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LL.B.. in 111 OF THE INNEB TEMPLE, BAEEISTEE-AT-LAW, Sometime Scholar of Trinity College, Cambridge, A3TD a. BERTRAM STOCKER, KING'S COLLEGE, CAMBEIDGE, Managing Director of the Scholastic, Clerical and Medical Association (Limited). LONDON;: STEVENS AND SONS, LIMITED, 119 & 120, CHANCEEY LANE, 1895. VH, LOITDOS: PBCCTKD BT C. F. ROWOBTH, GREAT NEW STREET, FJi'lTKH LANE, E.G. I c? tt. V. PREFACE. ANYONE who has had occasion to peruse many Medical Agreements especially those relating to Partnerships will have been struck by the diversity of the principles upon which they have been drawn. The reason is not far to seek. No text-book has hitherto dealt, or, indeed, attempted to deal, seriously with the subject, although it seems to demand special treatment. Each draftsman has been left to evolve for himself a scheme of partnership, unaided by any adequate experience of the requirements of the case, or by any knowledge of the customs which prevail in the profession. It is hoped that this little Work may tend to establish more uniformity in these Agreements. The Book is divided into two Parts. Part I. for which Mr. Stocker is mainly responsible gives the draft agreements in a form in which they may be most readily utilized. To such clauses as present any peculiar features are appended explanatory notes. Clauses which will be required only in exceptional circumstances, yi PREFACE. and alternative clauses given whenever they set MM to be called for are enclosed in square brackets. The Chapters on the Agreements are preceded by a few remarks upon the value of medical partnerships and practices, without which the Work would hardly be complete. Mr. Stacker's claim to speak with authority upon the subject is based upon many years' experience as a medical agent of the relations existing between medical men, and the perusal of a large number of medical partnership and transfer agreements, with special reference to the points where, in practice, they have proved weak or unworkable. Part II. is entirely the work of Mr. Barnard. It contains the Partnership Act of 1890, with notes on such of the clauses as are especially likely to affect medical men in partnership; a Chapter on Goodwill and Restriction on Practice, Avith an Appendix of Cases bearing on the latter subject; and short Chapters on Introductions to Patients, and Assistants. June, 1895. CONTENTS, PAGE PREFACE - v TABLE OF CASES REFERRED TO - - - - ix Part I. THE AGEEEMENTS AND PEACTICAL NOTES THEEEON. CHAPTER I. Value of Practices - - - 1 II. Form of Articles of Partnership between two Medical Men - 6 III. Form of Deed for the Assignment of a Medical Practice - - - - 31 IV. Agreement between Principal and Assistant 48 V. Assistantship with a view to Partnership - 52 Part II. NOTES ON THE LAW. VI. The Partnership Act, 1890 - - 54 VII. Goodwill and Eestrictions on Practice - - 108 Appendix of Cases on Eestrictive Covenants 143 VIII. Introduction to Patients - - 194 IX. Assistants - - - - - 207 INDEX 225 TABLE OF CASES EEFERRED TO. PAGE AAS v. Benham 85 AMmrst v. Jackson 96 Allen v. Kilbre 88 Ambler v. Bolton 94 Amor v. Fearon 218 Anderson v. Anderson 92 Anon. (2 K. & J. 441) 91 Apothecaries Co. v. Allen .... 210 v. Greenwood 210 Arundell v. Bell 110 Astle v. Wright 98 Astley v. Weldon 135 Atkyns v. Kinnier 129,165 Attwood v. Maude 100 Austen v. Boys 108 Badeley v. Consolidated Bank 59, 60 Bainesv. Geary 129, 131, 186 Baker v. Hedgecock 124 Barber, Ex parte 69 Barton v. Capewell Continental Patents Co 135 Batho v. Tunks 131 Bayley v. Kimmell 215 Beeston v . Collyer 214, 218 Belfield v. Bourne 55, 95, 103 Ben-well, Ex parte 87 v. Inns.. 125, 131, 167, 187 Besch v. Frolich 92 Blissett v. Daniel 80, 81 Boast v. Firth 221 Bond v. Brereton 217 Bozon v. Farlow 198 Brace v. Calder 222 Brasier v. Hudson 88 Bristol, &c. Bread Co. v. Maggs 114 Broxham v. Wagstaffe 217 Buckingham v. Surrey and Hants Canal Co 216 Bullin v. Teece 126 Bunn;. Guy 194, 199, 200 Bury t>. Allen 63, 98 C. PAGE Callo v. Brouncker 218 Games v. Nesbitt . ..130, 136, 138, 139, 173, 222 Chesman v. Nainby 127, 144 Clark v. Leach 82 Clay gate v. Batchelor 118 Collins, Ex parte 87 v. Barker 88 v.Locke.... 132,133,178 Const v. Harris 70, 71 Cooper v. Southgate 129 v. Whittingham 142 Coventry v. Barclay 67, 70 Cox v. Willoughby 83 Cruttwell v. Lye 200 Cuckson v. Stones . . 220 Davies v. Davies 121, 124 v. Makuna ..89, 131, 179, 208, 210, 211 Davis v. Mason . . . .126, 130, 145, 176, 177 le 116 Daw v. Herring 83, 84 Dawson v. Beeson 112 De la Rosa v. Prieto 213 Delhasse, Ex parte 59 Dyers' Case, The 118, 120 Edmonds v. Robinson 96 Egerton v. Earl Brownlow . . 120 Elliott v. Clayton 87 Elves v. Crofts 124 Essell v. Hayward 92, 93 Everton v. Lynch 131 Evans v. Ware , . 223 Farr v. Pearce 108, 110 Farrow v. Wilson 217 b TABLE OF CASES REFERRED TO. CAM Fawoett v. Cash 214 Featheratonhaugh r. Fenwiok. 85 v. Turner. . 76 Fewings v. Tisdall 222 Fox v. 8card....l26, 137, 138, 171 Freeland p. Stansfeld 88, 96 Gent r. Harrison 138 Giles r. Hart 169 Graveley p. Barnard .... 124, 130, 134, 175 Green v. Price 158, 160 Haig 9. Gray 88 Hanckc r. Hooper 63, 219 Harmor r. Cornelias 219 Hastings v. Whitley .... 123, 160 Hayward 9. Young 126, 146 Hilton r. Eckereley 132, 133 Hitchcock r. Coker 122, 123, 125, 149, 161, 176 Homer p. Graves 126, 147 Howard r. Woodward 138, 175 Howarth v. Brearley 89, 212 Hunlocko v. Blacklowe . .130, 143, 157 Hunter r. Dowling 69, 72 I hit man v. Boulnois . , . 214 Ipswich Tailors' Case 118 J.p.S 91 Jackson p. Sedgwick 70 Jacoby r. Whitmore 131, 185 Johnstone r. Barkley 132 Jones r. Heavens 130, 140 r. Noy 91 Judson P. Bowden 130,204 E. 9. Raschen 221 King p. Hausell 136,171 Lacy r. Osbaldiston 218 Langton r. Carleton 216 Law v. Local Board of Red- ditch . . .135 PAOB Lawes 9. La wee 67 Leary 9. Shout 92 Leather Cloth Co. 9. Lorsont.. 119 Leech 9. Schweder 139 Leman r. Fletcher 211 9. Housley 212 London & Yorks Banking Co. 9. Pritt 139 Lovegrove v. Nelson 76 Lower. Walter 216 Lyon P. Tweddell 92, 102 Mclntyre r. Belcher 112 Mackenna r. Parkes 96, 195 Mallan v. May 126, 128, 153 Master, &c. of Gunmakere r. Fell 122 Maxim-Nordenfelt Co. v. Nor- denfelt 116,128 May P. Thomson 201 MeUors v. Shaw 63 Mercer v. Irving 134 Mills P. Dunham 123 Mitchel v. Reynolds 121, 122, 148, 177 Moreton p. Hardern 63 Mouflet v. Cole . . 126 National Provincial Bank of England r. Marshall . . 134, 139, 191 Nealep. Day Ill Neilson v. Mossend Iron Co. . . 83 Nicholls 9. Stretton 129, 187 Nordenfelt v. Maxim-Norden- felt Guns, &c. Co 117, 121 Palmer r. Mallett ..126, 130, 131, 188, 222, 223 Pawsey p. Armstrong 69 Pearce P. Foster 219 Pearson p. Pearson ..114, 115, 116 Perls P. Saalfeld 124 Pettyt P. Janeson 67 Philips P. Philips 88 Price P. Green 187 Printing & Numerical, &c. Co. p. Sampson 120 Proctor P. Sargent 130, 222 Rannie p. Irvine 156, 186 Rawlinson p. Clarke .... 129, 159 TABLE OF CASES KEFEKKED TO. XI PAGE Ridgway v. Hungerford Mar- ket Co 219 Bishton v. Grissell 58 Robinson v. Ommaney 140 Rogers v. Drury 129, 190 Rousillon v . Rousillon 125 Russell v. Russell . , 81 Sainter v. Ferguson .... 123, 134, 137, 161, 174 Searle v. Ridley 220 Sheil, Ex parte 60 Shine, Re 87 Showell v. Winkup 121, 131 Shrewsbury, &c. Ry. Co. v. L. &N.W. Ry. Co 132 Simmons v. Leonard 67 Sivell v. Abraham 142 Small v. Graves Ill Smith v. Hancock 114 v. Hayward 217, 222 v. Mules 94 Sonnenschein v, Barnard .... 142 Spain v. Arnott 219 Spotswood v. Barrow 219 Steuart v . Gladstone 81 Stubbs v. Holywell Ry. Co. . . 217 Swallows. Day 131,222 PAGE Tattersall v. Groote 103 Telegraph Despatch, &c. Co. v. McLean 59, 113 Thomas v. Atherton 63 Trego v. Hunt 115- Turner v. Robinson . . 214r Vince, Me 58- Walker v . Hirsch 59 v. Mottram 112 Wallia v. Smith 135 "Walton v. Everington 225 Ward v. Byrne 124, 125, 151 Watney v. Wells 92 Werderman v . Societe Generale d'Electricite 59, 1 14 Wickens v. Evans 133, 147 Wilson v. Johnstone 95, 100 Wise v. Wilson 21S Wood v. Wood 81 Wray v. Hutchinson 92 Yates v. Finn . , . ... 85 MEDICAL PAETNEESHIPS, TEANSFEES AND ASSISTANTSHIPS, PART I. The Agreements, and Practical Notes thereon. CHAPTER I. VALUE OF PRACTICES. BEFORE proceeding to discuss the forms of agreement, it is desirable to say a few words as to the mode of arriving / at the value of a medical practice or partnership, and as to the capital which it is necessary for a purchaser to have at command in order to make a fair start. The most important points to be taken into considera- tion in determining the value of a practice or partnership are the class and size of the practice, the rate of increase or decrease in the profits, the scope, the working expenses, opposition, transferability, length of introduction, locality, social surroundings, educational advantages, house, distance from London, and the vendor's reason for selling. Not a little also depends upon the state of the market at the time when the practice is offered for sale. Speaking generally, and leaving out of account very small practices, the value of a practice may be said to range from half a year's purchase to two years' purchase, and of a partnership from one to three years' purchase. The higher limit can of course only be obtained when the conditions are extremely favourable. The value of a practice when no introduction in the c. B VALUE OF PRACTICES. ordinary sense can be given as in the case of the death of the incumbent is usually from one-fourth to one-third less than it would be with a good introduction. The above rates of purchase are to be based not upon the profits, but upon the average gross annual receipts for the three years ending either the 31st of December last past, or the date up to which the annual accounts of the practice are usually taken, or, sometimes, the date at which the sale is effected. If for any reason it is not possible to show receipts for three years, as when a prac- tice has been held by the vendor for a short time only, or where no cash-book has been kept, the gross annual cash receipts must be estimated as nearly as possible from the bookings. It is better in such cases for the vendor to state a fixed price rather than so many years' purchase. The value of the poorer class of practice is often based upon the receipts of the last year only. An important exception to the above general rule and one not infrequently overlooked is where there has during the three years in question been a considerable decrease or increase in the value of the appointments held, or where appointments have recently been obtained or lost. In such cases the income from appointments during the three years is entirely omitted, and the estimated gross annual value of the appointments held at the time of sale is added to the average gross annual receipts from the private practice. The value of an appointment does not in any way depend upon the length of time it has been held, and a recently-obtained appointment will be just as valuable from the point of view of the purchaser (if he obtain it) as one that has been held for years. On the other hand, a pur- chaser must not allow the purchase-money to be based in part upon receipts from appointments which are no longer held or have been considerably reduced in value. The custom of basing the purchase-money upon the gross cash receipts is peculiar to the sale of medical practices and partnerships, and may at first sight appear arbitrary and unfair, but in reality it is not so. VALUE OF PRACTICES. For first, as regards earnings, it must be remembered that the value of a practice depends, not upon the intrinsic value of the services rendered, but upon the fees which the patients can afford and are willing to pay; and, if the earnings were to be taken as the basis, charges, not in themselves unreasonable might be entered against patients quite unable to pay them, and the value of such entries it would be almost impossible for a purchaser to gauge. Then, with respect to working expenses, it would be a matter of no little difficulty for a medical man to state them accurately; for the most part they are in- extricably mixed up with his personal expenditure; his surgery is part of his house and he holds his stables prob- ably under the same lease ; his horses are used for private as well as professional purposes ; he keeps an assistant and pays him a fixed salary, but he provides board and residence for him with his own family. Almost the only items which can be kept entirely distinct are drugs and surgery requisites. Thus, it will be seen that this custom of basing the pur- chase-money upon the cash receipts is the best arrangement possible under the circumstances. Nevertheless, one must bear in mind that it is merely conventional and may be mis- leading. The cash receipts are not an infallible index of the value of a practice. Special efforts may have been made, in view of a sale or from some less reprehensible motive, to get in outstanding debts. In a practice which has begun to deteriorate, the cash receipts will not at first indicate any such deterioration ; just as in a rapidly-in- creasing practice the receipts do not fully represent the increase. Again, though it may be hard to say exactly what the working expenses are, they may be obviously out of proportion to the income. Therefore, in determining the rate of purchase to be paid upon the conventional basis, due weight must be allowed to these considerations. When a price is named for a practice or partnership, it * 2 VALUE OF PRACTICES. is to be understood as including goodwill (a) only, and, unless the contrary be expressly stated, nothing in the way of drugs, fittings, &c., is included. We suggest that a medical man who wishes to dispose of his practice, or a share of it, should, as a first step to that end, employ an accountant with special experience of such work to make out a proper statement of what the annual receipts of the practice really are. It is rare to find that a statement made out by the vendor himself is quite accurate however desirous he may be of making it BO and it is only fair to add that the error is as often in under-estimating as in over-estimating the income. For instance, contra accounts are frequently omitted ; receipts, such as dividends or fees from resident patients, may be improperly included ; the salaries from appointments may have been paid irregularly, and three or five quarters' payments included in one year, or the value of the same may have largely increased or decreased (6). and so on. In any case it is most necessary to warn the purchaser that he should under no circumstances omit to have the accounts thoroughly investigated on his behalf. It may seem strange that we lay so much stress upon such an obvious precaution, but the fact is that it is constantly being neglected; too often with the result that, though the purchaser can point to no definite misrepresentation on the part of the vendor, he finds he has misapprehended the character of the investment. It is by no means uncommon for a purchaser to under- estimate the amount of capital required for entering upon a practice or partnership, and, therefore, it may be well to point out that some considerable sum is requisite over and above the money paid by way of premium. The chief heads of such additional expenditure are : (1) Horses, (a) The word "goodwill" ia here used in its wider and not in its strictly legal sense. (t) See page 2. VALUE OF PEACTICES. 5 -carriages, harness, and stable utensils ; (2) Drugs and surgery appliances ; (3) Household furniture ; and (4) In the case of any other than a "ready money " practice, enough to live upon for from three to twelve months, accord- ing to the amount of credit given (c). Roughly speaking, it may be laid down as a general rule that a purchaser (a married man starting de novo without furniture) should have at command in cash half as much again as he is investing in buying a practice or share. (c) In some practices where long credit is given, a purchaser may not receive his normal income until the third year. CHAPTER H. FORM OF ARTICLES OF PARTNERSHIP BETWEEN TWO MEDICAL MEN. THIS INDENTURE made the day of 189 BETWEEN A. B. of of the one part and C. D. of of the other part. WHEEEAS the said A. B. has for some time carried on the practice profession or business of a general medical practitioner in and around the of aforesaid AND WHEREAS the said A. B. has agreed to admit the said C. D. into partnership pn consideration of the payment to the said A. B. by the said C. D. of the sum of by way of premium]. NOW THIS INDENTURE WITNESSETH that in consideration of the mutual confidence of the said parties [and of the said sum of to the said A. B. paid by the said C. D. upon the execution of these presents (the receipt of which sum the said A. B. doth hereby acknowledge)] they the said A. B. and C. D. do hereby mutually covenant and agree to become and be partners in the practice profession or business of general medical practitioners (hereinafter called " the said practice ") upon and subject to the terms condi- tions and stipulations expressed in the following Articles that is to say FOEM OF ARTICLES. In a partnership the premium is usually paid in full before the commencement of the partnership. There are, apart from what is the custom, weighty objections to allowing any part of the purchase-money to be paid by instalments. For (1) the existence of a large debt from one partner to the other is likely to cause friction. (2) It is possible that the payment of such a debt would so hamper a junior that he would be unable to keep up a proper appearance, or promptly meet his tradesmen's bills, and so the credit or the character of the practice might suffer. The same objection holds in the case of a man purchasing with borroived capital; and therefore it is pertinent for a vendor to make inquiry as to this. And (3) the junior partner has no share in the debts outstanding at the time he joins. He will not therefore for some time derive the full benefit of his share, or be able to defray any instalments of purchase-money out of it (a). 1. The said A. B. and C. D. shall be partners Duration of in the said practice as from the day of par 189 during their joint lives [or for the term of years] unless the partnership shall be previously determined under the provisions hereinafter contained. In formulating a scheme of partnership in any profession or business, one of the chief objects to be kept in view is that the capital invested in such business or profession should re- main intact and realizable in the event of dissolution by death or otherwise. Now in the case of a medical practice the capital is practically synonymous with the goodwill and professional connection, and it is therefore very undesirable to introduce any clause which may seriously affect the value of the good- will or either partner's share in it, should it become necessary to liquidate the partnership. Again, the commonest objection to a partnership is the risk of disagreements occurring between the partners, and the difficulty of getting out of it in such a case or in the event of other unforeseen emergencies arising. It should therefore be made practicable for either partner, at some sacrifice and with reasonable restrictions, to retire from the partnership should he wish it. Bearing these two principles in mind, we strongly recom- mend that the term of partnership should be for the joint (a) See page 5. FORM OF ARTICLES. lives of the partners, subject to either partner being free to sell out under clause 25. This form of partnership has the advantage of combining the maximum 01 security with the minimum of restraint. A partner is practically certain of being able to realize his capital when ho retires, or at least the greater part of it ; on the other hand, ho is able at any time after the first few years to retire from the partm -rship should circumstances render it desirable that he should do so the only condition being that he should not continue to practise in the district. In a medical partnership the option of dissolution at certain fixed dates (say seventh, fourteenth, or twenty-first years), with power to both partners to continue practising in the place, is sometimes proposed. The plan has indeed the ad- vantage of enabling a man to terminate an obnoxious part- nership without severing his connection with a place where he has many social ties and a valuable professional connec- tion, but it is open to grave objections ; it tends to strain the friendly relations of the partners ; for instance, it would, in such a partnership, be obviously to the advantage of each to retain for himself as many patients as possible, and if at the end of seven years one partner had decidedly the stronger hold upon the practice, it would at once be to his interest to dissolve. Moreover, after such dissolution, or when the date was approaching, it would be impossible for either partner to sell his interest in the practice at anything like its proper value. So that, though at first sight it might appear that a man would be less tied, he would in reality be much more so than under the scheme which we have recommended, where he could leave at any time by giving six months' notice. Of course, if both partners desire to dissolve, they can at any time do BO without any mention of the power in the deed. % Name of firm. 2. The practice shall be carried on at or at such other place or places as may be agreed upon under the firm or style of B. and D. PordiMeof 3. The stock of drugs drug bottles drug: hare of _ . drugs, 4c. utensils surgery fittings surgery furniture and surgery appliances (but not including surgical instruments) [horses carriages harness stable utensils and provisions] belonging to the said A. B. for the purpose of the said practice at the FORM OF ARTICLES. date of the commencement of the partnership shall be valued by a competent valuer [or shall be taken to be of the value of ]. The said C. D. shall within fourteen days from the commencement of the partnership pay to the said A. B. a sum equal to of the amount of such valuation and the said articles shall thereupon become the property of the partnership. Generally, if the shares are equal, it is advisable for each partner to provide and keep his own horses. But, if the shares are unequal, the stable expenses should be a partner- ship affair, for the junior partner might have as much (pro- bably more) ground to cover in doing his share of the work * as the senior, in which case, if he provided his own horses, he would be at a much greater expense proportionately than the senior. 4. The capital of the partnership shall be taken Capital. to mean and consist of the said stock and effects enumerated in the last article and such further stock and effects (except as is herein otherwise provided) as may from time to time be required for the efficient working of the practice to be purchased with the consent of both partners the cost thereof and also such sums of money as may be from time to time required for working the said practice to be borne and contributed by the partners in equal shares [or in the proportions in which they are to share in the profits as herein- after mentioned]. 5. Each partner shall provide for himself at his Separate own cost all the surgical instruments which he may require [and such horses and carriages as he may need for the efficient working of the practice and shall bear and defray all expenses connected 10 FORM OF ARTICLES. therewith] and shall pay the wages of all his own servants and the rent rates and taxes of his private residence and all other his personal ex- penses [and each partner shall if required by the other keep at least one horse for the purpose of the practice]. It is usual for each partner to be required to provide his own surgical instruments. Partnership 6. The rent rates and taxes of any surgery expenses. used for the purposes of the practice (other than any part of either partner's private residence) [and of any stables and buildings at which the horses and carriages forming part of the capital of the partnership shall for the time being be kept] and all expenses of repairs and insurance and other expenses relating thereto and all expenses [of keeping such horses and carriages as aforesaid and] of providing drugs and other articles and effects required for the said practice and forming the capital of the partnership as hereinbefore defined and all salaries and expenses of assistants and servants connected with the practice and all other expenses and outgoings relating thereto shall except as herein is other- wise provided be paid out of the profits of the practice or if the same shall be deficient such deficiency shall be made up by the partners in equal shares [or in the shares in which they are entitled to the profits of the practice]. It may be that the only surgery of the partnership is at the senior partner's house. The partnership should then be charged with a portion of the rent so long as such arrange- ment continues. So also as regards stables. FORM OF ARTICLES. 11 7. An account shall be opened at the Banking Bank at in the name of the partnership and a within seven days from the commencement of the partnership the said A. B. shall pay in the sum of and the said C. D. shall pay in the sum of to such account. All moneys received on account of the partnership by either partner shall be paid in weekly or oftener to the said partnership account at the bank and all cheques drawn on account of the partnership shall be signed by both partners. An alternative sometimes preferred, especially where part- ners live some miles apart, is that there should be no partner- ship banking account, but that the partners should meet monthly and account together for all receipts and payments and divide the balance in the hands of each. It is as well to point out one great indirect advantage of paying all moneys received into a bank, namely, that when there is any question of selling the practice or any part thereof it is regarded by the purchaser as valuable indepen- dent evidence as to the gross receipts of the business upon which, as before stated, the premium is based. Such banking, moreover, is of great assistance in keeping the accounts of the practice, and makes the division of profits a simple matter. 8. The partners shall be entitled to the net shares of profits of the practice in equal shares [or in the proits * shares following that is to say the said A. B. to parts thereof and the said C. D. to parts thereof] and they shall bear in the same proportion the losses (if any) arising in the said practice. 9. Each partner shall be at liberty to receive Resident and take in his private house and for his own exclusive profit resident patients pupils or boarders provided that the care and attention required by such patients pupils or boarders in 12 FORM OF ARTICLES. no way interfere with bis work in connection with tlu said practice. other 10. Both partners shall employ themselves diligently in the said practice and save as in the last preceding article provided neither partner shall engage in any other undertaking or business requiring his personal attention. And in the event of either partner holding or obtaining any appointment or making any profit by consultation whether directly in connection with the said practice or otherwise the salary or fees from any such appointment or profit from any such con- sultation shall be considered as part of the profits of the said practice. Neither partner shall accept any professional appointment or office payable by fees salary or otherwise without the consent of the other partner. When a junior partner has paid the full value for his share it is not proper at any rate permanently to impose un- favourable conditions upon him as regards the division of the work of the practice. As a matter of course he will at the outset attend to the poorer patients, for they can be the most readily and advantageously transferred to him; further, if the senior partner be an old man, the junior may fairly be required to attend to all night calls. But to stipulate, for instance, that the junior shall do all the night work and all the dispensing for himself and his partner, and be solely responsible for keeping the books of the practice, would be to place him in the position of a mere assistant, and would only be reasonable if he had been admitted to partnership on exceptionally easy terms of purchase. A senior partner is sometimes desirous of reserving to him- self the emoluments of some appointment which he holds as that of coroner or medical officer of health but it is not reasonable or customary that he should do so. He will argue that, as he cannot depute his partner to do the work, the latter should not share the profit of such appointment ; but he forgets that the work entailed by such appointment occupies time which might be devoted to the practice to the FORM OF ARTICLES. 13 advantage of the partnership, and that while he is engaged in the duties of the appointment his partner is probably doing work in connection with the practice from which he, the senior, will derive benefit. 11. Any legacy or gift not being in direct Legacies or return for professional services rendered made to g either partner exclusively shall belong to that partner and not be brought into the partnership account. 