstanding his certificate.

A sheriff's officer for the purpose of arresting 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 behouse 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 conhouse. 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, for the purpose of arresting him or taking his goods, he is justified if he has reasonable grounds for believing that the party or his property is there; but here the party to be arrested was not found in the house of the plaintiff, and therefore the defendants were not justified. Morrish v. Murrey, 13, Mees. and W. 52.

The Court, after consideration, was unanimously of opinion, that a promise made before the certificate, was equally binding with a promise made after it; but it must be a promise that the bankrupt himself, and not his estate, which was distributable amongst his creditors, should pay, and it must be an unequivocal promise to pay, notwithstanding his certifi