12. Each of the partners shall reside in a Residences. private house suitable and convenient for the purposes of the practice [or A. B. shall continue to reside at the house known as and C. D. shall reside at the house known as and no alteration shall be made herein by either party without the consent of the other such consent not to be unreasonably withheld] and each partner shall keep up an appearance and demean himself generally in a manner becoming a medical practi- tioner. 13. Each partner shall at all times pay and Private debts discharge his private debts and liabilities and ship, 81 &c. y " shall save the other and the partnership effects harmless from all debts and claims on his separate account and neither partner shall without the previous consent in writing of the other become bail surety or security for any person. 14. Each partner shall be liable personally to Negligence, make good any loss occasioned to the partnership by any negligence or misconduct on his part. 15. The fees to be charged to patients shall be Fees, at such rate as shall be agreed upon or on failure 14 FORM OF ARTICLES. AariatanU an 1 - rv;ii.t-. Books of account. Quarterly account. to agree shall be at the same rate as heretofore charged by A. B. 16. Such assistants and servants as may from time to time be needed for the efficient working of the practice shall be engaged and except in the case of flagrant misconduct be dismissed only with the consent of both partners. 17. Each partner shall be just and faithful to the other in all accounts entries dealings and transactions relating to the said practice and shall not use the name of the partnership or deal with the property thereof for other purposes than those of the said practice. 18. Proper books of account shall be kept by the partners and entries immediately made therein of all their respective attendances upon patients earnings receipts payments and of medicine sup- plied to patients and all such other matters and things as are usually entered in books of account of a medical practice. Such books shall be kept in the surgery of the partnership [or in the surgery of each partner respectively] and eacli partner shall at all reasonable times have free access to examine and copy the same. It is usual for the books of the partnership to be kept at the chief surgery, or at the senior partner's house. 19. On or within one week after the 1st day of January the 1st day of April the 1st day of July and the 1st day of October in every year (begin- ning with the 1st day of next) an account and balance sheet shall be made out of all moneys received or paid on account of the partnership FOEM OF ARTICLES. 15 during the preceding period of three months and the partners shall account together for all such receipts and payments. And the balance of the partnership account at the bank shall after making provision for the outstanding liabilities of the partnership be divided between the partners in the shares which they are entitled to the profits of the partnership but so that a balance of at the least shall always be left in the said part- nership account. Such quarterly accounts shall be liable to re-adjustment if necessary on taking the annual account. 20. On the day of 18 and on General i i i P i annual every subsequent day 01 general ac- account. counts shall be prepared [by a competent accountant] of the assets and liabilities of the partnership and of all dealings therein since the last annual account or from the commencement of the partnership as the case may be and of all things usually comprehended in accounts taken by persons engaged in a like profession or busi- ness and a just valuation shall be made of all items requiring valuation. Such general accounts shall be entered in duplicate books one to be kept by each partner and be signed in each book by both partners and when so signed the accounts shall be conclusive save that if any manifest error shall be discovered therein within three- calendar months after such signature the same shall forth- with be rectified. [21. C. D. having purchased a share of Guarantee the said practice from A. B. on the faith of repre- takings. 16 FORM OP ARTICLES. sentations made by A. B. that the gross receipts in respect of the said share so purchased Thia will oni y ^yiH i n the first year [or in each of the first very special years] of the partnerslu'p [on account of each year's work respectively] amount to not less than the sum of A. B. shall within three days from the termination of the first year of the part- nership pay to C. D. such amount (if any) as together with the share of C. D. in the gross cash receipts in respect of the work of such year may be necessary to make up the said sum of But A. B. shall be at liberty to recoup himself the amount so paid by him out of C. D.'s share of the fees booked or receivable for work done in that year as such fees shall from time to time be paid and received. And C. D. shall not be entitled to receive any further share of the fees for work done in that year unless and until the whole amount so paid by A. B. shall be recouped to him out of such fees. [Similarly at the end of the second and years respectively A. B. shall if neces- sary in like manner make up the share of C. D. to the sum of arid shall have the like right to recoup himself out of the fees booked or receiv- able for the work of such years respectively and subsequently paid each year being taken sepa- rately.] This provision as to making up the share of C. D. shall be enforceable only against A. B. personally and not against his legal per- sonal representatives or successors in the said practice.] It of ten occurs that a purchaser of a share of a practice asks FORM OF ARTICLES. 17 for a guarantee that the income will not be less than a certain fixed sum, at any rate for the first two years. This ought not to be granted. But as it is occasionally conceded, a clause has been drafted to give effect to such a condition in the least objectionable form. The only case in which we consider a guarantee should be given is when a vendor maintains that the receipts of his practice for the last three years do not fairly represent the present value of the practice owing to circumstances that have occurred, as, for instance, the recent death of an opponent, or where the prolonged absence or illness of the vendor has considerably affected the receipts without injuring the practice otherwise. [22. If either partner shall desire to determine Power to the partnership during the first year thereof he partnership shall be at liberty so to do on giving months' notice in writing to the other of such his intention and in such case if A. B. be the partner giving the notice he shall on the date of the termination of such notice pay to C. D. the sum of and if C. D. give such notice A. B. shall at the time last mentioned pay to him the sum of for his share in the practice and shall at the same time pay to C. D. the value of his share in the capital of the partnership as hereinbefore defined. And in such case C. D. shall be subject to such restraint upon practising in or near aforesaid as is contained in Article 35 of these presents.] Sometimes it is desired by both vendor and purchaser that within the first year of the partnership there should be the power with either partner of rescinding the partnership. There is no great objection to such a condition provided that the partner who gives notice to resume the status quo makes some considerable sacrifice. For instance if the notice is given by the vendor he should pay to the purchaser from 10 to 25^ above the sum he received from him ; whereas if it emanates from the purchaser the latter should receive back from 10 to 25^ less than he paid. In either event the purchaser should of course be restrained from continuing to practise in the neighbourhood. C. C 18 FORM OF ARTICLES. Option to purchase share in the practice. Power to determine partnership on notice. 23. The said C. D. on giving to the said A. B. three calendar months' previous notice in writing expiring not before the termination of the year of the partnership shall have the option of purchasing a further share of the said practice for the sum of [or for a sum equal to of the average gross annual receipts of the entire practice for the last three years immediately pre- ceding the expiration of such notice] to be paid in cash at the time of the purchase. It is usual, where a purchaser has only bought a share less than one half, to allow him to buy up to one half after from two to ten years according to the circumstances. The pur- chase price is almost invariably fixed upon the original valua- tion ; for instance, if he purchase at first one-third for 1,000/. (say this represents two years' purchase) he should have the option of buying up to one half at any time after the expiration of the third, fourth, or fifth year for 500/. ; and not for two years' purchase based upon the average gross receipts of such further share for the three years immediately preceding such further purchase ; the injustice of this latter alternative being that any increase in the receipts after the purchaser joins is likely to be attributable just as much to the new as to the old partner's exertions. The circumstances therefore should be very exceptional for the latter alternative to be adopted. The incoming partner will naturally be anxious to have the right of increasing his share at the earliest possible date, whereas the vendor is usually desirous of deferring such increase as long as possible. The latter will often argue not without reason that it will be a long time before the new partner earns a half share of the income. A fair method of obviating this difficulty is to give the junior partner the option of increasing his share to one half at any time after a given number of years (in fact the time contended for by the senior), or sooner if at the end of any year it shall be found that he has during such year done as much work (as repre- sented by the fees earned) as the senior partner has done. [24. Either partner may determine the partner- ship at the end of the or the th year thereof on giving not less than six calendar FORM OF ARTICLES. 19 months' previous notice in writing to the other of his intention in that behalf and at the expiration of such notice the partnership shall be determined accordingly and each partner shall be at liberty to continue to practise in aforesaid.] This clause is objectionable for the reasons stated in the note on clause 1 . 25. Either partner may on giving to the other Power to six calendar months' previous notice in writing sell his share in the said practice [at any time after the day of 18 ]. The other partner shall during the pendency of such notice be pre- cluded from giving a similar notice on his own behalf but he shall have the option (to be declared in writing not less than three calendar months before the expiration of the notice) to purchase as from the date of the expiration of the notice the share of the partner so retiring for a sum equal to the gross annual receipts from such share as shown by the average for the last three years immediately preceding the expiration of such notice such sum to be paid in cash at the date of the purchase. In the case of the remain- ing partner declining or failing to declare his option so to purchase the retiring partner shall be at liberty to sell his own share in the practice and in the capital to a properly qualified man who shall (but subject to the approval of the remain- ing partner which is not to be unreasonably with- held) be admitted to partnership by the remaining partner subject to obligations and with rights similar to those of the retiring partner at the c2 20 FORM OF ARTICLES. time of sale. Such purchaser shall execute a proper deed of accession binding him to observe the stipulations and conditions contained in these presents so far as the same shall be applicable and such other provisions as may be necessary or proper to effect the intentions herein expressed and any difference as to the form or contents of such deed may be referred to arbitration. [Pro- vided always that the said A. B. shall not sell his share in the practice until after the expiration of the year of the partnership and C. D. shall not sell his share until after the expiration of the year of the partnership.] And if a new partner be admitted under this clause the continuing partner shall not be at liberty to sell his share until after the expiration of two years from such admission. If either partner shall die before the expiration of any notice to sell given under this clause such notice shall be void. The advantages of this clause have been pointed out in the note on clause 1. The first question that arises hereunder is the date at which either partner is to be allowed to sell. To decide this point, one must ask how soon the junior partner will have obtained a hold upon the practice equal to that of the senior. In the case of an ordinary country practice or a middle class town practice, it should be the end of the third year ; and so on according to the class of practice ; in a high class town practice, or where the opposition is exceptionally strong, it should be the end of the fifth year, or even later. The senior partner may fairly claim the prior option to sell out ; for instance, he may reasonably ask that he shall be at liberty to sell after the end of the third year, and that the junior shall not be at liberty to sell until after the end of the fifth year. When one partner has given notice to sell under this clause the remaining partner should not be bound to buy, because the selling partner is retiring for his own convenience ; more- FOKM OF ARTICLES. 21 over, the strong objections to the " option " which exist in the case of death do not apply here (b). As regards the price at which the remaining partner shall have the option of purchasing, it should be the same rate of purchase as the original purchase price, but based upon the average cash receipts for the three years immediately preceding the retirement (c). Provided always that the junior be allowed to increase his share to one-half (if it be less than that) at a price in accordance with clause 23, instead of a new rate. The proviso at the end of the clause, namely, that when one partner has given notice to sell the other shall not give notice for two years subsequently, is necessary, for otherwise, if immediately afterwards the other gave notice to sell, a deadlock would occur. The custom is somewhat different if the senior has taken a partner with a view to retirement; then the junior should have no option of selling ; but he should have the right of buying the senior out at any time after a fixed number of years. Thus, assuming that A. B. has taken 0. D. into partnership with view to retirement, he reserves to himself the right of retiring at any time after the end of, say the third year. Then C. D. should have the right of forcing A. B. to retire at any time after, say the fifth year, if the latter has not pre- viously given notice of retirement. In either event C. D. should be bound to purchase A. B.'s share, when he does retire, at a price based upon the value of the practice at the time when he first entered it. 26. Subject to the two next following clauses each partner shall be entitled to weeks' absence for holiday in each year of the part- (4) It may not unreasonably be objected that the remaining partner might refuse to exercise his option and then put such obstacles in the way of the outgoing partner selling his share, as are indicated in the note on clause 29. In practice this has not been found to be the case, but the difficulty which certainly in theory does exist, may be obviated by making it obligatory for the remaining partner to buy the share of the outgoing partner, as in the case of death, upon such easy terms that he will have no difficulty in re-selling at a profit. The outgoing partner is leaving for his own convenience, and any loss should fall upon him. (c) If either partner is to be allowed to sell out during the first three years a special arrangement must be made as regards price (see note on clause 29). 22 JfOBM OF ARTICLES. Temporary absence and incapacity. Clause to determine in case of con- tinued inca- C'ty or icy or in case of misconduct. [The clause in brackets ia somewhat stringent.] nership at such times as may conveniently be arranged A. 13. to have the prior choice in fixing the time for his own holiday. The senior partner may reasonably stipulate for priority of choice as regards the time of taking his holiday. It is usual for both partners to have the same length of holiday, but the circumstances of the practice may be such as to entitle the senior to a longer holiday, as in a large good class prac- tice where, in the nature of things, it is to be expected that for some time to come the greater part of the work will fall upon him. 27. In the event of either partner absenting himself from the practice or becoming from any cause incapacitated from performing his fair share of work therein for more than four entire days in any three consecutive calendar months he shall if required in writing by the other partner so to do provide at his own expense a competent qualified person as substitute. Pro- vided always that nothing herein contained shall be taken to imply a right in either partner to absent himself to the neglect of his duties in respect of the practice. 28. In the event of any absence or incapacity of either partner continuing (except with the written consent of the other partner) for more than six consecutive calendar months or for more than 200 days in any two consecutive years or if either partner shall become lunatic [or if either partner shall commit any breach of the articles herein contained and on his part to be observed and performed or shall do or suffer anything whereby the interests of the partnership shall be or shall be in danger of being seriously injured] FOKM OF AETICLES. 23 it shall be lawful for the other partner by notice in writing [such notice in the case of breach of these articles or misconduct to be given within fourteen days after the partner giving the notice has knowledge of such breach or misconduct] to determine the partnership but without prejudice to any remedies of the partner who gives such notice. And if the partnership shall be so deter- mined as aforesaid or by reason of a partner having suffered his share to be charged or of the bankruptcy of a partner or shall be dissolved by the Court on account of the lunacy incapacity absence or misconduct of a partner then and in every such case the partner through whose lunacy incapacity absence misconduct bankruptcy or other default the determination or dissolution of the partnership shall have been caused shall for the purposes of these presents be deemed to be dead as from the date of such determination or dissolution and his share and interest in the practice as from such date shall (mutatis mutandis} be dealt with as hereinafter provided in the event of the death of a partner the legal personal repre- sentatives of a deceased partner being if necessary taken to mean and include a surviving partner or his committee or trustee as the case may be. Provided always that in case the dissolution or determination has been caused by the misconduct or breach of one partner the other partner shall not in any event be bound to purchase his share. The two preceding clauses deal with very difficult questions, and are found to work satisfactorily. Clause 27 appears stringent, but it is not too much so, being only put into FORM OF ARTICLES. Surviving ]>:irtnt r t-> purchase, OP t<> h;ive the option of purchasing, the share of the deceased partner. Mode of calculating purchase- money of share. operation if one partner takes undue advantage of the other and absents himself constantly or inconsiderately. 29. In the event of the partnership beinir determined by the death of A. B. in the first year of the partnership C. D. shall purchase [or have the option of purchasing] the share of A. B. for the sum of and if in the second year of the partnership C. D. shall purchase [or have the option of purchasing] such share for the sum of and if in the third year of the partnership C. D. shall purchase [or have the option of pur- chasing] such share for the sum of . In the event of the partnership being determined by the death of C. D. during the first three years of the partnership A. B. shall purchase [or have the option of purchasing] his share for the sum of . If the partnership shall be determined by the death of either partner occurring after the end of the third year of the partnership the surviving partner shall purchase [or have the option of purchasing] the share of the deceased partner for a sum equal to times the average gross annual receipts from such share for the three years last past immediately before the date of the partner's death. [Any option to purchase under this clause shall be declared by the surviving partner within fourteen days after he has know- ledge of the death of his partner.] The survivor should be bound to buy, and the price should in consequence bo made moderate. If he be given the option, in the same way as recommended in the case of clause 25, the representatives of the deceased are at his mercy, for without actually refusing any purchaser whom they may bring forward he may so deport himself or represent the practice, that no FORM OP ARTICLES. 25 one would care to join him in partnership, and he would eventually obtain the share for nothing, or at any rate upon his own terms, though we have attempted to remedy this by the three last lines of clause 31. The case differs from that dealt with under clause 25, since in the latter instance the outgoing partner can look after his own interests and in the last resort retain his share. With regard to fixing the price to be paid by the survivor, it must be borne in mind that until both partners may pre- sumably be expected to have an equal hold upon the patients (that is, until after two, three, four or five years according to the class of practice), their cases must be dealt with separately. At first, the junior partner's hold upon the clientele is compara- tively slight, but as time goes on it is constantly becoming firmer. Take for instance an ordinary country practice of, say, 1,5007. per annum, where the purchaser has bought a one-third share for, say, two years' purchase, i.e., 1,0007. If the senior die during the first year, the junior should pay such a sum as will, together with what he has already paid, make up one year's purchase (1,5007.), i.e., 5007. ; if during the second year, such a sum as will make up one-and-a-quarter year's purchase (1,8757.), i.e., 8757. ; if during the third year, such a sum as will make up one-and-a-half year's purchase (2,2507.), i.e., 1,2507. When, however, the junior has come in with view to succession, these prices should be higher. In the event of the purchaser dying during the first three years, the vendor should, taking the same example, pay his executors about 8007., that is to say, the original purchase- money less 20 per cent. After the end of the third year, it may be assumed that, in such a practice, both partners will be on the same footing, and the survivor should buy at one-and-a-half year's purchase, based on the average annual receipts from the share of the deceased for the three years immediately preceding his death. A particular instance has been taken for the sake of clear- ness. It is necessary to add that each case should be con- sidered on its own merits, as circumstances may materially alter the amounts which should be payable in the event of the early death of the senior partner. Suppose, for instance, that in the above-mentioned practice, the junior partner is not a young man taking a small share only, but an older and more experienced man who is to have a half share from the first ; the early death of the senior partner would not be so injurious to such a man, and he should, therefore, if the senior die during the first year, pay such a sum as will, together with what he shall have already paid for his half-share, make up one-and-a-quarter year's purchase for the whole practice. It may be preferred (though as stated above we deprecate 26 FOKM OF ARTICLES. the alternative) to give the survivor the option of purchasing or refusing to purchase the share of the deceased. In that case, the price should bo higher, the same, in fact, as under clause 25, and, in the event of the survivor not exercising his option of purchasing the share, the legal representatives of the deceased should be at liberty to sell it for what they can (as provided in clause 31), the survivor accepting their nominee subject to reasonable conditions, and admitting him to partnership, as in the event of a similar sale under clause 25. Mode of payment of purchase- money. 30. [If the surviving partner shall duly declare his option to purchase the share of the deceased partner] the practice shall become the property of the surviving partner as from the date of his partner's death subject to the payment from the same date of all outgoings. The surviving partner shall pay the purchase-money in cash within one calendar month of such death unless security approved by the legal personal representatives of the deceased partner shall be given by the sur- viving partner in which case the surviving partner shall pay the purchase-money as to one-fourth within one calendar month from his partner's decease and as to the remaining three-fourth parts thereof within six twelve and eighteen calendar months respectively from such decease with interest at the rate of 4 per cent, per annum on the amount for the time being outstanding. It is reasonable that if the survivor buys he should have easy terms of payment ; but, on the other hand, the executors of the deceased partner must have the best available security that the money will be paid in due course, for, if no security be given, it would be possible for the survivor to sell out within twelve months and elude payment. If the survivor cannot pay the money down and cannot give satisfactory security, then his proper course is to take in another partner who will provide the necessary capital ; and in the alternative FORM OF AETICLES. 27 which we have advocated, the executors of the deceased partner will be in a position to bring considerable pressure to bear upon him to induce him to take this course. [31. If notice declaring such option be not if option not duly given the legal personal representatives of ' the deceased partner may sell the share of the deceased partner in the practice to a properly qualified man who shall be admitted to partner- a valuation. ship by the remaining partner subject in all respects to such approval and subject to such obligations and provisions and with such rights as are mentioned in clause 25 of these presents with regard to a partner admitted thereunder. In the event of the share of the deceased partner being still unsold three calendar months after his death the surviving partner shall purchase the share of the deceased partner upon such terms as to payment or otherwise as may be agreed upon or failing agreement may be settled by arbitra- tion.] 32. Any purchase of a share or part of a share share of of the practice under these presents shall not be^urchased, (unless otherwise specially provided) include any debts. * book debts of the partnership or of either partner. And in the event of either partner or any here- after admitted partner purchasing the share or part of the share in the practice of the other the purchasing partner shall at the same time pur- chase a corresponding share in the capital of the partnership (not including book debts) for a sum to be agreed upon or determined by valuation and to be paid in cash at the time of such purchase. 28 FORM OF ARTICLES. Remaining 33. In case of any dissolution of the partner- Jot indobta. ship [otherwise than by cffluxion of time] the surviving or continuing partner shall pay and liquidate all partnership debts and liabilities and shall in accordance with the customary dealings of the partnership get in and collect all book debts of the partnership and shall render an account thereof quarterly and at the same times pay the share of the outgoing partner therein to him or his representatives as the case may be. Final general 34. Subject to the provisions of these presents and save as herein otherwise provided upon the determination of the partnership a general and final account in writing shall be made and taken of all the moneys credits property (other than the goodwill and connection of the practice) effects debts and liabilities of the partnership up to the time of the determination thereof and the said moneys credits property and effects or the pro- ceeds thereof shall after discharging or providing for the debts and liabilities of the partnership bo divided between the partners or their representa- tives in the proportion in which they shall at the date of such determination ' be entitled to the net profits of the partnership. Restriction 35. If the share of either partner in the practice whSediare shall be sold or taken over at a valuation under any clause of these presents the outgoing partner shall not at any time thereafter [or within years from the date of such sale] exercise or carry on or be directly or indirectly interested in exer- cising or carrying on upon his own account or in FORM OF ARTICLES. partnership with or as assistant to any other person the practice profession or business of physician surgeon accoucheur or apothecary at afore- said or at any place within a radius of miles therefrom. And should the outgoing partner so practise or assist any other person in practising within the limits aforesaid or in any way violate this provision he shall forthwith pay to the re- maining or continuing partner the sum of [for every month or part of a month during which he shall violate this provision] as ascertained and liquidated damages and not by way of penalty. The radius depends upon the class and extent of practice and the nature of town or country. It varies from one to twelve miles. The radius in the country is almost invariably ten miles. In towns it varies very considerably. It should be observed that the outgoing partner would not be at liberty to come within the prescribed radius for the purpose of practising, even though he might reside without it. 36. Any notice to be given to a partner or his Notices. representatives under the provisions of these presents shall be deemed to have been sufficiently given if handed to such partner or addressed to him or to his executors, (without naming them) and sent by registered letter to his last known address in the United Kingdom or handed or sent to any one of his executors or administrators or his com- mittee or trustee as the case may be. 37. Either of the parties hereto shall at the Further request and at the expense of the other execute and do any deeds and things reasonably necessary to carry out the provisions of these presents or to render the same more easy of enforcement. 29 30, FORM OF ARTICLES. 38. The cost of the stamps necessary for these presents and a duplicate hereof shall be borne by A. B. and C. D. in equal shares. Arbitration. 39. If during the continuance of the partner- ship or at any time afterwards any dispute difference or question shall arise between the partners or their or any of their representatives touching the partnership or the accounts or trans- actions thereof or the dissolution or winding-up thereof or the construction meaning or effect of these presents or anything herein contained or as to any valuation herein provided for or the rights or liabilities of the partners or their representa- tives under these presents or otherwise in relation to the premises then every such dispute difference or question shall be referred to arbitration [of two arbitrators] under the Arbitration Act 1889. IN WITNESS whereof the said A. B. and C. D. have hereunto set their hands and seals the day and year first above written. 31 CHAPTER III. FORM OF DEED FOR THE ASSIGNMENT OF A MEDICAL PRACTICE. ARTICLES OF AGREEMENT made this day of 189 BETWEEN of (hereinafter called the vendor) of the one part and of (hereinafter called the purchaser), of the other part. WHEREAS the vendor has for some time past Recital of carried on the practice profession or business agm of a general medical practitioner in and around the of and is possessed of a valuable professional connection in respect of such prac- tice. AND WHEREAS the vendor has agreed to sell and transfer to the purchaser and the purchaser has agreed to buy and acquire from the vendor the benefit of such practice and pro- fessional connection (hereinafter called the said practice) on such terms and subject to such con- ditions as are hereinafter set forth for the price or sum of [And also the fee simple of the house and premises known as now in the occupation of the vendor for the further sum of ]. NOW THESE PRESENTS WIT- NESS and it is hereby agreed as follows : 1 . IN consideration of the sum of as to part thereof paid to the vendor by the pur- chaser by way of deposit and part payment of the purchase-money of the said practice (the receipt of 32 FORM OF DEED FOR ASSIGNMENT OF PRACTICE. Agreement to assign goodwill and render patients. Drugs, &c. which sum of the vendor doth hereby acknowledge) and as to the residue thereof to be secured and paid in manner and at the times hereinafter mentioned, the vendor shall assign to the purchaser as from the day of next (date of commencement of introduc- tion) all the goodwill and professional connection of the vendor of and in the said practice now carried on by the vendor in and around the of aforesaid and shall render to the pur- chaser as far as possible all the patients and customers of the said practice and the purchaser shall buy and acquire the same upon the terms herein mentioned. The value of a practice has, so far as it lies within the scope of this work, been already dealt with in Chapter I. [2. The said purchase-money shall include all such drugs drug bottles surgery fixtures furnish- ings and appliances (not being surgical instru- ments) as shall belong to the vendor and be used for the purposes of the said practice at the date last mentioned and shall not be expended during the period of introduction hereinafter mentioned.] As has been stated (p. 4), the purchase-money usually includes nothing beyond goodwill. If, however, drugs are included (and the usual course of dividing earnings and expenses during the introduction is adopted), then it should be made clear that the drugs so included are the drugs belonging to the vendor at the end of the introduction not at the commencement : for otherwise it would be possible for the purchaser to charge the vendor for one-half the cost of such of these drugs as might be used during the introduc- tion (a). (a) See clause 7. FORM OF DEED FOR ASSIGNMENT OF PRACTICE. 33 3. The purchaser shall buy all the drugs drug bottles surgery fixtures furnishings and appli- ances (other than surgical instruments) at the vendor's surgery (hereinafter referred to as the surgery stock) at the times [or at the time] here- inafter mentioned at prices [or at a price] to be agreed upon between the parties or in case of difference to be fixed by valuation. Such prices [or price] shall be paid on the dates [or date] on which such surgery stock is hereinafter agreed to be bought or taken over or in case of a valuation within three days after the completion of such valuation. 4. The said sum of the residue of the Purchase- purchase-money has previous to execution of these SSfinto a presents been paid by the purchaser into the bank Deduction to the joint account of the vendor and the pur- is com P leted - chaser and [subject to the stipulations of these presents (&)] shall be paid out to the vendor on the last day of the said period of introduction. Any interest accruing thereon in the meantime shall belong and be paid to the purchaser. [5. The residue of the said purchase-money shall Purchase- be paid by the purchaser as follows: The sum jSISy of on the day of 18 the sum of on the day of 18 and the sum of being the balance of the purchase-money on the day of 18 [together with interest payable on the same dates at the rate of 5 per cent, per annum upon the (b) See clause 11. C. D 34 FORM OF DEED FOR ASSIGNMENT OF PRACTICE. amount for the time being outstanding from the date of the commencement of the period of intro- duction until the respective dates of payment] for the due payment of which the purchaser has pre- vious to the execution of these presents given to the vendor the security following that is to say : ] The purchase-money is usually paid one half on the signing of the transfer deed, and the balance at the end of the intro- duction, the latter moiety being secured to the satisfaction of the vendor. If the introduction is short the most convenient form of security is the payment of the second moiety into a bank in the joint names of the vendor and purchaser, as pro- vided in clause 4. Otherwise the most usual security is a promissory note signed by the purchaser and some person of sound financial position, or a form of guarantee, such as that appended to this deed ; the latter being preferable when the outstanding portion of the purchase-money is subject to de- ductions or does not become due for some considerable time (c). If the balance of the purchase-money is payable at the end of the introduction no interest is charged ; if there are any deferred payments interest is sometimes charged, but by no means invariably. Under exceptional circumstances the vendor may be willing to accept the practice itself as security for the payment of the balance of the purchase-money. The following proviso should then be inserted so that the vendor may take up again or re- sell the practice in the event of the next instalment not being paid when it becomes due. In such a case the vendor should retain the tenancy of the house and sublet it to the purchaser until the last instalment has been paid o (e) See note on clause 11. (d) Occasionally it may become necessary to agree to accept a con- siderable portion of the purchase-money by instalments spread over a long period. A proviso that, on non-payment of any instalment, the practice should revert to the vendor, and that he should retain all instal- ments paid, would not be legally valid. To obviate this, the practice might remain the property of the vendor (the purchaser being in the position of a locum tenens, paying the vendor fixed periodical sums out of the profits, and retaining the balance for his services) until a sum equal to the agreed amount had been paid out of the profits, whereupon the practice should become the purchaser's property. The vendor should have the right, on default of payment of any of the periodical sums, to FORM OF DEED FOR ASSIGNMENT OF PRACTICE. 35 [PROVIDED ALWAYS, that if the purchaser shall not Power for duly pay the said sum of (the next instal- cancel agree- ment) on the said . day of next or within seven days thereafter the vendor shall be at liberty by giving notice in writing to that effect forthwith to cancel and determine this agreement and to retain the said sum of paid to the vendor on the execution of these presents as ascertained and liquidated damages and upon such notice being given the said practice and everything thereto appertaining shall revert and belong to the vendor as if this agreement had never been entered into. And in such event the Restriction purchaser shall not thereafter exercise or carry on & such an or be directly or indirectly interested in exercising even ' or carrying on upon his own account or in partnership with or as assistant to any other person the practice profession or business of physician surgeon accoucheur or apothecary at any place within miles of [during the period of years from the date hereof]. And if the purchaser shall so practise or assist any other person to practise within the limits cancel the agreement, and retain the original deposit (if any) as liquidated damages. Some of the clauses would in this case need re-drafting. Another alternative would be to charge the unpaid instalments on the practice, and to stipulate that on any default the practice should be sold, for the benefit of both parties, by a respectable firm of medical agents, who should have special power to resell to the vendor if they thought fit, and, pending sale, to employ either vendor or purchaser or any other person as locum tenens. The money to be realised should be applied first in payment of the vendor, the balance to go to the purchaser. In either alternative a defaulting purchaser should be restrained from, practising in the neighbourhood. 36 FORM OF DEED FOR ASSIGNMENT OF PRACTICE. Covenant to introduce purcliaser. Power to extend or decrease period of introduction. aforesaid or in any way violate this provision he shall pay to the vendor the sum of as ascertained and liquidated damages and not by way of a penalty.] 6. The vendor shall continue to reside in the said from the said day of next until the day of 18 (which period [subject to such variation as is hereinafter mentioned] is herein called the period of introduc- tion) and shall actively assist the purchaser in the conduct of the practice and so far as may be possible and consistent with professional etiquette shall introduce the purchaser to and endeavour to the utmost of the vendor's ability to secure for the purchaser the custom of all such persons as are or have been patients in connexion with the said practice and are still residing in or near the said And the vendor shall use his best endeavours to secure for the purchaser all the public and other medical appointments which the vendor now holds and which are with the estimated annual value of each such appointment specified in the schedule hereto. [PROVIDED ALWAYS that the purchaser shall have the option of extending the period of introduction until the day of 18 on giving to the vendor weeks' notice in writing of his desire so to extend it.] [PROVIDED ALWAYS that the purchaser shall have the option of terminating the period of introduc- tion at any time on or after the day of 18 on giving to the vendor weeks' FORM OF DEED FOR ASSIGNMENT OF PRACTICE. notice in writing of his desire so to terminate it.] The vendor shall be at liberty to absent himself from the work of the said practice and from the of for a portion of the period of introduction not exceeding consecutive days at any time and not exceeding weeks in the aggregate. The vendor should remember that a thorough introduction is what in a great measure the purchaser is paying for, and that it is incumbent upon him to use every effort to ensure the transfer of the entire connection to the purchaser : he should learn the purchaser's views as to the best means of effecting the introduction and endeavour to carry them out. The manner in which the introduction has been given is not infrequently made a ground of complaint, the vendor should therefore ascertain from time to time whether the purchaser is satisfied with what is being done for him. The following are some of the methods of introducing a successor : (1) As partner when the introduction is long or of uncer- tain duration ; (2) As locum tenens when the vendor is ill ; (3) By circular as in the case of death vacancies ; (4) By personal introduction. We believe it to be a mistake, when a short introduction only is being given, to allow the patients to suppose that there is to be a partnership of indefinite duration, for, as soon as they discover that this is not so, they resent the deception and transfer their custom elsewhere. To avoid misunderstanding, it should be stated in the deed how many days or weeks or months during the period of introduction the vendor may be absent. In a large good class practice, the purchaser will be glad of as long an introduction as possible, and, therefore, it may often with mutual advantage be arranged that an introduction of six months shall be given, and that the vendor shall have the option of prolonging it for three or six months. If the vendor has not by the end of the first six months found another practice suited to his requirements, he will find it very convenient to avail himself of such a privilege, and as we have said the purchaser must also benefit by the extension. Sometimes the vendor is willing to give to the purchaser an option of prolonging or curtailing the period of introduction 38 FORM OF DEED FOE ASSIGNMENT OF PRACTICE. of which ho, especially if inexperienced, will do well to avail himself. Purchase of 7. The purchaser shall pay the vendor one vSSt profits nalf of tne valuc of tne vendor's surgery stock at are shared fa Q fafo o f the commencement of the period of during period * of introduc- introduction and such sui'gery stock shall become the joint property of the vendor and the purchaser. All the proceeds and earnings of the said practice on account of work done during the period of introduction shall be equally shared by the vendor and the purchaser and all expenses incidental, to the proper working of the said practice during such period shall be borne and paid by the vendor and purchaser in equal shares but each party shall provide himself with sufficient surgical instruments. At the termination of the period of introduction the purchaser shall buy and take over the vendor's one half share of the surgery stock then in use for the purposes of the practice. The profits of the practice during the period of introduction are, as a rule, shared equally by vendor and purchaser. This virtually amounts to a partnership, and is therefore open to objection when the introduction is short, and one of the follow- ing alternative arrangements is in that case recommended in order to avoid complication of accounts : either let the vendor take all earnings and pay all expenses during the first half, and the purchaser the same during the second half of the period ; or let either the vendor or the purchaser take the profits during the whole period and make a weekly allowance to the other. Clauses to carry out these alternatives are given below. The vendor is, of course, entitled to all moneys paid for work done previous to the date of transfer, and, subject to clause 18, collects them as he thinks fit. The earnings during the introduction (if they are to be equally shared) are collected as in a partnership, those unpaid at the time the vendor leaves being collected by the purchaser, who will from time to time render an account and pay over the moiety due to the vendor. FORM OF DEED FOR ASSIGNMENT OF PRACTICE. 39 [8. All the proceeds and earnings of the said where profits . . PIT -i of first half practice on account 01 work done up to and O f period of including the day of 18 shall belong to and be paid over to the vendor and all the expenses incidental to the proper working of the ^ to pur- said practice to that date shall be borne and paid by the vendor. The purchaser shall buy and take over the vendor's surgery stock as from that date and all the proceeds and earnings of the said practice on account of work done thereafter shall belong to the purchaser who shall also thereafter bear and pay all expenses incidental to the work- ing of the practice until the termination of the period of introduction.] [9. All the proceeds and earnings of the said Where one practice on account of work done during the period of introduction shall belong to and [if collected by the purchaser] be paid over to the vendor [purchaser] and all expenses incidental to the proper working of the said practice during such period shall be borne and paid by him. The vendor [purchaser] shall during the said period pay to the purchaser [vendor] a monthly sum of . The purchaser shall buy and take over the vendor's surgery stock in use for the purposes of the practice on the day of 18 .] 10. The vendor shall during the period of introduction [or down to the day of next] provide the purchaser with suitable board and lodging at aforesaid at an inclusive charge of per week. 40 Pun-haw- if specified appointments not; trans- ferred within limited period, to be paid acquired by purchaser within an extended period, FORM OF DEED FOR ASSIGNMENT OF PRACTICE. 11. If any one or more of the said appoint- ments specified in the schedule hereto shall not ^ ave ^ cen transferred to or obtained by the pur- chaser previous to the said day of _ J 13 (the termination of the introduction) then unless v 1111 CMI -i the purchaser shall have failed to use his utmost endeavours to secure the same a sum equal to times the annual value specified in the said schedule of any such appointment not transferred shall be retained [in the said bank in the joint names of the vendor and the purchaser for the period of months] [by the purchaser out of the said sum of the balance of the pur- chase-money payable by the purchaser on the said day of 18 or if the sum so to be retained shall -amount to more than such amount the excess shall be retained out of the said sum of payable on the day of 18 ] and the purchase-money shall in consideration of the purchaser's loss of such appointment or appointments be reduced accord- iDgly. PKO VIDED ALWAYS that if any such appoint- ment or appointments be subsequently obtained ^ y t ne purchaser before the day of * time 6 contrary to public policy, which required that every man tel d void, should be at liberty to work for himself ; but there have been great changes as to considerations of public policy between the date of the decision of Mr. Justice Hull, in the time of Henry V., when the judge wished to send to prison a plaintiff proceeding on such a covenant, and the recent decision of the House of Lords, in Nordenfeldt v. The Maxim-Nordenfeldt Guns, fyc., Co. ([1894] A. C. 535), where a world-wide restriction was enforced against the defendant, as far as certain businesses formerly carried on by him were concerned. It will be useful to give a short history of the law, and to notice, so far as they bear upon the present subject, some of the very numerous decisions dealing with these bovenants in restraint of trade. Extracts from some of the cases that have arisen on bonds or covenants entered into by medical men, and on agreements where the circum- stances are analogous to those that arise between medical men, are collected in chronological order in the Appendix, at the end of this chapter. 118 RESTRICTIONS ON PRACTICE. It is provided by Magna Charta that " No Freeman shall be ... disseised of his Freehold or Liberties or free Cus- toms . . . but by lawful Judgment of his Peers or by the Law of the Land " ; and these words, it was said in some of the old cases, have always been taken to extend to freedom of trade. In the Ipswich Tailors' Case, Mich. 12 Jao. 1, 11 (Reports, 54a), "it was resolved that at the common law no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil, ofiuni omnium vitiorum mater, and especially in young men who ought in their youth (which is their seed time) to learn lawful sciences and trades which are profitable to the Commonwealth, and whereof they might reap the fruit in their old age, for idle in youth, poor in age ; and therefore the common law abhors all monopolies, which prohibit any from working in any lawful trade ; and that appears in 2 Hen. V. 5 b ; a dyer was bound that he should not use the dyers' craft for two years, and there Hull held, that the bond was against the common law, and by G-d if the plaintiff was here he should go to prison till he paid a fine to the King." A case in the time of Queen Elizabeth is reported as follows : " In debt upon a Bond, the Condition was that if Robert Batchelor did use the trade of a Haberdasher as Journey- man, Servant or Apprentice, or as a Master, within the County of Kent, within the Cities of Canterbury and Rochester, within four years after the date, that then if he pay twenty pound upon request, the Obligation to be voyd. And all the Justices agreed that the condition was against Law, and then all is voyd, for it is against the liberty of a Freeman, and against the Statute of Magna Charta, cap. 20, and is against the Commonwealth (2 Hen. Y. 5 b), and Anderson said that he might as well bind himself that he would not go to Church, and judgment was given against the plaintiff." (Claygatc v. Batchelor, Owen, 143.) RESTRICTIONS ON PRACTICE. 119 " Public policy," however, as Burroughes, J., said, in an Public policy often-quoted passage, " is a very unruly horse, and when once you get astride it, you never know where it will changed from tt i j AV ,11 j time to time. carry you. It may lead you from the sound law ; and as time went on and trade became of greater importance in this country, the common law " which so much favoured trade " adapted itself to the altered conditions. It came to be seen and was recognized by the law that the principle was (as stated by James, Y.-O., in Leather Cloth Co. v. Lorsont, 9 Eq. 345), that: "Public policy requires that A man ought every man shall be at liberty to work for himself, and shall not be at liberty to deprive himself or the State of tage, and tlisrcf or to his labour, skill, or talent, by any contract into which he be able to enters; on the other hand, public policy requires that noTto'com^ when a man has by skill or by any other means obtained pete with his something which he wants to sell, he should be at liberty p to sell it in the most advantageous way in the market ; and in order to enable him to sell it advantageously in the market, it is necessary that he should be able to preclude himself from entering into competition with the purchaser. In such a case, the same public policy that enables him to do that, does not restrain him from alienating that which he wants to alienate, and, therefore, enables him to enter into any stipulation, however restrictive it is, provided that restriction in the judgment of the Court is not un- reasonable, having regard to the subject-matter of the contract." Jessel, M. E., said : " It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because, if there is one thing which more than another public policy requires, it is that men of full age and com- petent understanding shall have the utmost liberty of contracting, and that their contracts when entered into shall be held sacred and shall be enforced by courts of justice. Therefore you have this paramount public policy to consider that you are not lightly to interfere with this 120 RESTRICTIONS ON PRACTICE. freedom of contract." (Printing and Numerical Registering Co. v. Sampson, 19 Eq. 462, at p. 465.) And Fry, L. J., said, in a recent case : " I think that the law with regard to public policy is one of a very different description from the law which is laid down in absolute terms for all time. It would be strange, and I think it would be unreasonable, if a con- tract which might now be for the public benefit were held to be void because, in the reign of Henry V. or in the reign of Elizabeth, that contract was contrary to public policy. It is impossible to look at the history of the law and not to see that contracts which at one time were deemed and I daresay justly deemed to be contrary to public policy, at another time have been deemed to be con- sistent with public policy and for the public benefit. A forcible illustration of that fact is furnished by the very case which is the foundation of this branch of the law, the case in 2 Henry V., which excited the indignation of Mr. Justice Hull in a manner which has made his name immortal in the books. As has been pointed out by Lord St. Leonards, the general principle, that a contract in restraint of trade which is unreasonable is void, is still the law; but the particular conclusion at which the judge arrived that that particular contract was against public policy is entirely at variance with modern decisions. "What Lord St. Leonards said, in Egerton v. EarlBrownlow (4 H. L. C. 238), was this : ' Angry as the learned judge was at that infraction of the law, what has been the result of that very rule without any statute intervening ? That the common law, as it is called, has adapted itself, upon grounds of public policy, to a totally different and limited rule that would guide us at this day, and the condition which was then so strongly denounced is just as good a condition now as any that was ever inserted in a contract, because a partial restraint, created in that way, with a particular object, is now perfectly legal. Without any exclamation of the judge and without any danger of RESTRICTIONS ON PRACTICE. 121 prison, any subject of the realm may sue upon such a condition as Mr. Justice Hull was so very indignant at in that particular case.' ' : (Fry, L. J., in Dames v. Davies, 36 0. D. 359, at p. 397.) Lord Watson, in his judgment, in the recent Maxim- Nordenfeldt Case ([1894] A. C. 535), points out that, in England, at least, it is beyond the jurisdiction of her tribunals to mould and stereotype national policy, and remarks that the series of cases on this subject will be found to record the history of a protracted struggle between the principle of common honesty in private transactions, on the one hand, and the stern rule which forbade all restraints of trade on the other. Mr. Justice Kekewich, in giving judgment recently, in an action to enforce a restrictive covenant, said : " It is urged that you must construe this strictly against the covenantors, because provisions of this kind are odious to the law. That may have been said, and there may have been much in it, but to my mind, the odious character of these covenants has been exhausted, and the courts have considered them and limited their effect by restraining them within narrow limits, so that they are not odious to the law, and a covenant within these restricted limits, not to enter into business within certain allowed area nor beyond certain allowed purposes, is no longer against the law, but is recognised and enforced." (8howell v. Winkup, 60 L. T. 389.) The old cases seemed to make no distinction between General contracts in general restraint and contracts in partial restraints* 1 restraint of trade. It has always been held that contracts of trade, in general restraint of trade are void as being contrary to public policy, but contracts in partial restraint of trade have repeatedly been upheld in the courts, and the dis- tinction between a general restraint, and partial restraints, of trade " is embedded in the reports and text books of the last three centuries." In the leading case of Mitchel v. Reynolds, in 1711 (1 P. Leading case 122 RESTRICTIONS ON PRACTICE. of MitcM v. Reynolds. Adequacy of consideration is a matter for the par- ties, and the Court will not examine into it. App., p. 149. Wins. 181 ; Smith's Leading Cases, Vol. I.), it was laid down that the general rule is, " that all restraints of trade, which the law so much favours, are bad ; but to this general rule there are some exceptions ; as if the restraint be only particular in respect of time or place ; and there be a good consideration given to the party restrained. A contract or agreement upon such considerations, so re- straining a particular person, may bo good and valid in the law, notwithstanding the general rule. (Per "Willes, C. J., in The Master, Sfc. of Gtinmakcrs v. Fell, Willes, 388.) For a long time after the decision of Mitchel v. Reynolds, it was the practice of the courts to enquire into the value of the consideration received by the person restrained, and an agreement or bond given to effect a partial restraint of trade was held good or bad, according as the consideration was adequate or inadequate. It was, however, decided by the Exchequer Chamber, in 1837, in the case of Hitchcock v. Coker (6 A. & E. 438), and has since been regarded as settled law, that in cases of partial restraint the examination of the adequacy of the consideration is not properly for the Court, but for the parties who enter into the agreement ; although the burden remained as before upon the covenantee to show that there was some good and valuable consideration. The Court would not inquire whether the party submitting to the restraint made a judicious contract, or weigh whether the consideration was equal in value to that which the party gave up or lost by the restraint under which he placed himself ; it was enough that there actually was a conside- ration for the bargain, and that such consideration was a legal consideration and of some value. It was laid down in the course of the judgment of the Court, that if there is no consideration, or a colourable consideration of no real value, the contract in restraint of trade, which in itself is never favoured in law, must either be a fraud upon the rights of the party restrained, or a mere voluntary con- tract, a nudum pactum, and therefore void. RESTRICTIONS ON PRACTICE. 123 The same considerations in general apply to medical practices as apply to localised trades, and decisions in the cases of world-wide businesses and of trade secrets have little bearing upon present requirements. Shortly, the requisites of a valid covenant restricting the Requisites right to practice medicine and surgery are two : first, restrictive there must be a consideration, that is, some value, advan- covenant, tage or forbearance given or extended to the party whose right is to be restricted ; and secondly, the restrictive cove- nant must not impose a more extensive restraint than is necessary for the reasonable protection of the party who originally gave the consideration of which the covenant was the acknowledgment. It is obvious, therefore, that a restraint on medical practitioners must be limited as to space, for no practitioner can reasonably require to exclude another from the whole kingdom. A restrictive covenant is not necessarily unreasonable Need not be because it is not confined to the lifetime of the covenantee, lifetime or to such time as he shall continue to carry on business, of the person ITT T i 1 e protected for it is consistent with public policy that the owner 01 a from corn- business or a professional connection should be able to P etltlon - secure the value of it by assigning it to a purchaser, or should be able to bequeath it ; and in Hitchcock v. Coker App., p. 149. (6 A. & E. 349) ; Sainter v. Ferguson (7 C. B. 716) ; Mills App., p. 161. v. Dunham ([1891] 1 Ch. 576), and many other cases, restrictions co-extensive with the life of the covenantor have been held valid. A covenant not to practise, not prima facie limited as to time, will not be restricted in duration to the lifetime of the covenantee, unless it contains expressions pointing to a shorter period of restriction. (See Hastings v. Whitley, 2 Ex. 611), where the defendant had covenanted not to practise, within certain limits, at any time after the deter- mination of his engagement with W. " without the con- sent in writing of the said W." These latter words were held not to confine the period to W.'s lifetime. The argument that W. could not contemplate giving consent 124 RESTRICTIONS ON PRACTICE. Such cove- nants must be evidenced by writing. Do not cease when person protected ceases to practise. Reasonable- ness and validity de- pends on the nature of the trade or profession. App., p. 151. Covenant must be definite. App., p. 175. Must not be too wide. in writing except during his life was overruled, and the bond was held enforceable by W.'s executors. These restrictive covenants, not being prima facie agree- ments to be performed within one year of the making thereof, must be evidenced in writing so as to satisfy the Statute of Frauds. The restriction does not cease to operate in a case where the covenantee has ceased by himself or his assigns to carry on business (Elves v. Crofts, 10 C. B. 241), for if the contract is reasonable when it is made, subsequent cir- cumstances, such as the fact of the covenantee ceasing business, so as no longer to want protection, do not affect its operation. (S. C.). The reasonableness and therefore the validity of a re- straint depends very much upon the nature of the trade or practice which may require a larger or smaller district to carry it on, according to circumstances. A covenant to retire from medical practice altogether would not be enforceable, as such a stipulation would be a general restraint and contrary to public policy. (See Davies v. Dories, 36 C. D. 359 ; compare Perls v. Saalfeld, [1892] 2 Ch. 149.) A covenant to retire from practice altogether for even a limited time would be equally void. (See Ward v. Byrne, 5 M. & W. 548.) A restrictive covenant must not be vague in its terms, for the Court will not make a contract between the parties, but will only enforce a definite contract if such have been entered into by them (Da vies v. Dames) ; and the Court cannot create or carve out a new covenant for the sake of validating an instrument which would be otherwise void. (Baker v. ffedgecock, 39 C. D. 520.) Such a covenant need not however be in express terms, but maybe inferred from the recitals of a bond. (Gravely v. Barnard, 18 Eq. 518.) Every restraint which is larger than is required for the necessary protection of the party with whom the contract is made, is unreasonable and void, as being in- RESTRICTIONS ON PRACTICE. 125 jurious to the interests of the public, on the ground of public policy. Tindal, 0. J., in delivering the judgment of the Court of Exchequer Chamber, on appeal from the Court of Queen's Bench, in Hitchcock v. Coker (6 A. & E. 438), said: App., p. 149. " We agree in the general principle adopted by the Court Must not be that where the restraint of a party from carrying on a trade sufficient for is larger and wider than the protection of the party with the protection whom the contract is made can possibly require, such covenantee. restraint must be considered as unreasonable in law, and the contract which would enforce it must be therefore void." Fry, L. J., has pointed out that that passage was adopted by Lord Wensleydale, when a Baron of the Court of Exchequer, in delivering judgment in Ward v. Byrne (5 M. & W. 548), and therefore the rule so expressed has the authority of the Court of Queen's Bench, Exchequer, and Exchequer Chamber. (Fry, J., in his judgment in JRousillon v. Rousillon, 14 C. D. 351.) In Benwell v. Inns (24 Beav. at p. 312), Eomilly, M.E., A PP ., p. 167. said : " If one having a milk walk of one mile in diameter were to require a restriction far exceeding the limit of his walk, and there were no explanation of the necessity of such restriction, that might be an undue restraint of trade." If a restrictive covenant is in other ways wider than can be reasonably required, the fact that it is only stipulated to be binding for a short time will not make it less open to objection ; for what the law does not allow is not to be tolerated because it is of short duration. When a general restriction, limited only as to time, is imposed, the public are altogether losers, for that time, of the services of the individual, and do not derive any benefit whatever in return. (See Ward v. Byrne, 5 M. & W. 548, where a covenant App., p. 151. not to follow a certain trade for nine months was held void.) What is a reasonable restriction as to space in the case Reasonable of a medical practice will vary according to the nature of the practice. For instance, such limits as " within ten the nature of the practice. 126 RESTRICTIONS ON PRACTICE. App., p. H5. Country. App., p. 188. App., p. 171. App., p. H6. London. Surgeon- dentist. App., p. 147. App., p. 153. Distance measured aa the crow flies miles all round from Thetford " (Davis v. Mason, 5 Term Rep. 118) ; "within ten miles of Newton in Montgomery- shire" (Palmer v. Mallet, 36 C. D. 411) ; " Weymouth or within ten miles thereof," (Fox v. Scard, 33 Beav. 327) ; " Macclesfield or within seven miles thereof," and even a covenant " not to set up a surgeon in the town of Ayles- bury or within twenty miles " (Hay ward v. Young, 2 Chitty 407) ; have been held valid. In London a covenant not to practise or reside within two miles and a half from 28, Dorset Crescent, and a cove- nant not to reside or visit patients within three miles from an address in Park Street, Camden Town, have been up- held. A covenant by a surgeon-dentist not to practise in London has been held good, and an interlocutory in- junction was granted where a dentist's assistant had covenanted that he would not for fourteen years practise, or in any way engage in the practice or profession of a dental surgeon, either on his own account or as assis- tant to any dentist (other than the plaintiff) in the city of Chester, or in either of the counties of Chester, Flint, or Denbigh, within sixteen miles by the nearest road from Chester Cross, or in any place within the boundaries of the borough of Birkenhead (Sullin v. Teece, W. N. (1868), p. 196) ; but a covenant not to practise as a surgeon- dentist at or icithin 100 miles of tlie city of York has been held too wide to be enforced (Homer v. Graves, 7 Bingham 735), as has also a covenant by a surgeon- dentist that he would not after the end of his time of service practise in any of the towns where his principals might have been practising before the expiration of his service. (Mallan v. May, 11 M. & W. 653.) Where a radius is stipulated within which practice is not to be carried on, the distance is measured (unless some other method is adopted in the agreement) in a straight line " as the crow flies." (Mouflet v. Cole, L. B. 7 Ex. 70 ; 8 Ex. 32.) RESTRICTIONS ON PRACTICE. 127 If the district is not defined, or is made too extensive, Court will not the restraint will be entirely void, as the Court will not ^KSSsf* itself fix limits which it would regard as reasonable ; if, the reasonable however, there are two separate limits named, one of which is reasonable and the other unreasonable, the Court will K^ 3 , one reasonable enforce the restraint within the reasonable limits without and others regarding the illegality of the more extensive restriction ; unreasonable - and it will give effect to such restrictive stipulations as the party can legally bind himself to. The general rule is, that where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void ; but where you can sever them, you may reject the bad part and retain the good. This was so held, in 1726, in the case of Chesman v. Nairiby (2 Strange, 739 ; 1 Bro. P. C. 234), A PP ., p. 144. which ultimately went to and was affirmed by the House of Lords in 1727. In that case a bond was given by the defendant to the plaintiff in consideration of her teaching the defendant the trade of a linen-draper, conditioned that the defendant should not, after leaving the service of the plaintiff, carry on that trade within half a mile of the plaintiff's then dwelling-house, or of any other house that the plaintiff, her executors and administrators, should remove to. A breach was assigned within half a mile of the plaintiff's then house, but it was argued for the defen- dant that the clause as to removing made the restraint a general one. The defendant's counsel admitted that if the breach had been assigned upon the elsewhere, it might be difficult to support the bond, but contended that that part was good whereon the breach was assigned, and that if a bond was given, with condition to do several things, and some were agreeable to law, and some against the common law, the bond should be good as to the doing the things agreeable to law, and only void as to those that are against the law. The Court of King's Bench unanimously gave judgment in favour of the plaintiff, and this judgment was afterwards affirmed in the House of Lords. 128 RESTRICTIONS ON PRACTICE. App., p. 153. Court -will enforce covenants as to defined patients, although the words of the covenant may In the Maxim-Nordenfeldt Case, Nordenfeldt had cove- nanted that he would not for twenty-five years carry on the business of a manufacturer of guns and ammunition, or any business competing or liable to compete with that for the time being carried on by a company to whom he sold his business. The covenant was enforced as to the gun and ammunition business, that part of it being held separable from the restraint from all competition with the assignees. (See the judgments of the Court of Appeal, [1893] 1 Ch. 630.) On the same principle, where an assistant to a surgeon- dentist had covenanted that after the expiration of a term of service he would not practise in London or in any of the towns or places in England or Scotland where his employers might have been practising before the expiration of the said service, it was held, in an action for damages against him for practising in Great Russell Street, Bloomsbury, that the covenant not to practise in London was valid, the limit of London not being too large for the profession in question ; that the stipulation as to not practising in towns where the employers might have been practising during the service, was an unreasonable restriction, and therefore illegal and void; but that the stipulation as to not practising in London was not affected by the illegality of the other part. (Afatlan v. May, 11 M. & W. 653.) It is somewhat amusing to observe that subsequently, on a special case, the judges held that London must be taken in its proper sense as the City of London, and that the defendant was not liable to an action in damages for having carried on the profession of a surgeon-dentist in Great Russell Street, Bloomsbury Square. (13 M. & W. 517.) On the same principle of dividing the valid from the illegal portion of a restraint, where a party has covenanted that he will not solicit or attend the present patients of a practitioner, or such as shall have become patients during a contemplated term of partnership or service, and also RESTRICTIONS ON PRACTICE. those who shall become patients after the expiration of the also include contemplated term, the covenant will be held separable, patients. and at any rate good as regards those persons who have been patients prior to or during the subsistence of the relationship between the parties, and an injunction will be granted to restrain the covenantor from attending those in the first and second category, they being persons defined before the termination of the relationship ; while, as to those who become patients of the covenantee after the relationship has ceased, the restriction will be held not enforceable, they being a body undefined at the time the restraint is to begin to be effective ; otherwise the restraint would in fact operate as prohibiting attendance on such persons as might from time to time be named. (See Nicholls v. Stretton, 10 Q. B. 346 ; Baines v. Geary, 35 App., p. 187. C. D. 155.) An injunction will be granted to enforce the App., p. 186. restriction with regard to the sufficiently defined patients, even in a case where such patients have declared that they would not in any circumstances have called in the rival practitioner for whose benefit the restraint was imposed. (See Rogers v. Drury, 57 L. J. Oh. 504.) App., p. 190. It is not unreasonable that a person to be restrained Practitioner from practising within certain limits should, as an ad- ditional safeguard, be also restrained from residing within residing in certain limits. (Atkyns v. Kinnier, 4 Ex. 776 ; Raiclinson c v. Clarke, 14 M. & W. 187.) A covenant is sometimes stipulated for that a retiring practitioner shall not for a term let his house to a medical man ; or a covenant that the house of the retiring practi- tioner shall not, for a term, be let to any medical man in practice. Covenants analogous to these have been upheld. Where a contract in restraint of trade is partly verbal Parol and partly in writing, parol evidence may be given to evidence> sho w what the consideration for the restriction was. ( Cooper v. Southgate, 10 Rep. 552.) A covenant not to carry on business as a surgeon within Person certain limits is broken if the covenantor practises as musTnot act C. K as assistant. 130 RESTRICTIONS ON PRACTICE. App., p. 188. Employment is sufficient consideration to support restrictive covenant. App., p. 145. App., p. 175. Wrongful dismissal of mfitn"t does not allow him to practise in breach of restrictive covenant. App., p. 173. App., p. 143. Pott, p. 204. Restrictive covenant held void, where it was part of a scheme to allow an unqualified person to practise. assistant to another surgeon within these limits. (Palmer v. Mallett, 36 C. D. 411 ; of. Jones v. Heavens, 4 0. D. 636.) An agreement by a medical practitioner to employ as his assistant for such time as the master shall please the person who is to be restrained, or, an agreement to con- tinue such person's existing service as an assistant, has been held sufficient consideration to support a restrictive cove- nant. (Dames v. Mason, 5 Term Rep. 118 ; Gravely v. Barnard, 18 Eq. 518.) It has been held that the wrongful dismissal of the cove- nantor by the covenantee cannot be set up as a defence to an action for infringing the restrictive covenant (Proctor v. Sargent, 2 M. & Gr. 20), neither can the plea that the cove- nantee did not provide his assistant with a dwelling-house in accordance with a stipulation in the agreement which provided for the restriction. (Carnes v. Neslitt, 7 H. & N. 158, 778.) Also, where, in consideration of the assign- ment of a trade, and of a covenant to desist from using that trade with customers named, the purchaser of the goodwill covenanted to pay an annuity, it was held that a breach by the vendor of his covenant by trading with one of the customers did not entitle the purchaser to refuse pay- ment of the annuity, but the purchaser might have his action against the vendor for breach of the covenant on his part. (Hunkcke v. Blackloice, 2 Wins. Saund. 156 ; confer Judson v. Bowden, 17 L. J. Ex. 172.) In a case, however, where a qualified practitioner had entered into an agreement to assist an unqualified person in a medical practice which the latter was personally carry- ing on, and as part of that agreement had bound himself by a restrictive covenant, an injunction to restrain a breach of the covenant was refused on the ground that the agree- ment was illegal, as being a scheme to allow a medical man to practise without being duly qualified. It was inti- mated that the covenant would probably have been enforced if the unqualified person had been the mere centre of a RESTRICTIONS ON PRACTICE. staff of qualified assistants, and had not himself carried on the business of the medical profession. (Dames v. Makuna, App., p. 179. 29 0. D. 596.) A restrictive covenant entered into with two or more Either partners gives such partners joint and several interests in jj^e assistant the event of a dissolution of the partnership. Either on breach of A ~ a restrictive partner may sue to restrain a breach, and a release of the covenant. covenantor by one partner is no defence to an action by another. (Swallow v. Day, 12 Jur. 403 ; Palmer v. Mallet, A PP- P- 188 ' 36 0. D. 411.) A restrictive covenant adds to the value of the goodwill Benefit of of a business, and becomes, therefore, part of the goodwill, COV enant and is assignable with it, and passes by an assignment of P as . ses * *? f . r J assign of the the goodwill so as to give the assignee a right of action on goodwill of an infringement. (Jacoby v. Whitmore, 32 W. E. 18; Showell v. Winkup, 60 L. T. 389 ; Baines v. Geary, 35 App ' ^ 186> C. D. 154; Batho v. Tanks, W. N. (1892) 101.) In Benwett v. Inns (24 Beav. 307), it was held that an A Pp- P- 16 7- assignee of part only of the business of the original cove- the business. nantee was entitled to sue on such a covenant. It is sometimes the practice of friendly and provident Restrictive societies, on entering into agreements with their medical entered into officer, to stipulate that after the termination of his agree- ment with them he shall not practise in the neighbourhood, friendly but it does not seem to have been finally decided whether such a stipulation can be regarded as reasonably necessary for the protection of such societies so that they can enforce it by injunction. In a case of Everton and Others (trustees of a society at Walsall} v. Lynch, the defendant had entered into an agreement to become medical officer of the Walsall society, and had bound himself not to practise within five miles of Walsall for a term of three years from the termi- nation of his engagement. The defendant afterwards at the end of three or four years resigned and became the medical officer of another society, and it was alleged that as a result many members of the society had gone over to the rival organization in order to follow the defendant. K2 132 RESTRICTIONS ON PRACTICE. Wright, J., granted an interim injunction restraining the defendant from practising within five miles of Walsall, but a Queen's Bench Divisional Court (Mathew and Lawrance, JJ.), on the 18th of August, 1894, dissolved this injunc- tion, and said that the trial of the action should be expedited, they being of opinion that the case was one for a jury, that is, for damages and not for injunction. Homer, J., however, in a very similar case (Johnstone and Others v. Barkky, on the 22nd of August, 1894, "Law Times" of 25th August, p. 372), considered that an in- junction might be granted. As to avoid- An agreement entered into by competing practitioners, resident in the same district, to allot certain patients to allotting each, and stipulating that patients so allotted to one of the parties to the agreement should not be attended by the App., p. 178. others of them, would not be legally enforceable. (Collins v. Locke, 4 A. C. 674.) or districts. Probably an agreement of the same nature to avoid competition, by allotting similarly certain streets or villages lying within a narrow compass, to one party exclusively, would be held equally invalid, though there is a dictum of Lord Campbell somewhat to the contrary in the case of Shrewsbury and Birmingham Rail. Co. v. L. Sf N. W. Rail. Co. (21 L. J. Q. B. 89.) In Hilton v. Eckersky (6 El. & Bl. 47) certain manufacturers had entered into a bond to carry on their works, and in certain events to close them, in conformity with the resolutions of a majority. This agree- ment was held void as being in restraint of trade in the Court of Queen's Bench, and the judgment was confirmed in the Exchequer Chamber. Crompton, J., one of the judges, in giving his judgment in the Queen's Bench, said : " Most of such cases have occurred where one party has sold a trade or profession to another, or where one party has learned the trade and its secrets from the other, and where, on such considerations, stipulations have been entered into whereby the one party undertakes not to exercise the trade or profession within reasonable limits as RESTRICTIONS ON PRACTICE. to time and distance. In the present case, the agreement is, that in a certain event, all the parties contracting are to close their works. And the consideration of the promise of each is the promise of the others likewise to close their works. So that the public are not recompensed for the ceasing of the one party by the other parties being able to carry on their trade with increased facilities. It is, I believe, the first case where the mutually abstaining from trade has been the consideration for a bond of this nature." It is true that in Wickens v. Evans (3 Young & Jervis, 318) App., p. 147. (a case which does not appear to have been cited in Hilton v. Eckersky), three trunk-makers had divided the map of England into three districts, one of which was allotted to each party to the agreement, and mutually agreed that each of them might travel into and sell trunks in his allotted district without interruption from the other two respectively, and the agreement was held valid by the Court of Exchequer. But medical practitioners do not interfere with each other save within limited areas, and in such a case as that supposed the Court might adopt the principle of Collins v. Locke rather than that of Wickens v. Evans. There is no objection to an agreement that the fees received from certain patients or from certain districts should be allotted either wholly or in certain proportions to certain parties to an agreement, notwithstanding that the work may be done by a party who does not receive the fees for it. For each party may in turn receive benefit from such a provision ; it is no restraint put upon practice but merely a method of profit-sharing or " pooling " receipts. (See Collins v. Locke, ubi supra.} App., p. 178. A restriction upon practice is usually secured either by Bond in a a bond in a penal sum given by the person to be restrained f^Ues" conditioned to be void if he shall not practise within the ment not to limits, or if he shall pay a stipulated sum of money on so prac lse ' practising; which bond will be read as implying a covenant on the part of the obligor that he will not so practise. 134 RESTRICTIONS ON PRACTICE. App., p. 175. (Gravely v. Barnard, 18 Eq. 518 ; National Prorinrial App., p. 191. 2?r/& v. Marshall, 40 C. D. 112) ; or "by an express covenant by the person bound that he will not so practise, or if he do so practise, he shall pay a stipulated sum or stipulated sums of money as " liquidated damages." The liquidated damages may be fixed either at one lump sum payable once for all on any infringement of the covenant not to practise ; or as separate sums payable upon separate in- fringements ; or for each day or week or month during which the person to be restrained shall practise contrary to the restriction. It is convenient that the stipulated sums should be expressed to be payable as "liquidated damages" : that is to say, that the parties agree that the sum or sums stipulated shall be assessed between them as the damages that may be recovered on action brought in consequence of the breach of the covenant or various covenants without giving actual proof of damage suffered. Liquidated Where the intention is to secure the performance of a penalty? ? contract by the imposition of a fine or penalty, the sum named is a penalty, and the party damnified can recover only the amount of damage which he has actually sustained. The expressions of the agreement, however, are not con- clusive, and whether the sum stipulated to be paid for a breach is to be treated as a penalty or as liquidated damages is a question of law to be decided upon a consideration of the whole instrument and the surrounding circumstances. In Mercer v. Irving (E. B. & E. 563) the sum of 300/. named in a restrictive bond entered into by a surgeon on selling his practice was not expressed as " liquidated damages," and in an action against the covenantor the jury assessed the actual damages sustained at 25/., but the plaintiff was held entitled to recover the whole 300/. In App., p. 161. Sainter v. Ferguson (7 C. B. 716) the sum mentioned in the agreement was called a penalty, but was held by the Court to be liquidated damages and not a mere penalty; and conversely in certain cases a sum expressed to be payable as liquidated damages has been held to be in fact a penalty, RESTRICTIONS ON PRACTICE. especially where the money was made payable in respect of the doing or failure to do any of a number of things of different degrees of importance, some of which might result in very inconsiderable damages. Where articles " contain covenants for the performance of several things, and then one large sum is stated at the end to be paid upon breach of performance, that must be considered as a penalty ; but where it is agreed that, if a party do such a particular thing, such a sum shall be paid by him, there the sum stated may be treated as liquidated damages." (Astky v. Weldon, 2 B. & P. 346.) Generally speaking the liquidated damages can only be recovered on breach of the principal object of the covenant, and not of some collateral safeguard. In Wallis v. Smith (21 0. D. 243), in the Court of Appeal, the rule laid down by Jessel, M.E., and adopted by the Court, was that where a sum of money is stated to be payable either by way of liquidated damages, or by way of penalty for breach of stipulations, all or some of which are, or one of which is, for the payment of a sum of money of less amount, that is really a penalty and you can only recover the actual damage, and the Court will not sever the stipulations. When, however, the contract contains a condition for the payment of a sum of money as liquidated damages for the breach of stipulations of varied importance, none of which is for the payment of an ascertained sum of money, the general rule is that the sum named is not to be treated as a penalty but as liquidated damages, though perhaps if one of the stipulations was of very trivial importance it might be treated as a penalty. (See also Law v. Local Board of Redditch, [1892] 1 Q. B. 127.) With regard to the forfeiture of purchase-money to be As to for- paid by instalments, see the recent case of Barton v. Cape- in s talments. well Continental Patents Co. (5 Reports, 374). A deposit paid by a purchaser being a guarantee for the fulfilment of the contract by him may be retained by the vendor even in the absence of any stipulations as to its forfeiture, if the 136 RESTRICTIONS ON PRACTICE. purchaser makes default; and a stipulation that a first instalment which has been paid on an agreement for the sale of a practice or other property, shall be forfeited as liquidated damages if the purchaser makes default in com- pleting will be held binding. But where an agreement is made that purchase-money shall be payable by instalments at specified times, and in case of default by the purchaser in paying any of the instalments all payments made shall be absolutely forfeited to the vendor as liquidated damages, the sums mentioned will be considered as penal sums and their forfeiture as liquidated damages will not be enforced, for the damages would be increased according as the pur- chaser had paid more instalments. Care should be taken to express in the agreement or bond, if such be the intention, that the restraint is to be binding after the termination of the rest of the agreement ; as in some cases assistants have argued that the restrictive covenant was only intended to bind them du route scrvitio. App., P . 173. (See Cames v. NfBlitt, 7 H. & N. 158, 778; 30 L. J. N. S. Ex. 348 ; 31 Ib. 273 ; compare King v. Hamell, 5 H. & N. 106.) Protected Where a practitioner is protected by a restrictive cove- Beuler nant secured by a bond or by an agreement to pay a sum for damages as liquidated damages, the covenantee, if the restraint is tion%ut not" infringed, has a right both at law and in equity, and could, for both. under the old practice, obtain relief in either, but not in both Courts; he could choose his jurisdiction and the remedy he would have. The party whose right was infringed could either sue on the bond or agreement for the damages, or he could apply in the Courts of Equity for an injunction restraining the covenantor from continuing to practise within the defined limits. Where, in the old cases, the complainant desired relief by way of injunction, the practice was for him to file his bill in equity, which was ordered to stand over until the legal right should be established in an action at law. If the plaintiff succeeded and took nominal damages only, he could then obtain RESTRICTIONS ON PRACTICE. 137 equitable relief by way of injunction, but if he obtained substantial damages, or even proved against the defendant in bankruptcy, the Court of Equity, if he came back to it, dismissed his bill, considering that the plaintiff had had his remedy at law, that the contract no longer existed, and that the defendant, from whom the damages had been recovered, had, at any rate where the damages were fixed at a lump sum, in effect, purchased the right to practise within the limits from which he had been before excluded. (See Sainter v. Ferguson, 1 Mac. & Or. 286 ; Fox v. Scard, App., p. iei. 33 Beav. 327.) App., P . 171. This cumbrous practice is now happily obsolete, as by Courts of the Chancery Eegulation Act, 1862 (Sir John Rolfs Act), ^3 it was enacted that in all cases in which any relief or fu ll relief, remedy within the jurisdiction of the Courts of Chancery should be sought in any suit or matter instituted therein, and whether the title to such relief or remedy should be or should not be incident to or dependent upon a legal right, every question of law or fact cognisable in a Court of Common Law, on the determination of which the title to such relief or remedy depended, should be determined by or before the same Court. Sometimes the liquidated damages are fixed not at a single lump sum, but at stipulated amounts payable in respect of each single breach, or for each day or week during which there shall be any continuing breach. If the covenantee has recovered some of such amounts, it will not be possible for the covenantor to contend that he has purchased any right to practise indefinitely, as the sums recovered are only liquidated damages in respect of such breaches as are sued on ; but if afterwards the covenantee applied for an injunction, it would probably be refused, as the covenantee would be held to have already elected which form of remedy he would have. The plaintiff in applying for an injunction often offers to waive any penalties recoverable under his bond or agree- ment, the injunction being in his view the only adequate 138 RESTRICTIONS ON PRACTICE. remedy; and the Court in granting relief by way of injunction has called upon the plaintiff to undertake not App., p. 175. to sue for the damages (see e.g., Howard v. Woodward, 34 L. J. Ch. 47) ; but it has been said by Romilly, M.K., that even without any express waiver, if after obtaining an injunction to enforce a restraint of this nature the covenantee sues for damages, the defendant may come to App., p. 171. the Court and have the injunction dissolved. (Fox v. Scard, 33 Beav. 327.) Protected Where the protected practitioner elects to recover the on recovering liquidated damages, he is treated as selling the right to tatfT^toh 18 P rac tise at a price fixed beforehand, and, as was said by sold the right Campbell, C.J., " On the damages being paid, the agree- 18e ' ment will be at an end, and the defendant may practise as much and wherever he choose." Protected It is embarrassing to claim both an injunction and the stipulated damages, as the plaintiff cannot ask for both ; whether he and therefore a practitioner protected by a restrictive damages or covenant with stipulated damages should, where his right is infringed, elect his remedy before he issues his writ, and should not embarrass the defendant by claiming relief both by way of injunction and of the liquidated damages. App., p. 173. In the case of Games v. Nesbitt (1 H. & N. 158, 778 ; 30 L. J. Ex. 348 ; 31 Ib. 273), the plaintiff claimed both kinds of relief ; and, although at an early stage offered to waive the damages and take the injunction, he was held to have precluded himself, by the endorsement on his writ, from claiming an injunction ; he recovered the liquidated damages, but the injunction was refused. In a very recent case, however, Gent v. Harrison, noted in 95 L. T. Jo. 296, the plaintiff, who made such a double claim, was more leniently treated. There the defendant had entered into an agreement that he would not for the space of three years .... act as a tailor, &c., within a certain radius, under the penalty of 500/. as liquidated damages. On a breach of the agreement the plaintiff claimed both an injunction and the liquidated damages. An interim RESTRICTIONS ON PRACTICE. 139 injunction was granted on motion, and the action was ordered to be set down for the point of law to be argued whether the defendant would not, on payment of the 500/. liquidated damages, be absolved from any obligation under the agreement. The plaintiff afterwards withdrew his claim for damages, and at the hearing, Kekewich, J., held that the defendant ought, when the motion came on, to have called on the plaintiff to elect whether he asked for an injunction or for liquidated damages, as he could not have both, and the pleadings were therefore embarrass- ing to the defendant ; but he held also that the defendant, having gone on, was too late in taking the point, and there must be an injunction against him as asked. The Courts have jurisdiction to grant damages in lieu Court bound of the specific relief ; but where there has been deliberate ^f^tion breach of a contract, the Court has no right to measure where there the damage and no right to refuse the plaintiff the specific deliberate* 1 performance of the contract. (See remarks of Jessel, M.R., breach of in Leech v. Schweder, 10 Ch. at p. 468.) Where no liquidated damages are named in the bond or agreement, the plaintiff may ask for an injunction and for damages; and even where there are liquidated damages named, it would appear, from the remarks in Carnes v. App., p. 174. 'Nesbitt, 30 L. J. Ex. 349, that it is still open to the protected party to claim an injunction and unliquidated damages. The party, however, who has covenanted not to practise Party re- and agreed to pay liquidated damages on any infringe- jjj?dwt to"" ment, or who has given a bond, (which bond will be con- pay damages ... ... j. i i e 'L andgainright strued as containing an agreement not to infringe its to practise, condition : see London and Yorkshire Banking Co. v. Pritt, 32 W. E. 135) that he will pay liquidated damages if he practise within certain limits, has not the option of paying the sum stipulated and recovering his freedom to practise where he will (see National Provincial Bank of England v. App., p. 191, Marshall, 40 C. D. 112) ; though if proceedings are insti- tuted against him both for an injunction and for the liqui- 140 RESTRICTIONS ON PRACTICE. dated damages he can call upon the plaintiff to elect which remedy he will pursue. Bankruptcy Where a practitioner, who has covenanted to pay liqui- restrained dated damages in case he should practise within certain from practice, limits, becomes bankrupt, the liquidated damages would appear, although such practitioner have not infringed the covenant, to be a contingent liability to which the bank- rupt was liable, and to be a debt provable in bankruptcy, capable of being estimated under the Bankruptcy Act of 1883, s. 37 (3) and (4). It would, however, be in most cases unwise to attempt to prove for such hypothetical damages, as the estimated value of such a contingent liability would assuredly be very small ; and the bankrupt would become entitled to practise free from the restraint, protected for the future against either damages (as they would have been legally recovered) or proceedings by way of injunction, for the covenantee would have elected to take the alternative remedy. If the covenantee refrains from proving in the bankruptcy, and the covenantor after bankruptcy commits a breach of the restriction, it would seem that the covenantee, having so elected not to take the damages for which he might have proved, would not be precluded from obtaining an injunction. Of course, no damages could be recovered after a bankruptcy had inter- vened, and no claim had been made in it. In Jones v. Heavens (4 C. D. 636), where the defendant had covenanted not to carry on a business within certain limits under a penalty of 100/., an injunction was granted, although the defendant had after the covenant and prior to the breach filed a liquidation petition. The point, how- ever, that the liability to pay the 1001. was a debt provable in the liquidation proceedings appears not to have been taken. (Confer Rolimon v. Ommaney, 21 C. D. 780 ; 23 C. D. 285.) Proceedings to obtain an injunction where a covenant in restraint of trade has been infringed, being actions to enforce specific performance of a contract, are instituted in RESTRICTIONS ON PRACTICE. 141 the Chancery Division of the High Court of Justice, which will adjudicate on the legality of the covenant. The Court will exercise its discretion as to granting an Discretion of injunction, but this discretion must be exercised according ~^ an to fixed and settled rules. If there has been material injunction is delay on the plaintiff's part, or if with a full knowledge fettled rules, of his rights he has lain by, and by his conduct encouraged others to expend money in contravention of rights which he afterwards asserts, he cannot come to the Court and obtain relief by injunction. The plaintiff is entitled to apply for an injunction as soon as his legal right is invaded, and he is under no obligation to give the defen- dant any notice before commencing an action. It is usual and advisable for the plaintiff, as soon as interim possible after commencing his action, to apply to the Court m i unctlon - for an interim or interlocutory injunction to restrain, until the hearing or until further order, the alleged violation of a covenant of this nature. To entitle the plaintiff to an interlocutory injunction the Court should be satisfied that there is a serious question to be tried at the hearing, and that on the facts before it there is a probability that the plaintiff is entitled to relief. If the plaintiff shows such a prima facie case the Court will grant an interlocutory injunction wherever it appears " just or convenient " so to do, and where a covenant is deliberately infringed it is the duty of the Court to interfere, even on an interlocutory appli- cation, and to grant an injunction, notwithstanding that the injury resulting from the infringement is very trifling; for if a contract has been duly entered into between parties it is no answer to a violation of it to say that it will not inflict any injury upon one of the contracting parties. A perpetual injunction will not be granted before the hearing of the action; but where upon an interlocutory motion the plaintiff obtains the relief which he seeks in the action, he is bound to apply to the defendant to have the costs disposed of on the motion, and unless he does so he is precluded from having the extra costs occasioned by 142 RESTRICTIONS ON PRACTICE. going on to trial. But if the defendant refuses to allow the matter to be disposed of on motion, or if there is any question remaining open between the parties to be decided, the ease cannot be so dealt with. (See Sonnenschein v. Barnard, 57 L. T. 712.) Where the defendant submits to the whole demand of the plaintiff and to pay the costs, he has a right at once to stop all further proceedings. (Swell v. Abraham, 32 Beav. 598.) Costa- The plaintiff, on succeeding in obtaining an injunction, is, in general, entitled to have his costs. " Where a plaintiff comes to enforce a legal right, and there has been no misconduct on his part no omission or neglect which would induce the Court to deprive him of his costs the Court has no discretion and cannot take away the plaintiff's right to costs. There may be misconduct of many sorts ; for instance, there may be misconduct in commencing the proceedings, or some miscarriage in the procedure, or an oppressive or vexatious mode of conducting the proceed- ings ; or other misconduct which will induce the Court to refuse costs. But where there is nothing of the kind the rule is plain and well settled, and is as I have stated it. It is, for instance, no answer, where a plaintiff asserts a legal right, for a defendant to allege his ignorance of such right and to say, If I had known of your right, I should not have infringed it." (Jessel, M.B., in Cooper v. Wliit- tingham, 15 C. D. 501.) When an injunction is granted, it must be obeyed implicitly. Any breach of an injunction or of an under- taking given to the Court may be enforced by writ of attachment, or by committal of the offending party. 143 APPENDIX OF CASES ON RESTRICTIVE COVENANTS. Hunlocke v, Blacklowe. (2 Wms. Baund. 156.) That vendor of goodwill has carried on business contrary to his covenant is no defence to the purchaser in action for unpaid purchase-money. In the case of Hunlocke v. Blachloive, decided in 1670, the plaintiff, a tailor, had assigned his trade to the defendant and all the benefit of the customers named in a schedule, and had covenanted " That he would from thenceforth leave off and desist from using and exercising the trade of a tailor with any of the customers named in the schedule, and the defendant, in con- sideration of the performance thereof, covenanted to pay the plaintiff an annuity. The plaintiff sued for payment of the annuity by quarterly payments ; the defendant pleaded in bar that the plaintiff within fifteen days after the date of the agreement used and exercised the art and mystery of a tailor for and with P. (one of the customers named in the schedule) for the sole benefit of the plaintiff, &c., to which plea the plaintiff demurred. It was argued for the defendant that the words in con- sideration of the performance thereof made a condition prece- dent, so that when the plaintiff had broken his covenant by trading with one of the customers, the defendant was not bound any longer to pay the annuity ; and here the plaintiff had traded with one of the customers before any payment of the annuity became due, and therefore the defendant was discharged from the payment. Judgment was given by the Court of King's Bench for the plaintiff on the ground that it plainly appeared that the intent was the plaintiff should have the annuity, and therefore it was not a condition, but the defendant might have his action of covenant against the plaintiff for breach of the covenant on his part. 144 RESTRICTIVE COVENANTS. David Chesman and Wife v. Nainby (17257). (2 Strange, 739 ; 2 Ld. Eaym. 1456 ; 1 Bro. P. 0. 234.) . Where covenant in restraint of trade is partly legal and partly illegal, a breach of the legal part may be sued on without regarding the unreasonableness of the other part. Elizabeth Chesman had while single entered into a bond with Margery Nainby, which recited that Margery Nainby was " to take her for her hired servant, to attend in her shop, and to inspect her customers there, and to show her goods, and further to stand by and assist her the said Margery in her trade and business of a linen-draper, whereby it is presumed the said Elizabeth, if she continues any length of time in the said service of the said Margery, may become a perfect and knowing person in the said trade and mystery ; and whereas the said Margery Nainby consents to hire and take the said Elizabeth upon and in consideration only upon the express promise and agreement of the said Elizabeth that she the said Elizabeth shall not, nor will at any time after she shall have left the service of her the said Margery, set up or exercise the trade or mystery of a linen-draper either by her- self, or by any other person or persons in trust for her use, either directly or indirectly, in any shop, room, or place within the space of half a mile of the said now dwelling- house of the said Margery Nainby, situate in Drury Lane, or any other house that she the said Margery Nainby, her executors or administrators, shall think proper to remove to in order to carry on the said trade of a linen-draper ; nor shall she the said Elizabeth, within the same space of half a mile, directly or indirectly, be concerned in or assist or instruct any other person or persons in the managing and carrying on of the said trade, under colour or pretence of being a servant to such person or persons, or under any other colour or pretence whatsoever, wnich said express promise and engagement, joined with the good character and opinion that she the said Margery hath in the integrity and honesty of her the said Elizabeth, is the sole consideration and induce- ment that hath obliged the said Margery to take the said Elizabeth into her service for the space of three years." The condition of the bond was for the payment of 1001. in case of a breach by the said Elizabeth. The plaintiff continued to live in Drury Lane and to exer-- cise her trade there till the bringing of the action. Elizabeth after leaving the plaintiff married David Chesman, and in- structed him in the trade within the half mile. RESTRICTIVE COVENANTS. 145 The plaintiff obtained a verdict in the Court of Common Pleas, and a writ of error was brought in the King's Bench. The defendant's counsel said: "The first part of the re- straint is, indeed, only particular ; the defendant is particu- larly restrained from setting up the trade within half a mile of the dwelling-house of the plaintiff in Drury Lane. So far it may be good : but then it is added, ' or any other house that the said Margery Nainby, her executors or administrators, shall think proper to remove to ' : this makes it a general restraint, because it puts it in the power of the plaintiff to prevent the defendant from exercising the trade in any part of the kingdom." The plaintiff's counsel said : " I do not think myself obliged to maintain every part of the condition of this bond. I am afraid if the breach had been assigned upon the elsewhere, or upon the clause which speaks of executors and administrators, it might be difficult to support it ; but what I rely upon as an answer in this case is, that the condition is good as to that part whereon the breach is alleged." He argued that if a bond be given with condition to do several things, and some are agreeable to law, and some against the common law, the bond should be good as to the doing the things agreeable to law, and only void as to those that were against the law. The breach was assigned upon part of the condition which was good in law, and, therefore, if the other part to which exception was taken should be against law, yet that would not hinder the plaintiff's recovery upon that part of the con- dition which was legal. The whole Court was of opinion that the verdict for the plaintiff should be affirmed, and this judgment was after- wards unanimously affirmed in the High Court of Parliament. Davis v. Mason (1793). (5 TermEep. 118.) Restraint of practice for fourteen years, and limit often miles round Thetford in the case of a surgeon, held to be reasonable. Taking an assistant into service is sufficient consideration for a restrictive covenant. Davis v. Mason, in 1793, appears to be the earliest reported case of a restraint of this nature between medical men. The plaintiff sued on a bond for 2001. , the condition of which (after reciting that the plaintiff had taken the defendant as an c. L 146 RESTRICTIVE COVENANTS. assistant in the business of a surgeon, &c., and that the defen- dant had agreed with the plaintiff not to exercise the business on his own account within the distance of ten miles from Thet- ford, where the plaintiff resided, for fourteen years), was that the defendant would not exercise the business, &c. within that distance, &c. It was argued that the bond was unreasonable, both in the duration and limits of the prohibition ; that four- teen years was too long, and the limit of ten miles all round from Thetford was too extensive ; also that it was repugnant to every principle of justice that a medical man should be restrained by law from giving his assistance, even in the greatest extremity, and when there was no time to wait for other help. But above all that the consideration was inade- quate, as, the moment the defendant had executed the bond, the plaintiff might have dismissed him. It did not appear that the plaintiff had engaged to instruct the defendant in his profession, or to pay wages or to retain him in his service for any certain length of time. Lord Kenyon, C.J., in giving judgment for the plaintiff, said : "A bond in restraint of trade cannot be arbitrarily taken, and without consideration ; some consideration must appear. But here, the plaintiff being established in business as a surgeon at Thetford, the defendant wished to act as his assistant with a view to deriving a degree of credit from that situation ; on which the former stipulated that the defendant should not come to live there under his auspices and steal away his patients. This seems to be a fair consideration for the bond. Then it was objected that the limits within which the defendant engaged not to practise are unreasonable, but I do not see that they are necessarily unreasonable, nor do I know how to draw the line. Neither are the public likely to be injured by an agreement of this kind, since every other person is at liberty to practise as a surgeon in this town." Hayward v. Young (1818). (2 Chitty, 407.) In Aylesbury or within twenty miles held reasonable. A condition in a bond "not to set up as surgeon or man- midwife in the town of Aylesbury or within twenty miles " was held valid. Abbott, C. J., in giving judgment for the plaintiff, said : " May not the business of an apothecary extend for twenty miles, and might not the setting-up within that distance be injurious to him" ? RESTRICTIVE COVENANTS. Wickens v. Evans (1829). (3 Y. & J. 318.) Tradesmen divided England and Wales into districts, and cove- nanted not to travel into each other's districts. Held reasonable. In Wickens v. Evans, three persons, the plaintiff, the defen- dant, and another, who were carrying on the trade of trunk- makers, and had sustained inconvenience and loss through their competition with each other, divided the map of England and Wales into three districts, one of which was allotted to each, and mutually agreed that each of them might travel into and sell trunks in his allotted district without interrup- tion from the other two respectively ; and further agreed that they would not allow any goods in their trade to be manu- factured in or sent out from their respective shops into, or participate in the profit arising from the sale of such goods in, each other's district, or should forfeit a liquidated sum for each breach. The defendant, in breach of the agreement, travelled into the plaintiff's district, and committed several breaches of the agreement, and was sued by the plaintiff for the liquidated damages. The defendant demurred, alleging that the agree- ment operated in general restraint of trade, and was void ; or was an agreement for partial restraint, without sufficient consideration, and that it was an illegal combination. The judges held that the restraint of trade was only partial, and that there was sufficient consideration for it. Each party had, before the agreement, a right to trade in all the districts : he agreed to retire and to relinquish the trade in two of those districts in order to secure the others in undisturbed posses- sion. In consequence of the loss and inconvenience which the parties had before sustained, they entered into the agreement ty which the loss and benefit to each was reciprocal. Horner v. Graves (1831). (7 Bingham, 735.) Limits of " at or within 100 miles of the city of York " held un- reasonable in the case of a surgeon-dentist. In the case of Horner v. Graves, the plaintiff, a surgeon- dentist of York, had engaged the defendant, a dentist of some skill, as his assistant at a salary, and had covenanted to 148 RESTRICTIVE COVENANTS. instruct him in the business or profession of a surgeon-dentist to the best of his skill and knowledge. The defendant had agreed faithfully and diligently to serve as the plaintiff's assistant, and that ho would not at the determination of the engagement (provided the plaintiff were then living and practising in the profession or business of a surgeon-dentist) exercise or practise the profession of a surgeon-dentist at or within 100 miles of the city of York, without the previous consent in writing of the plaintiff, under the penalty of 1,000/. to be forfeited and paid by the defendant, as and for liquidated damages. After the determination of the term the defendant practised within the prescribed limits. It was argued in behalf of the defendant that the restraint was unreasonable ; that the agreement was mischievous to the defendant and the public without being productive of any corresponding advantage to the plaintiff. That the defen- dant was estopped to practise over a circle the diameter of which was 200 miles, containing nine whole counties and parts of eight more. If the plaintiff were to labour night as well as day it would be physically impossible for him to draw all the teeth of such a district. If he left home, York was without the benefit of his skill, if he remained at York, patients might die in Lancaster. This was not like a trade which a man might conduct by his agents ; the health of the public was endangered without the possibility of any advantage to the plaintiff. The Court of Common Pleas held that the contract was one which contained a restraint of the defendant to carry on his trade, far larger than was necessary for the protection of the plaintiff in the enjoyment of his trade, and consequently that the covenant creating such restraint could not form the sub- ject of an action. Tindal, C.J., in delivering the judgment of the Court, cited the rule laid down in Mitchell v. Reynolds (IP. Wms. 181) : " That voluntary restraints, by agreement between the parties, if they amount to a general restraint of trading by either party are void, whether with or without consideration, but particular restraints of trading, if made upon a good and adequate consideration, so as to be a reasonable restraint only, are good," and said that, " Upon the bare inspection of this deed it must strike the mind of every man that a circle round York traced with the distance of 100 miles, encloses a much larger space than can be necessary for the plaintiff's protection. The nature of the occupation, which is one that requires the personal presence of the practiser and patient together at the same place, shows at once that the plaintiff has shut out the defendant from a much wider field than can by possibility be occupied beneficially by himself. There is, therefore, on the RESTRICTIVE COVENANTS. 149 one hand, no reason why the defendant should not gain his livelihood, nor on the other why the public should not receive the benefit of his skill and industry through so wide a space." Hitchcock v. Coker (1837). (6 Ad. & E. 439 ; 6 L. J., N. S., Ex. 266.) Covenant in restraint of business held reasonable, although it is not restricted to the lifetime of the covenantee or to the time during which he may carry on business, and is co-extensive ivith the covenantor's life. The Court will not examine into the adequacy of the consideration if there is some considera- tion given. In Hitchcock v. Coker, the plaintiff was a druggist, and had taken the defendant into his service as an assistant at an annual salary, and the defendant entered into an agreement, founded upon the consideration of being received as an assistant, that if he should at any time thereafter directly or indirectly in his own name or that of any other person, exercise the trade or business of a chemist and druggist at Taunton, or within three miles thereof, the defendant should pay the plaintiff 500?. as liquidated damages. The defendant exercised the trade in Taunton, and the plaintiff obtained a verdict for the 500?. The question of the validity of this agreement was argued ultimately before the Court of Exchequer Chamber (Tindal, C.J., Lord Abinger, C.B., Gaselee and Vaughan, JJ., Holland and Alderson, BB.), and it was contended for the defendant that the consideration was not adequate to the restraint ; and further, that the restraint was oppressive, as it was not limited to the life of the plaintiff or to the time during which he would carry on the business. Judgment was given for the plaintiff. Tindal, C.J., who delivered the judgment of the Court, said : " We agree in the general principle that, where the restraint of a party from carrying on trade is larger and wider than the protection of the party with whom the contract is made can possibly require, such restraint must be considered as un- reasonable in law, and the contract which would enforce it must be therefore void. But the difficulty we feel is in the application of that principle to the case before us. Where the question turns upon the reasonableness or unreasonableness 150 BESTRICTIVE COVENANTS. of the restriction of the party from carrying on trade or business within a certain space or district, the answer may depend upon various circumstances that may be brought to bear upon it, such as the nature of the trade or profession, the populousness of the neighbourhood, the mode in which the trade or profession is usually carried on, with the know- ledge of which, and other circumstances, a judgment may be formed whether the restriction is wider than the protection of the party can reasonably require. But with respect to the. duration of the restriction the case is different. The goodwill of a trade is a subject of value and price. It may be sold, bequeathed, or become assets in the hands of the personal representative of a trader. And, if the restriction as to time is to be held to be illegal, if extended beyond the period of the party by himself carrying on the trade, the value of such goodwill considered in those various points of view is altogether destroyed. If, therefore, it is not unreasonable, aa undoubtedly it is not, to prevent a servant from entering into the same trade in the same town in which his master lives, so long as the master carries on the trade there, we cannot think it unreasonable that the restraint should be carried further and should be allowed to continue, if the master sells the trade, or bequeaths it, or it becomes the pro- perty of his personal representative ; that is, if it is reasonable that the master should by an agreement secure himself from a diminution of the annual profits of his trade, it does not appear to us unreasonable that the restriction should go so far as to secure to the master the enjoyment of the price or value for which the trade would sell, or secure the enjoyment of the same trade to his purchaser, or legatee, or executor. And the only effectual mode of doing this appears to be by making the restriction of the servant's setting up or entering into the trade or business within the given limit co-extensive with the servant's life " We cannot, therefore, hold the agreement in this case to be void merely on the ground of the restriction being indefinite as to duration, the same being in other respects a reasonable restriction. " But it was urged in the course of the argument, that there is an inadequacy of consideration in this case, with respect to the defendant; and that, upon that ground, the judgment must be arrested. Undoubtedly in most, if not all, the decided cases, the judges, in delivering their opinion that the agree- ment in the particular instance before them was a valid agree- ment, and the restriction reasonable, have used the expression that such agreement appeared to have been made on an adequate consideration, and seem to have thought that an adequacy of consideration was essential to support a contract RESTRICTIVE COVENANTS. in restraint of trade. If by that expression it is intended only that there must be a good and valuable consideration, such consideration as is essential to support any contract not under seal, we concur in that opinion. If there is no consideration, or a consideration of no real value, the contract in restraint of trade, which in itself is never favoured by law, must either be a fraud upon the rights of the party restrained, or a mere voluntary contract, a nudum pactum, and therefore void. But if, by adequacy of consideration, more is intended, and that the Court must weigh whether the consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to differ from that doctrine. A duty would thereby be imposed upon the Court, in every particular case, which it has no means whatever to execute. It is impossible for the Court, looking at the record, to say whether, in any particular case, the party had made an improvident bargain or not. The receiving instruction in a particular trade might be of much greater value to a man in one condition of life than in another ; and the same may be observed as to other considerations. It is enough, as it appears to us, that there actually is a considera- tion for the bargain, and that such consideration is a legal consideration, and of some value. Such appears to be the case in the present instance, where the defendant is retained and employed at an annual salary. We therefore think, not- withstanding the objections which have been urged on the part of the defendant, that the plaintiff has shown upon the record a legal ground of action, and having obtained a verdict in his favour, that he is entitled to judgment." Wardv. Byrne (1839). (5 M. & W. 548 ; 9 L. J., N. 8., Ex. 14.) Covenant in general restraint of a particular business is void for however short a time it is to endure. In Ward v. Byrne, the plaintiff, a coal merchant, had taken the defendant into his service, and the defendant had executed a bond, the conditions of which contained, amongst other stipulations, " and also if the said B. shall not follow or be employed in the said business of a coal merchant, either directly or indirectly, for the space of nine months after the said B. shall have left the employment of the said "W." 152 RESTRICTIVE COVENANTS. Breach was assigned that the defendant, within nine months after he left the employment of the plaintiff, did follow and was employed in the said business. The defendant had acted as clerk to another coal merchant: the plaintiff sued on the bond, and a verdict was entered for plaintiff. A motion to arrest judgment, on the ground that the agree- ment was void in law as being in restraint of trade, was argued before the Court of Exchequer (Lord Abinger, C.B., Parke, Gurney, and Eolfe, BB.), and the agreement was held illegal and void. Lord Abinger, C.B., said, in the course of his judgment : " The obligation which the defendant undertakes by his bond is, that he shall neither be or serve a coal merchant in any capacity for nine months. That goes so far beyond what the plaintiff could require, that it is an unreasonable restriction : it is void on both grounds. It is against the principles and policy of the law as to any restraints on trade, and the right of every man to be at liberty to struggle for his own existence in the exercise of any lawful employment ; and it is beyond what is necessary for the protection of the plaintiff, or what the justice of the case demands. I think, therefore, that this contract cannot be enforced, and that the judgment ought to be arrested. Parke, B., said : " Where a limit as to space is imposed, the public, on the one hand, do not lose altogether the services of the party in the particular trade, he will carry it on in the same way elsewhere ; nor within the limited space will they be deprived of the benefit of the trade being carried on, because the party with whom the contract is made will most probably within those limits exercise it himself. But when a general restriction, limited only as to time, is imposed, the public are altogether losers, for that time, of the services of the individual, and do not derive any benefit whatever in return." Eolfe, B.. said : "The general policy of the law is against these restrictions, and it is only in deference to the conveni- ence of the trading part of the community that certain excep- tions to the general rule have been allowed. Those exceptions have always left things in this state, that, when allowed, a portion of the public is not injured at all ; that portion of the public to which the restriction does not extend remains exactly as it did before the restriction took place. But in this case, the whole of the public is restrained during the period in question, and the only argument is, that this is to endure only for a short time ; that is to say, that what the law does not allow is to be tolerated, because it is of short duration. I see no principle in favour of such a conclusion. I do not think RESTRICTIVE COVENANTS. 153 this is the law ; and I consequently concur with my learned brothers in saying that this contract is void." Mallan v. May (1843). (11 M. &W. 653; 12 L. J. Ex. 376 ; 14 ib. 48.) Covenant not to practise as a surgeon-dentist in London or any towns or places in England or Scotland ivhere the plaintiffs might have been practising while the defendant ivas their assistant. Held, a reasonable restraint so far as London was concerned, but unreasonable as to the other places. The plaintiffs, who were surgeon- dentists, had entered into an agreement with the defendant that the defendant should become their assistant and should be instructed by them in the business of a surgeon- dentist for the term of four years. And it was agreed that, after the expiration of the said term of four years, the defendant would not, directly or indirectly, carry on or be concerned as principal, assistant, or agent in the profession of a surgeon-dentist or any branch thereof in London or any of the towns or places in England or Scotland where the plaintiffs or the defendant on their account might have been practising before the expiration of the said service. The declaration alleged as breaches first, that the defen- dant, after the term, carried on the said business in London ; secondly, that the plaintiffs had, during the term, carried on business at a place in Middlesex, called Great Russell Street, Bloomsbury ; yet the defendant, after the term, carried on the said business in the same place. The defendant pleaded to the first breach " that London in the said agreement and declaration mentioned at the time of making the agreement was and from thence hitherto hath been and still is a certain large and populous district and place, containing more than one million of inhabitants, to wit, one million and half of inhabitants," and that the stipulation touching the defendant carrying on the profession of a surgeon-dentist in London was an undue, unreasonable, and unlawful restriction of trade, and by reason thereof the agreement as to so much thereof was wholly void. The defendant also pleaded, to the first and second breaches, that the plaintiffs, by themselves and through the defendant on their account, had, during the term, practised at many named towns, some of them distant 1 50 miles from each other, 154 RESTRICTIVE COVENANTS. and that the stipulation touching the defendant being con- cerned in the profession of a surgeon-dentist in any of the towns or places in England or Scotland where the plaintiffs or the defendant on their account might have been practising during the term was unreasonable and void. The judgment of the Court of Exchequer was delivered by Parke, B., who said in the course of the judgment : "Total restraints of trade, which the law so much favours, are abso- lutely bad, and all restraints, though only partial, if nothing more appear, are presumed to be bad ; but if the circumstances are set forth, that presumption may be excluded, and the Court are to judge of these circumstances and determine whether the contract be valid or not It is for the Court to determine whether the contract be a fair and reason- able one or not, and the test appears to be whether it be pre- judicial or not to the public interest ; for it is on grounds of public policy alone that these contracts are supported or avoided. Contracts for the partial restraint of trade are upheld, not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints on trades are perfectly consistent with public convenience and the general interest, and have been supported : such is the case of the disposing of a shop in a particular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is, in effect, the sale of a goodwill, and offers an encouragement to trade, by allow- ing a party to dispose of all the fruits of his industry. And such is the class of cases of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer, or a professional man taking a servant or clerk into his service with a contract that he will not carry on the same trade or profession within certain limits. In such a case the public derives an advantage in the unrestrained choice which such a stipulation gives to the employer of able assistants, and the security it affords that the master will not withhold from the servant instructions in the secrets of the trade, and the communications of his own skill and experi- ence, from the fear of his afterwards having a rival in the same business. ... In the present case the statements in the deed declared upon show that the defendant was to be in- structed in a business requiring skill and intelligence, and upon the principles above laid down the contract not to exer- cise the same business within certain reasonable limits was not invalid. "The question then comes to this, whether the limits assigned by the covenant are unreasonable. It may be safely RESTRICTIVE COVENANTS. 155 laid down .... that, whatever restraint is larger than the necessary protection of the party with whom the contract is made is unreasonable and void, as being injurious to the interest of the public on the ground of public policy. " Applying this rule, and referring to the analogous autho- rities, it appears to us that for such a profession as that of a dentist the limit of London is not too large .... and it makes no difference, in our opinion, that it appears on the face of this record, that London contains a million of inhabit- ants. We doubt, indeed, whether the comparative populous- ness of particular districts ought to enter into consideration at all ; and if it did it would be difficult to exclude others, such as the number of men of the same profession, the habits of the people in that neighbourhood, and other matters of a fluctuating and uncertain character, which would produce great difficulty and embarrassment in determining such a question " We are of opinion, therefore, that the covenant, the breach of which is that first assigned, is valid. " The question raised by the demurrer to the last plea renders it necessary to consider whether the covenant on which the second breach is assigned is good in law, upon the principle before laid down ' ' According to the terms of this covenant the defendant is prohibited from carrying on his business, not merely at such place or places as the plaintiffs might be practising in at the time of the expiration of the service, but at any place where they might have been practising before, though for ever so short a time. This covenant goes much beyond what the protection of any interests of the plaintiffs could reasonably require, and it puts into their hands the power of preventing the defendant from practising anywhere. We are therefore of opinion that it is an unreasonable restriction, and the defendant is entitled to our judgment on the demurrer to the second breach. " It was contended, that, if the covenant was illegal and void as to this part, it was so altogether. But we think that the stipulation as to not practising in London is valid, and is not affected by the illegality of the other part." The same case came again before the Court of Exchequer (13 M. & W. 511) as to the meaning of the word London, and the Court held that London in the proper sense of the word meant the City of London, and there was no reason for the Court to give to London a popular or colloquial sense, in which Great Russell Street would be understood to be within its limits. 156 RESTRICTIVE COVENANTS. Rannie v. Irvine (1844). (7 Man. & Gr. 969 ; 14 L. J. C. P. 10.) A covenant in restraint of business is enforceable if when entered into it is reasonable. In the case of Rannie v. Irvine, before the Court of Common Pleas, the defendant, a baker, had assigned for value the lease of his shop and the goodwill of his baking business, to the plaintiff, and had agreed that he would not set up or carry on, directly or indirectly, during a certain term, the business of a baker within one mile of the said shop under the payment of the sum of 200/., to be sued for and recovered by way of liquidated damages, for every month in which the defendant should commit any breach of the covenant; and also that the defendant would not during such term solicit the custom of or knowingly supply bread or flour to any of the customers then dealing at the said shop, without the con- sent in writing of the plaintiff, under the penalty of 200/., to be sued for and recovered as liquidated damages for each infraction. A breach was assigned that during the period mentioned the defendant had knowingly supplied bread to F. and B., two customers before and at the time of the said agreement dealing at the shop, and had become liable to pay to the plaintiff two several sums of 2001. and 200/. On demurrer the point was argued that the agreement declared on was contrary to public policy and illegal, in that it restrained the defendant from supplying bread and flour to particular persons wherever they might reside, without limit in point of space as to those persons, and \mder all circum- stances, whether such persons changed their residences or continued customers of the plaintiff or not, which was a restraint larger and wider than the protection of the plaintiff could possibly require, and the same must therefore be con- sidered as unreasonable and void in law. Judgment was given for the plaintiff on the demurrer. Tindal, C.J., said : " Upon the best construction I can put upon this agreement it does not appear to me to be such a contract in restraint of trade as to compel us to hold it void. The first part of the agreement that the defendant would not directly or indirectly set up or carry on during the term the business of a baker within one mile of the premises disposed of is admitted to be good. But it is contended that the latter branch of the agreement, whereby the defendant engages that he will not during the said term solicit the custom of, or knowingly supply bread or flour to, any of the customers then dealing at the said premises without the con- RESTRICTIVE COVENANTS. 157 sent in writing of the plaintiff, is such a restriction upon the defendant's right to trade as renders the agreement void, as being contrary to public policy. In the first place it is to be observed that this is not a general restraint of trade, but only restricts the defendant from trading with a very limited number of persons whose names were well known to him at the time he entered into the contract ; and it would not carry the case further than the first part of the agreement, provided the customers continued to reside in the same place. But it is argued that the customers may remove to another district, and that this contract would prevent the defendant from supplying them with bread and flour whithersoever they might go, al- though they might not be able to obtain so necessary an article as bread from any one else. If, however, the contract is a reasonable one at the time it is entered into, we are not bound to look out for improbabilities and extravagant con- tingencies in order to make it void. It does not seem to me that in holding this contract to be good we shall be at all extending the doctrine laid down in Hunlocke v. Blacklowe (2 "Wins. Saund. 156). Undoubtedly in that case (where the point was not taken, probably because the very learned per- son by whom it was argued did not think it tenable) the customers were named in the schedule. That makes no sub- stantial difference, for here the names of the customers would all appear in the defendant's book, and the restraint was virtually limited to a given number of persons ascertained and agreed on by the parties at the time. I think, therefore, our judgment must be for the plaintiff." Maule, J., said : " The general rule against covenants in restraint of trade is founded upon this, that the law favours trade for the sake of the public, and not for the sake of the parties engaged in it. And the reason of the exception grafted upon the rule is, that the exception is a furtherance of the rule itself. If it were held that a party selling the goodwill of a business could not restrain himself from using for his own profit that which he has agreed to sell, that would operate as a restraint of a very injurious kind. But it is objected here that the restraint goes beyond the limit allowed by the law and what is necessary for the effectual security of the vendee. The provision is, that the defendant shall not during the term solicit the custom of, or knowingly supply bread or flour to, any of the customers then dealing at the premises without the consent in writing of the plaintiff. That must receive a reasonable construction. For instance, it can- not be held to apply to a dealing in any other trade than that of a baker ; nor do I think that the giving bread to an old customer in the way of charity would be an infraction of the contract, and yet both of these cases would fall within the 158 RESTRICTIVE COVENANTS. literal construction of the contract. If, then, we are to give it a reasonable construction, such construction would probably exclude the case that has been put, of this baker and some of his old customers going to some distant spot where bread would be procurable only from him. The possibility that some such extravagant case may occur will not make a restriction unreasonable that is otherwise reasonable and just." Coltman, J., and Erie, J., gave judgment to the same effect. Green v. Price (1845). (13 M. & W. 695 ; 16 ib. 346 ; 14 L. J. Ex. 105, 225 ; 16 ib. 108.) A tradesman (a wholesale perfumer] on dissolution of a partner- ship covenanted not to carry on the trade in London or West- minster, or within 600 miles therefrom. Held, that the covenant teas divisible, and was good as to London and Westminster, though void as to the 600 miles. Jury directed to assess the damages at the full amount mentioned as liquidated damages. Green v. Price was an action of covenant brought by the plaintiff as executor of John Gosnell. It had been agreed by deed between the defendant and John Gosnell, who had carried on business as perfumers in partnership, that the defendant for 2,100/. should assign to Gosnell his moiety in the goodwill and assets of the partnership, and in consideration thereof, the defendant covenanted with John Gosnell, his executors, &c., that the defendant would not at any time during his life, use, exercise, or carry on within the cities of London and Westminster, or within the distance of 600 miles from the same respectively, the trade or business of a perfumer, toyman and hair merchant, or any trade or business lately carried on by the defendant and Gosnell in partnership ; and for the observance of this covenant, the defendant did thereby bind himself, his heirs, &c., to the said John Gosnell, his executors, &c., in the sum of 5,000/., as and by way of liquidated damages, and not of penalty. The defendant, who had set up in business in his own name in Lombard Street in the City of London, pleaded that the said cities of London and Westminster, and the said distance of 600 miles from the same respectively, within which the defendant was prohibited from carrying on trade, comprised RESTRICTIVE COVENANTS. 159 and included the whole kingdom of England, the dominion of Wales, and the town of Berwick-upon-Tweed, together with a large portion, to wit, nineteen-twentieths of the kingdom of Scotland, and therefore the said supposed covenant was and is void in law. On demurrer on this plea, the Court held that the covenant was divisible, and was good so far as it related to the cities of London and Westminster ; and that a breach assigned that the defendant carried on the trade in the city of London was good ; and judgment was given for the plaintiff. On the execution of the writ of inquiry before Chief Baron Pollock, the jury were directed to assess the damages at 5,000/., which they did accordingly. Ultimately, the case came before the Exchequer Chamber, and is reported 16 L. J. Ex., p. 108 ; and it was held that the covenant was divisible, and that though void as regarded the distance of 600 miles from London and Westminster, it was good as regarded the cities of London and Westminster them- selves. Also, that the jury were properly directed to assess the damages at the whole 5,000/., and not to ascertain the actual damage, that being the sum named, and the intention of the parties being clear and unequivocal. Rawlinson v. Clarke (1845). (14 M. & W. 187 ; 14 L. J. Ex. 364.) Where a surgeon who had covenanted not to practise within certain limits attended patients at the request of the covenantee, held no breach. In Rawlinson v. Clarke, the defendant had by deed assigned to the plaintiff his business as a surgeon and apothecary carried on by him in Park Street, Camden Town, and the defendant covenanted that he would not .... carry on or exercise his practice ... .by residing or visiting any patient within three miles from the defendant's place of business, and in case of breach of the covenant, would pay to the plaintiff the full sum of 500/. as liquidated damages and not as a penalty. The defendant afterwards attended several persons within the three miles, and on one occasion received a sum of 141. 14s. for his services, but he attended these persons with the knowledge and consent of the plaintiff in consequence of a request by him that the defendant should for a time continue to visit the patients to keep the connection together. 160 RESTRICTIVE COVENANTS. The jury in an action on the covenant found that the defen- dant in these instances exercised the practice of a surgeon for the purpose of assisting the plaintiff. The verdict was there- upon entered for the plaintiff for 500/. damages, with liberty to the defendant to move to enter a verdict for him, or to reduce the damages to 71. 7s., which the jury found to have been the actual damage sustained by the plaintiff. A motion was made accordingly, and a rule obtained to show cause on the first point ; the rule was refused as to the reduc- tion of the damages by the Court, consisting of three of the four judges who had decided the recent case of Green v. Price, for the reasons stated in that case ; as for a breach of the covenant, the measure of damages was the full sum of 500/. The plaintiff's counsel argued that the parol licence could not discharge a covenant under seal, but the Court held that the defendant was not carrying on business for himself, but was carrying on the business for the plaintiff, and a verdict was entered for the defendant. Hastings v. Whitley (1848). (2 Ex. 611.) Covenant not to practise enforced against the covenantor after the death of the covetiantee. In Hastings v. Whitley, the plaintiffs were the executors of one Kenrick Watson, a surgeon and apothecary, practising at Stourport. The defendant had been the assistant of Watson and had entered into a bond, the condition of which was that if the defendant should, either as principal or assistant, or either alone or in partnership with any person, exercise or practise, or assist in exercising or practising the profession or business of a surgeon or apothecary at Stourport, or within the distance of ten miles in any direction therefrom, at any time after the termination of his engagement with the said Watson, without the consent in writing of Watson first obtained, then and in such case, if the defendant should forthwith pay or cause to be paid to Watson, his executors, administrators, or assigns, the sum of 1,000/., then the bond should be void and of no effect, otherwise it should remain in full force and vigour. Watson died, and the defendant was sued on the bond as having practised at Stourport. RESTRICTIVE COVENANTS. 161 The defendant pleaded that he did not in the lifetime of Watson practise contrary to the conditions. In proceedings on demurrer one of the defendant's points for argument was that the bond was illegal and void if the condition should be construed to extend to the defendant's practising the said profession after the death of "Watson. The Court (Barons Parke, Alderson, and Rolfe) decided in favour of the plaintiffs. Parke, B., said : " The words at any time, primd facie import that the period is not to be confined to the life of the obligee, but that it is co-extensive with that of the obligor ; and it was held in Hitchcock v. Coker that there was nothing illegal in the restriction being indefinite as to duration, the same being in other respects a reasonable restriction " Now, as this is primd facie a restriction which is not limited as to time, what is there in the terms of the condition to confine it to a period of the testator's lifetime ? The only terms which can allow any other construction to be put upon it are the words ' without the consent in writing of the said K. Watson,' and I do not think that these words shorten the period. The defendant would be bound to get Watson's con- sent if he practised. If he practised without his consent and without paying the 1,000^., he would be liable to the penalty of the bond. I think, therefore, that by putting the ordinary construction on the words of this condition, the defendant has failed to show that he has performed it so as to relieve him- self from the penalty of the bond." Sainter v. Ferguson (1849). (1 Mac. & GK 286; 1 Com. B. 716; 18 L. J. C. P. 217; 19 L. J. Ch. 170.) Defendant on being engaged as assistant agreed not to practise within certain limits under a "penalty of 500/." Engage- ment held sufficient consideration. Penalty construed as liquidated damages. Plaintiff having recovered judgment for damages not allowed to obtain an injunction. In Sainter v. Ferguson, the plaintiff, who was a surgeon and apothecary at Macclesfield, had on April 12th, 1848, entered into an agreement in writing with the defendant as follows : " In consideration that S., of Macclesfield, surgeon and apothecary, will engage me, F., as assistant to him as a surgeon and apothecary, I, the said F., promise the said S. C. M 162 RESTRICTIVE COVENANTS. that I will not at any time practise in my own name, or in the name or names of any other person or persons, as surgeon or apothecary at Macclesfield, or within seven miles thereof, under a penalty of 500/. And I, the said S., do hereby agree with the said F. to engage the said F. as an assistant to me as a surgeon and apothecary on the terms aforesaid." The plaintiff discharged the defendant in August, 1848, and the defendant immediately commenced practice in Maccles- field, on which the plaintiff applied for an injunction, but the Court refused to interfere, on the ground that the plaintiff's equity depended on the legal effect to be given to the agree- ment, but ordered the motion to stand over with liberty for the plaintiff to bring such action as he might be advised. The plaintiff accordingly brought an action against the defendant, claiming the 500/., the penalty mentioned in the agreement. The case was tried at the Chester Spring Assizes in 1849, where, on the part of the defendant, it was objected that the agreement was void as an unreasonable restraint of trade, inasmuch as it professed to bind the defendant not to practise at any time as a surgeon and apothecary at Macclestield, or within seven miles thereof, and that the 500/. was in the nature of a penalty merely, and not liquidated damages. Under the direction of the judge, Cresswell, J., the jury found for the plaintiff, damages 500/., the points of law being reserved. In the argument before the Court of Common Pleas, it was contended on behalf of the defendant that the fair meaning of the contract was that the defendant should not practise so long as he remained in the service of the plaintiff ; that there was no consideration, as the plaintiff was at liberty to dismiss the defendant at any moment ; and that the judge had miscarried in telling the jury that the 500/. might be treated as liquidated damages and not as a penalty. It was not unimportant to observe that the agreement itself used the word penalty only. Judgment was given for the plaintiff by Wilde, C.J., and Coltman, Cresswell, and V. Williams, JJ. Wilde, C.J., said in his judgment : " It would seem that the parties were not prepared at the date of the contract to fix the period or the terms of the engagement, but left that to be matter for future discussion. The stipulation for the restriction of the defendant's prac- tising at Macclesfield or within the prescribed limit was to have effect only when the subsequent definitive engagement should have been entered into. Supposing the plaintiff to be a person of skill and reputation, the very fact of his engaging the defendant as his assistant would give the latter a great advantage as a rival, inasmuch as his being so authenticated RESTRICTIVE COVENANTS. 163 would naturally give him an opportunity of worming into his employer's connection. An engagement, therefore, even for a short time, would be advantageous to the defendant and detrimental to the plaintiff. But we must suppose that the parties contemplated an engagement reasonable in point of time and other circumstances. It may fairly be assumed that an offer of an engagement which was merely illusory would be rejected by the defendant, and in that case he would not be subjected to the proposed restrictions. He, therefore, would have the means of protecting himself. The plaintiff contracts to enter into a reasonable engagement with the defendant, that is, in effect, to offer such reasonable terms as the defendant would be bound to accept. Looking at the contract, therefore, as importing an engagement which will have the defendant's assent, and the declaration alleging that the plaintiff did, in pursuance of the agreement, engage the defendant as assistant, I think it discloses a sufficient con- sideration. The next question is, whether the 5001. men- tioned in the agreement is to be considered as liquidated damages or not. It is now clearly settled that, whether the sum mentioned in an agreement to be paid for a breach is to be treated as a penalty or as liquidated and ascertained damages is a question of law, to be decided by the judge upon a consideration of the whole instrument. This agree- ment does not prohibit the defendant's doing several distinct and independent acts, each of which might be incapable of exact estimation, nor does it involve any of the circumstances that have, in any of the cases, induced the Court to hold the sum to be a penalty only. The whole object of the plaintiff was to protect himself from a rival, and it would be impossible in such case to say what damage might result to him from a breach of the agreement. It is not unreasonable, therefore, that the parties should themselves fix and ascertain the sum that should be paid. And I think we can only give effect to the contract of the parties by holding the 5001. to be liquidated damages and not a mere penalty." The other judges gave judgment to the same effect. Coltman, J., said: "As to the second point, I agree with the Lord Chief Justice that, although the word 'penalty,' which would primd facie exclude the notion of stipulated damages, is used here, yet we must look at the nature of the agreement and the surrounding circumstances to see whether the parties intended the sum mentioned to be a penalty or stipulated damages. Considering the nature of this agree- ment and the difficulty the plaintiff would be under in showing what specific damage he had sustained from the defendant's breach of it, I think we can only reasonably M 2 164 RESTRICTIVE COVENANTS. construe it to be a contract for stipulated and ascertained Oesswell, J., said : " With respect to the damages, I concur in what has fallen from the Lord Chief Justice and my brother Coltman. If there be only one event upon which the money was to become payable, and there is no adequate means of ascertaining the precise damage that may result to the plain- tiff from a breach of the contract, it is perfectly competent to the parties to fix a given amount of compensation in order to avoid the difficulty." Judgment was accordingly signed in the action for 500/. damages, and loo/. 6s. costs. The defendant having become bankrupt, the plaintiff proved for the amount of costs only, and in June, 1849, applied to Knight Bruce, V.-C., for an injunction, which his honour granted on condition that the plaintiff should not prove for the 500/. The defendant moved to discharge the injunction. In the proceedings before the Lord Chancellor, his lordship said (1 Mac. & G. p. 289) : " The Court of Law has determined that the word ' penalty ' in the agreement means liquidated damages, and, therefore, there is no right of action now remaining It comes, in fact, to this that after the defendant has paid the price of doing the act, the Court is asked to restrain him from doing that act for which he has paid." And in his judgment the Lord Chancellor said: " When a party comes here for an injunction against the breach of an agreement, the Court assumes jurisdiction, because the remedy at law is not efficient, and the interest of the party requires that the act should be prevented, instead of his merely receiving compensation in the shape of damages ; but this jurisdiction is exercised in reference to the right established by the legal contract. In the present case, a party having bound himself by contract not to practise as a surgeon and apothecary under a penalty of 500/., violates his agreement, this agreement, according to the construction put on it by a Court of Law, being held to mean, ' You shall not practise, or if you do, you must pay 500/.' The plaintiff, with whom the contract was entered into, came to this Court and asked for an injunction, not having then brought any action, and, as in other cases where there is a legal right in question, the Court ordered the matter to stand over until the legal right should be established. It is true that if the plaintiff had seen the difficulty which has since arisen, he might have put the matter so as to have had the option left him either of exercising his legal right or his equitable remedy, and not to have been precluded from the alternative which, before the action, he had, either to ask for an injunction, or to obtain compensation at law. The order, however, does not provide RESTRICTIVE COVENANTS. 165 for this ; it places the plaintiff under no restriction ; it only refuses to interfere until the legal right has been tried. It was then the plaintiff's own choice to go on, and the matter now stands just as if the plaintiff had brought the action first, and then come to this Court for an injunction. Now it could not be contended that after obtaining damages at law the plaintiff could have come here for an injunction, but what has taken place is just the same in effect. The Court refused the injunction at the time when no action had been brought ; the damages have since been obtained, and the Court has now to consider whether it will interfere to aid a contract which, in .fact, no longer exists. The party now applying cannot show that he has any legal right remaining, and the Court cannot, therefore, interfere. If the Court did interfere, it would be telling a party that, though he had purchased the right to do the act, he should not have the benefit of his purchase." Atkyns v, Kinnier (1850). (4 Exch. 776 ; 19 L. J. Ex. 132.) Surgeon covenanted not to practise or reside within two-and-a- half miles of a London address, with liquidated damages in case of infringement. Covenant broken as to residence, and the liquidated damages awarded. In the case of Atkyns v. Kinnier, the defendant, who was a surgeon, accoucheur and apothecary, residing at 28, Dorset Crescent, in London, had agreed in consideration of a present payment of 400/., and a further payment of 380/., to be made at the end of the partnership term, to enter into partnership with the plaintiff for the term of three years, and the defen- dant had covenanted that he would not, after the determina- tion of the partnership, either alone or in partnership with any other person, and neither for fee and reward or gratuit- ously, follow or practise in the profession or business of a surgeon, accoucheur, or apothecary, at No. 28, Dorset Crescent (the defendant's then residence), or within the distance of two-and-a-half miles thereof, measuring by the usual streets or ways of approach thereto, nor reside within the distance of two-and-a-half miles of No. 28, Dorset Crescent, without the consent in writing of the plaintiff, and that the defendant would not by any means whatsoever attempt to prevail on any of the patients of the defendant, or of the partnership, to withdraw from the plaintiff, or to employ any other medical RESTRICTIVE COVENANTS. attendant in prejudice to the plaintiff, but, on the contrary, would in all things endeavour to promote and advance the business and advantage of the plaintiff in the profession of a surgeon, &c., so far as it was in the power of the defendant, and as he could reasonably and properly be required to do, and that if the defendant should in any respect break or infringe this stipulation, then, and in such case, he should immediately pay to the plaintiff, his executors or adminis- trators, the sum of 1,000/. as and for liquidated damages, and not by way of penalty ; but the restriction was not to prevent the defendant from attending any person as a physician or physician-accoucheur, or prescribing as such within the distance of two-and-a-half miles. After the determination of the partnership term, the plaintiff sued the defendant for the sum of 1,000/., alleging that the defendant resided within the distance of two-and-a-half miles of No. 28, Dorset Crescent, measuring by the usual streets or public ways of approach thereto, to wit, at an address in Southwark. It appeared at the trial that the defendant's residence in Southwark was more than two miles and a half from No. 28, Dorset Crescent, if measured by the public thoroughfare most frequented by carriages, but if measured by another public thoroughfare along which carriages seldom passed, it was a few feet within the two miles and a half. There was no evidence that the plaintiff had sustained any damage from the circumstance of the defendant residing where he did. It was submitted on behalf of the defendant that the distance ought to be measured by the most frequented road, that as the breach of covenant alleged was not the practising as a surgeon, but merely the residing within the prescribed distance, such a restraint was unreasonable and void, and that the 1,OOOJ. was a penalty, and not liquidated damages. The judge, Rolfe, B., told the jury that the plaintiff had a right to measure the distance by any of the public streets usually frequented, and the jury under his direction found a verdict for the plaintiff for 1,000/., leave being reserved to the defen- dant to move to reduce the damages to one shilling. On the motion for a new trial the judges of the Exchequer Chamber unanimously upheld the decision of the judge below. Pollock, C.B., said : " The stipulation is express that if the defendant shall practise or reside within two-and-a-half miles from No. 28, Dorset Crescent, measuring by the usual streets, he shall pay the plaintiff 1,000/. Here the defendant did reside within that distance measuring by one of the usual ways, though he was beyond it according to another. I can conceive many cases where what may be called private policy may render it necessary for a party to guard against some- KESTEICTIVE COVENANTS. 167 tiling which may be easily converted into a means of damage, not because the act is of itself injurious, but because it is a sort of guard or fence, to prevent something else which is injurious from being done. In like manner public policy has, for the protection of the Bank of England against forgery, rendered it criminal to make paper bearing the same water- mark as Bank of England notes. The making of such paper is in itself an indifferent act, but inasmuch as it may afford facilities to forgery, the legislature has on that account pro- hibited the act. The same motive may operate on the mind of a man in private life, and induce him to frame stipulations similar to those which, it is argued, we ought to construe as illegal because unreasonable and contrary to public policy." Parke, B., pointed out that the covenant not to reside had reference to the benefit of the trade, and did not apply to mere residence, it being, therefore, connected with the cove- nant not to carry on the trade, and that being legal and bind- ing, the covenant not to reside was legal and binding also. With regard to the question of damages the same judge said : "If a party agrees to pay 1,0001. on several events, all of which are capable of accurate valuation, the sum must be construed as a penalty, and not as liquidated damages. But if there be a contract consisting of one or more stipulations, the breach of which cannot be measured, then the parties must be taken to have meant that the sum agreed on was to be liquidated damages, and not a penalty. In this case there is no pecuniary stipulation for which a sum certain of less amount than 1,0001. is to be paid, but all the stipulations are of uncertain value. Possibly this may have been a very imprudent contract for the defendant to make, but with that we have nothing to do. Upon the true construction of the deed, the amount is payable by way of liquidated damages, and not as a penalty." Ben well v. Inns (1857). (24 Beav. 307 ; 26 L. J. Oh. 663.) Where one has entered into a restrictive covenant with the owner of a business, the assignee of a part of the business can sue for an injunction on a breach of the covenantor. Employ- ing the covenantor as a servant is sufficient consideration for his entering into such a covenant. One Wright had a dairy farm at Peckham Bye, and in connexion with it two London establishments for the sale of 168 RESTRICTIVE COVENANTS. milk, one in the City, and the other at Charles Street, Grosvenor Square. The latter was under the management of the plaintiff, and was carried on under the title of the Friern Manor Dairy Farm. By an agreement dated the 26th of July, 1852, Wright agreed to take the defendant into his service for one month certain, and until a month's notice to determine the contract and service should be given, in consideration whereof the defendant agreed faithfully to serve Wright, or his future co-partners, executors, administrators, assignees, or successors in business, and would not, during the continuance of such service, nor within the space of twenty-four calendar months after quitting or being discharged from the same, commence, carry on, or be concerned in any way whatsoever either as servant or master, in the trade or business of a cowkeeper, milkman, milk-seller, or milk-carrier within the distance of three miles from Charles Street, Grosvenor Square. The agreement stipulated that if he did, he would pay to Wright, his co-partners, executors, administrators, successors, or as- signees ten shillings for every day he should act contrary to the agreement, to be recovered as liquidated damages. In 1854, Wright, for valuable consideration, assigned to the plaintiff the goodwill of the branch business carried on in Charles Street with the shop, trade fixtures, and utensils on the premises. The agreement with the defendant was handed to the plaintiff on his purchasing the business, as one of the incidents or appurtenances of the business, and the defendant, who had been attached to the branch business in Charles Street, was continued as milk-carrier. Wright covenanted not to carry on a similar business within certain limits. The defendant gave notice, and in July, 1857, quitted the plaintiff's service, and immediately began to serve the plain- tiff's customers with milk, and endeavoured to supplant the plaintiff in his business in the district. The plaintiff filed a bill to enforce the agreement. It was contended for the defendant that the agreement had been made with reference to the business carried on in Peck- ham and London ; the plaintiff, therefore, did not stand in the position of assignee of Wright. The contract was not divisible. Wright could no doubt restrain the defendant from carrying on the farming business. Also the wages and allowances received by the defendant were not sufficient to support an agreement which was to debar the defendant from trading on his own account. Komilly, M.K., said : " The agreement was good when it was entered into, and it is good now. Its validity is not affected by the transactions that have taken place between the parties. It was objected that the plaintiff is not assignee RESTRICTIVE COVENANTS. 169 of the business within the meaning of the agreement ; I think he is, he is assignee of a part of that which was referred to in the agreement ; I see nothing to make this agreement void upon the ground of its being the assignment of part of the business. It was then said that the defendant received no consideration for the agreement. His being a servant at wages was quite sufficient to support the agreement. The defendant ought to have considered the terms of the agree- ment before he entered into it ; he could not object to it after- wards. It was then said that the agreement could not be supported because it was in restraint of trade, and that it would be unreasonable to protect a person in the enjoyment of one mile of milk-walk. If one having a milk-walk of one mile in diameter were to require a restriction for exceeding the limit of his walk, and there were no explanation of the necessity of such restriction, that might be an undue restraint of trade ; but I am of opinion that this agreement was con- fined within reasonable limits. The plaintiff came to the district as the successor of Wright, and the defendant's con- tract applied to that district. The injunction must, therefore, be continued for two years from the date of the notice ; and it will be a virtual breach of it if the defendant assists any other milkman." Giles v. Hart (1859). (1L. T. N. S. 154; 8 W. E. 74.) Agreement between surgeon and assistant contained a restraint on the assistant's practising after the termination of the agreement. There was a clause allowing the assistant to determine the ivhole agreement. Held, that on the assis- tant's giving notice so to determine it, the restraint on prac- tice was still in force. In the case of Giles v. Hart, by indenture, in 1854, con- taining terms on which the defendant became the plaintiff's assistant, the defendant had covenanted that he would not, while acting as such assistant, or after he should cease so to act, and whether the plaintiff should be living or not, and whether the said indenture should be in other respects deter- mined or not, practise in Coggeshall or within five miles therefrom. The deed further provided that it should be law- ful for the defendant by giving one month's notice to deter- mine the then present indenture and the covenants and agreements therein contained, and after the expiration of the 170 RESTRICTIVE COVENANTS. month, that the said indenture should cease and determine, subject nevertheless and without prejudice to any right of action which might have accrued or might accrue thereafter to the defendant by virtue of these presents, and for the true performance of the covenants on the part of the defendant not to practise, &c., and the defendant bound himself in the sum of 800/., to be recovered as liquidated damages, to be recovered against him upon breach of the covenant. In October, 1 859, the defendant gave the plaintiff written notice that he intended " to determine the said indenture and the covenants and agree- ments therein contained." The defendant informed the plain- tiff that he intended to practise in Coggeshall, and commenced to do so, whereupon the plaintiff filed a bill for an injunction. It was argued for the defendant that an action ought to be brought to determine the legal right, and that the covenant against practising was determined along with the rest of the deed by the notice. Stuart, V.-C., said : " This is a case of a covenant to re- strain a man from following his profession in a particular town, and it is said that great inconvenience may arise to the inhabitants of the town if he be restrained from practising there. But, true as that observation is, the law is too well established on the subject to make it possible for me, sitting here, not to give effect to a covenant of this kind when I find it inserted in an agreement between professional men. Upon the terms of the present covenant, looking at it in connexion with all the clauses in the deed, I have not a doubt. The argument of the defendant is founded upon the proviso in the deed which, it is said, enabled Mr. Hart, the defendant, by giving a notice, to determine and put an end to the operation of all the clauses in the deed. Such is the general language of this particular deed. But, looking at the whole scope and operation of the deed, and the language of the covenant in question, care was taken to provide that the determination of the other covenants in the deed by a notice to be given by the defendant Hart should not interfere with the operation of this covenant. That seems to me so plainly the construction of the language of the deed that I entertain no doubt at all about it ; and my conclusion is that Mr. Hart is bound not to practise within the limits of this town. Therefore I feel bound to grant an injunction to restrain him until further order from practising. With regard to what was asked as to having an action at law directed or sanctioned or countenanced, I cannot listen to it. The terms of the deed seem to me too clear to induce me to ask any judge at common law to assist me with his opinion. If that be so, what justification should I have in indulging one party with the means of assailing the other in any other Court than this ?" RESTRICTIVE COVENANTS. 171 King v. Hansell (1860). (5H. &N. 111.) Restriction on doing business limited to the time the defendant remained in the plaintiff '' 's service. In this case the defendant, on being engaged as commission agent to sell beer and other goods for a firn^of brewers, entered into a bond for 200. to serve the plaintiffs faithfully as such agent, and not to engage in, undertake, transact, or do any business in the same trades or business within ten miles of Towcester for himself or any other person or firm ; to promote the interest of the plaintiffs, to collect and account for moneys, and not to waste or embezzle the goods entrusted to him. The defendant quitted the employment of the plaintiffs, and was employed within the limits by another firm ; and the plaintiffs sued on the bond for 200/. The judgment of the Court of Exchequer was given for the defendant on the ground that all the provisions before and after the stipulation not to engage in business within the particular district applied only to the term of service, and that the object of them was that the defendant should devote his whole time and attention to the plaintiff's business, and therefore the stipulation in question did not extend beyond the period of service. Fox v. Scard (1863). (33 Beav. 327.) A medical practitioner, with whom another has entered into a covenant in a penal sum that he will not practise within defined limits, can, on breach, sue either for the damages, or for an injunction, but not for both. In Fox v. Scard, the plaintiff, a surgeon at Weymouth, agreed to take the defendant, a surgeon, as his assistant at a salary. The defendant agreed not to carry on the business of a surgeon at Weymouth, or within twelve miles thereof, without plaintiff's consent during plaintiff's life, or within ten years after his decease, and to execute a bond for securing the due performance of the agreement. This was not in writing. The defendant at the same time executed a bond to the plaintiff in the penal sum of 1,OQOJ. conditioned not to practise at "Weymouth, &c. as above stated. 172 RESTRICTIVE COVENANTS. The plaintiff discharged the defendant, but the defendant continued to practise on his own account at Weymouth, and the plaintiff instituted this suit, praying an injunction and offering to waive the penalties of the bond. The defendant demurred, arguing that it was a case for action at law on the bond, and not for a suit in equity, and that the parties had, by their contract, agreed that the remedy upon the breach of the bond should be by pecuniary damages only. Romilly, M.E., who did not call on the plaintiff's counsel, said : "I cannot accede to the defendant's view of this case, for I take the principle to be this : Where a person enters into an agreement not to do a particular act, and gives his bond to another to secure it, the latter has a right at law and equity, and can obtain relief in either, but not in both Courts. Jf he proceeds at law on the bond and recovers damages, and afterwards comes into equity, and states that fact in his bill, a demurrer will lie, because he has chosen the jurisdiction and the remedy he will have. Accordingly, the practice has been to adopt the rule very strictly in equity. " It sometimes happens that this legal right is in doubt, and in such cases the Court used formerly to direct an action to try the right. This is now prevented by Mr. Holt's Act, which compels the Court to determine the legal right. But the practice under the old system is a good illustration. When the Court gave liberty to the plaintiff to try his right in an action, if he succeeded and only took nominal damages, he obtained his equitable relief ; but if he sought and obtained substantial damages, the Court, when he came back, dismissed his bill, saying, ' You have already had your remedy at law.' But the plaintiff has a right to say, ' I will not have money, or take compensation in damages, but I will have the strict performance of that which is secured to me by the bond,' which, in this case, is in the nature of a covenant by the defendant that he will not practise at Weymouth. " The bill contains a paragraph waiving the penalties of the bond, but, without that, if, after an injunction had been granted against the defendant, the plaintiff should bring an action for damages, the defendant might come here and have the injunction dissolved. " The defendant has, for valuable consideration, entered into an agreement not to practise at Weymouth, which he is bound to perform, and if the facts alleged be true, the plaintiff is entitled to relief in this Court. The demurrer must, there- fore, be overruled." HESTKICTIVE COVENANTS. 173 Carnes v. Nesbitt (1861). (7 H. & N. 158, 778 ; 30 L. J. (N. S.) Ex. 348; 31 Ib. 273.) Where a surgeon's assistant has covenanted with the surgeon that he will not practise ivithin certain limits, the covenant icitt not be confined to the duration of the service. The protected practitioner cannot sue for both liquidated damages and an injunction. If he first sue for the damages, the injunction will be refused. In Carnes v. Nesbitt, an agreement had been entered into between the plaintiff, a surgeon at Cassop, and the defendant, whereby the defendant was engaged as assistant to the plain- tiff in his practice as a surgeon, &c. for one month, and so on from month to month until either party should give a month's notice to determine the agreement, at a fixed salary ; the plaintiff was to provide a dwelling-house for the defendant, and the defendant was to be allowed for his own use and benefit all fees received from the practice of midwifery, and also from any practice in the immediate neighbourhood of Cassop. And the defendant agreed that he " shall not nor will, either directly or indirectly, by himself or in conjunction with any other person or persons, practise as a surgeon, apothecary, or surgeon-accoucheur " within five miles from Cassop under a penalty or penal sum of 100/. to be recoverable by the plaintiff as liquidated damages, " the said sum of 100. having been specified as the amount to be paid and recover- able for the breach or non-observance by the defendant of the last-mentioned clause." The defendant gave notice to the plaintiff, left his service, and commenced practice within two miles of Cassop. The plaintiff thereupon issued a writ claiming the TOO/, penalty, and gave notice of his intention to apply for an in- junction to restrain the defendant from so practising. After serving his writ, and before declaration, the plaintiff obtained a summons to show cause why an injunction should not issue. The defendant made an affidavit that at the time of entering into the agreement he understood the restriction was only to apply while he continued in the plaintiff's service ; and before the judge in chambers he professed to be willing to pay the penalty, in order that he might practise. Counsel for the plaintiff argued that the fact that the defendant might take private practice near Cassop during the engagement showed that the restriction was to be binding after the service had terminated j also the fact that the RESTRICTIVE COVENANTS. plaintiff had commenced an action for the 100J. penalty was not a good objection to his obtaining an injunction ; and, if it were, he would enter into a rule of Court not to proceed with the action if he got an injunction to restrain the defendant. He elected to take the injunction and was willing to waive his claim for damages. The agreement, he argued, was not at the election of the defendant ; he could not elect to break his engagement by paying for his violation of the contract. The Court refused the injunction. Channell, B., said to the plaintiffs counsel, " Tour present writ puts you out of the Court. Why not amend your writ by claiming unliquidated damages?" Martin, B. : " Why not go on with your action ? " Bramwell, B. : " At present you seek for an injunction, and at the same time seek to recover liquidated damages. I think you are not entitled to get both, and on that account would refuse the rule." "I proceed on the ground that plaintiff has shaped his claim for liquidated damages." The plaintiff afterwards declared on the bond, and claimed 100/., also a writ of injunction to restrain the defendant. The defendant demurred to so much of the declaration as did not relate to the claim for the injunction, and also demurred to so much as did relate thereto. The defendant also pleaded, secondly, that the plaintiff did not provide him a dwelling- house according to the agreement ; and, thirdly, that by the notice given by the defendant the agreement had been wholly determined and put an end to. No counsel appeared for the defendant, but the points in the margin to the demurrer were, that the restraint imposed was only intended to be in force durante servitio, and would otherwise have been unreasonable ; and that the plaintiff's claim to an injunction could not be supported, the agreement being merely for the payment of a certain amount in the event of the defendant's practising within the prescribed limit. On the argument on the demurrer the Court held that in accordance with Sainter v. Ferguson (1 McN. &. G. 286), the plaintiff was not entitled to an injunction ; but gave judgment for the 100J., the liquidated damages, holding that the pro- viding the defendant with a dwelling-house was not a con- dition precedent to the plaintiff's right to sue for a breach, and that it was no answer that the agreement was determined by notice, as the restriction as to the practising applied to the time when the defendant ceased to be assistant. EESTRICTIVE COVENANTS. 175 Howard v. Woodward (1867). (34 L. J. Oh. 47.) Although a bond in a penal sum not to practise contains no cove- nant that the person bound will not so practise, an injunc- tion may be granted. Howard v. Woodward was an action on a bond entered into by the defendant, a solicitor's clerk, which, recited an agree- ment that the defendant should enter into a bond not to practise within fifty miles of Weymouth, the condition being that if the defendant should practise within fifty miles of "Weymouth, and should then pay to the plaintiff 1,000/. as liquidated damages, the bond should be void. The bond contained no covenant by the defendant not to practise within the prescribed distance. The defendant afterwards started in practice at Weymouth, and the plaintiff filed a bill for an injunction to restrain him. Wood, V.-C., in granting the injunction, said the case was entirely a question of agreement between the parties. Was this bond an agreement that the defendant should not practise within the specified distance, or was it an agreement that he might practise there on payment of 1,0001. as liquidated damages ? The bond was in a penal Bum with a condition, but the recited agreement was to give a bond not to practise ; there was nothing to show that the plaintiff intended to sell any part of his business. The Vice- Chancellor therefore granted an injunction, the plaintiff undertaking not to sue the defendant on the bond. Gravely v. Barnard (1874). (18 Eq. 518 j 43 L. J. Ch. 659.) An agreement by a surgeon to continue the existing service of an assistant is sufficient consideration for a restrictive covenant entered into by the assistant. In Gravely v. Barnard, the plaintiff, a surgeon at Newick, had, some time before 1870, engaged the defendant, who was not then qualified to practise, as his assistant. In 1870, the defendant being about to go up for his examination, executed, at the plaintiff's request, a bond, dated the 12th of March, 1870, in the penal sum of 1,OOOL The bond recited that the 176 RESTRICTIVE COVENANTS. plaintiff had taken the defendant into his employ and confi- dence as an assistant in his profession, which employment was to continue as long as the parties should agree ; that the defendant did not then possess, but was in the expectation of obtaining, the requisite qualifications to practise his profession, and had, for the consideration aforesaid, agreed to enter into the bond. The condition of the bond was that if the defen- dant would not at any time thereafter set up, practise, carry on or exercise directly or indirectly either for himself alone, or in partnership or in collusion with any other person except the plaintiff, or in any manner whatsoever, the said several professions, &c., within the parish of Nowick, or within ten miles thereof (the town of Lewes excepted) during so long a time as the plaintiff or any person or persons to whom he should sell or dispose of his said business of a surgeon, &c., or to whom he might assign or make over the same, should carry on, practise, or exercise the same professions or businesses, or any or either of them, then the bond should be void, otherwise the same should remain in full force and virtue. The engagement of the defendant was terminated in June, 1870. The defendant afterwards, in June, 1874, passed his examination, and began to practise within the limits mentioned in the bond. The plaintiff thereupon instituted the suit to restrain him from so doing, waiving by his bill all penalties recoverable at law under the bond. Jessel, M.R., gave judgment granting the injunction. He said : " The sole question in this case is, whether there is a sufficient consideration for the bond. The case of Hitchcock v. (Joker has settled what cpnsideration is sufficient in these cases. It is enough, in the words of Lord Chief Justice Tindal (6 A. & E. 457), if there is 'a legal consideration, and of some value.' Therefore if, in the present case, the plaintiff can show that he gave any valuable consideration, no matter however small, that is enough to warrant the granting of an injunction, the Court not taking upon itself to decide upon the adequacy of the consideration. " Now as to what is valuable consideration in these cases there is some authority. In Davis v. Mason (5 T. R. 118) t the taking of a man into service for so long a time as the master should please, was held to be valuable considera- tion "Is there any difference between an agreement to take into service so long as the master pleases, and an agreement to continue an existing service, so long as the master pleases, that existing service being terminable at the will and pleasure of the master ? I can see none ; and the only question is, can I reasonably infer from the instrument before me an agree- EESTEICTIVE COVENANTS. 177 raent to continue the defendant's employment ? Now upon the defendant's construction the instrument has no meaning ; but it is the duty of the Court to construe an instrument so that if possible it may have a meaning, and if that meaning can be fairly got at, the Court must give effect to it " What do the words 'for the consideration aforesaid 1 mean? The defendant says they mean nothing, that though the instrument speaks of a consideration, none was given. I can- not adopt that view. I think it must mean that there was an agreement by the plaintiff and defendant that the con- nection between them was not to be terminated then and there, and if that is the meaning, the case falls within Davis v. Mason. " But, it may be said, ' Is it right in such a case as this to infer such an agreement ? Must not the agreement be in express terms?' Now on that point the authorities appear to be all one way. In the leading case of Mitchell v. Reynold's (1 P. Wms. 181), the condition of the bond was, that whereas the defendant had assigned to the plaintiff a lease of a messuage and bakehouse for the term of five years if the defendant should not exercise the trade of a baker within that parish, or in case he did he should pay a sum to the plaintiff, then the obligation to be void. No consideration is created here ; the assignment is mentioned in the past tense, and therefore must have been previously executed ; yet the Court inferred a consideration ; they found that the plaintiff took a bakehouse from the defendant, and that the defendant agreed not to carry on his business. So in Davis v. Mason (5 T. R. 118), the consideration was inferred by Lord Kenyon and the judges of the Court of King's Bench. The condition of the bond there simply recited that the plaintiff had taken the defendant for his assistant, and that the defendant had agreed not to exercise the business on his own account ; yet Lord Kenyon in the judgment I have read, says that there was a consideration. That was arrived at by inference. Looking, then, at these two cases, in which remedy was given on an instrument in which there was no express statement of the consideration, but the consideration was inferred, I think I am bound to grant the injunction in this case. "I also think that this is one of the cases in which I am bound to decide the question of law on the motion, and not to leave it to the hearing ; to do otherwise might be to ruin one of the parties." c. 178 RESTRICTIVE COVENANTS. Collins v. Locke (1879). (4 A. C. 674 ; 48 L. J. P. C. 68.) An agreement by merchants to share receipts from certain persons, by whichever of the parties to the agreement the work might be done, held legal ; but a provision that, in case named persons should not employ the merchant to whom they were allotted by the agreement, none of the parties should do the work, held unreasonable. In Collins v. Locke, a case before the Privy Council in 1879, four stevedores had entered into an agreement of which the object was to parcel out the stevedoring business of the port of Melbourne among themselves. In the first place, they divided certain shipping firms in the port into four sets, one set being allotted to each party to the agreement, and every ship consigned to one of those firms was to be worked by the party to whom the set comprising that firm was allotted, if he could get her. If the firm, however, would not give the stevedoring to the party entitled under the agreement, but required another of the parties to the agreement to do the work, then the party so required should give an equivalent to the person who should so lose the stevedoring. There was another covenant, the effect of which was that, in the case of ships passing out of the hands of the named firms to which they were consigned and being loaded by other merchants, if the merchants loading such ships should not choose to employ the party who, under the agreement, was entitled to do the stevedoring, all the parties to the agreement should be deprived of the work. Their lordships held that the objects which the agreement had in view were to parcel out the stevedoring business of the port among the parties to it, and so to prevent competi- tion, at least amongst themselves, and also it might be to keep up the price to be paid for the work. Their lordships were not prepared to say that an agreement having these objects was invalid if carried into effect by proper means, that was to say, by provisions reasonably necessary for the purpose, though the effect of them might be to create a partial restraint upon the power of the parties to exercise their trade. It was held that the provision first above mentioned (that if one of the parties to the agreement should be required to do the work allotted to another under the agreement, the party so required should give an equivalent to the party who lost the stevedoring) was not unreasonable, since it provided RESTRICTIVE COVENANTS. 179 in a fair and reasonable way for each party obtaining the benefit of the stevedoring of the ships to which by the con- tract he was entitled. Each party might in turn derive benefit from this clause, and one of the four parties would always get the profit of the ship stevedored, though the work might be done by another of them. As regarded the merchant also, he could have his ship stevedored by the party whom he might require to do it, at least, there was no prohibition against his having it so done. The other provision, however (that if merchants loading certain ships should not choose to employ the parties entitled to the work under the agreement, all the parties to the agree- ment should be deprived of the work), their lordships held was productive of wholly different results. Such ships were "so to speak, tabooed to them all." The covenant in such cases restrained three of the four parties to the agreement from exercising their trade, without giving any profit or benefit to compensate for the restriction to either of the four, whilst the combination they had thus entered into was obviously detrimental to the public by depriving the merchants of the power of employing any of those parties, who were probably the chief stevedores of the port, to load their ships, unless in each case they employed the one of the four to whom the ship, as between themselves, had been allotted, however great and well-founded their objections might be to employ him. Such a restriction could not be justified upon any of the grounds on which partial restraints of trade have been supported. It was entirely beyond anything the legitimate interests of the parties required, and was utterly unprofitable and unnecessary, at least, for any purpose that could be avowed. Davies v. Makuna (1884). (29 C. D. 596 ; 54 L. J. Ch. 1148.) An agreement to assist an unqualified man to practise as an apothecary is illegal, and a restraint on practice contained in such an agreement cannot be enforced. On the 1st of November, 1883, an agreement was entered into between the plaintiff, who was described as a " medical practitioner," and the defendant, who was described as a "medical assistant," by which the defen- dant was engaged to serve the plaintiff as assistant in his N2 ISO RESTRICTIVE COVENANTS. profession as medical practitioner and accoucheur at Ystrad llhondda for one year, and so on from time to time, but either of them should bo entitled to put an end to the said term of service during the first or in any subsequent year by giving a month's notice in writing. And the defendant agreed that he would not at any time during the continuance, nor during the next five years after the determination of the con- tract of service, except with the plaintiffs written consent, exercise, or carry on the profession of doctor of medicine, surgeon, apothecary, or accoucheur, or any of them, at Ystrad Rhondda, or within ten miles in any direction, either on his own account or in partnership with or as assistant to any other person or persons. The plaintiff, who was an M.D. of an American University, was not qualified to be registered under the Medical Act of 1858. The defendant was a duly qualified and registered medical practitioner. In August, 1884, the defendant's engagement was terminated by notice from the plaintiff, and in September, 1884, the defendant commenced practising as a doctor of medicine on his own account at Ystrad Khondda ; and the plaintiff issued a writ claiming an injunction to restrain him from exercising or carrying on the profession of doctor of medicine, surgeon, apothecary, or accoucheur at Ystrad Ehondda or within ten miles thereof. The plaintiff moved for an interim injunction before Pear- son, J., on the 20th of November, 1884. The defendant deposed that on the date of signing the agreement, when he visited the plaintiff at his residence, there was on the mantel- piece of the sitting-room a brass plate bearing the plaintiff's name, with the addition of the words "physician and surgeon." This was denied by the plaintiff. It was argued for the defendant that the covenant was too wide, and therefore bad, ajid that the action was really brought for the specific performance of the agreement, which was con- trary to the policy of the law and was tainted with illegality, as the plaintiff was prohibited from practising at all by the Act 3 Hen. 8, c. 11, and from practising as an apothecary by the Act 55 Geo. 3, c. 194, s. 14. He had besides contravened the provisions of the Medical Act of 1858 (s. 40) by assuming a description to which he was not entitled. Pearson, J., said : " The objection to the action which has been taken, with reference to the Medical Act of 1858, has been put in two ways. In the first place it is said that the plaintiff is not, and, as matters now stand, cannot be, a pro- perly qualified medical practitioner under the Act ; and, secondly, that, that being so, the defendant's covenant is too large, is wider than is required for the purpose for which it was entered into, and that it is therefore bad. RESTKICTIVE COVENANTS. " The first question which. I have to determine is, what does the Act order, and how far does it leave persons at liberty, notwithstanding the provisions contained in it." (His Lordship read sect. 14 of the Apothecaries Act, 1815.) "There is, therefore, in that Act an express prohibi- tion against any person acting as an apothecary except one who is qualified according to the Act. Bt when I come to the Act of 1 858, 1 find it begins with this preamble : ' Whereas it is expedient that persons requiring medical aid should be enabled to distinguish qualified from unqualified practitioners.' Now, to my mind, that preamble shows what the whole pur- port of the Act was and the extent to which its provisions were intended to go. It is not an Act to prevent unqualified practitioners from practising, but it is an Act to enable the public to distinguish between qualified and unqualified prac- titioners. Then it takes away from an unqualified practitioner the power of recovering any fees ; but, if it had been intended to prevent any unqualified person from practising, that section would have been wholly unnecessary ; the Act would simply have prohibited any such person from practising. No doubt it is difficult to understand the exact limit of sect. 40 [as to wrongful assumption of medical titles], and I do not mean to say that I am absolutely certain what is the proper construc- tion of it. But looking at the preamble of the Act and at sect. 32 [that only registered persons shall recover fees], I think the meaning is, that in order to incur the penalty a person must wilfully and falsely take or use one of the names or titles therein mentioned in such a manner as is calculated to deceive the public. I do not think that the use of one of those titles by an unqualified practitioner, either in a private agreement with another medical man, or on a brass plate not exposed to the public view, would be an infringement of this section. I cannot say why the provisions of the Act were limited in this way ; possibly it was not thought necessary to prevent all unqualified persons from practising ; and it may well be that the legislature, knowing the habits and customs of the English people, were willing to leave a wide door open, particularly to those, such as rectors' wives and other ladies bountiful, who, with little experience and large benevolence, delight to practise the art of medicine without many injurious results. But, however that may be, I do not see that it has been brought home to the plaintiff that he has done anything improper, although he is not, and cannot be, as matters stand, a qualified practitioner under this Act. " This, I think, decides the whole question between the parties, for, if that be so, there was no reason why he should not enter into this agreement with the defendant, and there is no reason why the defendant, having entered into the agree. 182 KEbTRIGTlVE COVENANTS. moil t, should not keep it. I must therefore grant the injunc- tion as asked." The defendant appealed. On the hearing of the appeal further evidence was adduced on behalf of the defendant, from which it appeared, that in the course of the year 1884 the plaintiff had signed certificates of the cause of death of various persons, to be delivered to the registrar under the Births and Deaths Registration Act, 1874. By each of these the plaintiff certified that he attended the deceased during his last illness, and stated the cause of death. The certificates specified were twelve in number, and the causes of death mentioned were meningitis and convul- sions, phthisis, cardiac disease and apoplexy, diarrhoea, con- vulsions, measles and convulsions, apoplexy, bronchitis, infirmity and anasarca, bronchitis and convulsions, pneumonia and convulsions. The plaintiff did not in these certificates represent himself to be a qualified practitioner. Evidence was also given, that on the 30th of March, 1885, the plaintiff was convicted and fined at the petty sessions for assuming the title of doctor of medicine. The plaintiff, by affidavit, stated that the circumstances under which he was convicted were, that he was connected with certain collieries in the neighbourhood of Rhondda, and had frequently to give to friendly societies certificates of the death or illness of members, and that in one of such certificates he accidentally signed " John Davies, M.D.," omitting the letters U.S., which he was in the habit of adding, and that on this certificate he was convicted. The plaintiff also deposed that his assistants, who were qualified apothecaries, invariably attended to that portion of his practice which involved acting in that capacity. That, not being himself registered as an apothecary, he did not compound or dispense medicines, but required his assistants, who were qualified as aforesaid, to perform that duty. The appeal was heard on the 22nd of April, 1885, and the injunction was dissolved. The judgments delivered in the Court of Appeal were as follows : Cotton, L.J. : " This is an appeal by the defendant, from an order of Mr. Justice Pearson, granting an injunction to com- pel him to abide by the terms of an agreement entered into between him and the plaintiff. The defendant has broken the agreement, and we cannot look with any favour on his conduct, but we must decide the case according to the prin- ciples of the Court. The plaintiff carries on business, as a medical practitioner, at Ehondda, in Wales, and advertised for an assistant. The defendant is a duly qualified medical practitioner. On the 1st of November, 1883, a written agree- RESTRICTIVE COVENANTS. 183 ment was entered into by plaintiff and defendant that the defendant should serve the plaintiff as his assistant in his profession as medical practitioner and accoucheur at Ehondda, at a yearly salary, the engagement being determinable by either party at a month's notice ; and the defendant stipulated that he would not, during the continuance of the engagement or within five years after its determination, except with the written consent of the plaintiff, exercise or carry on the profession of doctor of medicine, surgeon, apothecary, or accoucheur, at Ehondda, or within ten miles of it. In August, 1884, the engagement was determined, and in the following month the defendant commenced practising as a doctor of medicine at Ehondda. The ground on which the defendant resists the injunction is that the agreement was to assist the plaintiff in the conduct of the business which he was at that time carrying on, that the business was one which he could not legally carry on, and that the agreement therefore is void for illegality. The plaintiff admits that he had no qualifica- tion to act as surgeon, apothecary, or physician, but says that he carries on those branches of his business by means of duly qualified assistants, and not personally. If that had been the real state of the case, I am at present of opinion, though it is not necessary to decide the point, that as the defendant knew the circumstances when the agreement was entered into, it could have been enforced against him, for that the plaintiff would be doing nothing illegal. But is that the state of the case ? To my mind it is not shown to be so, I do not go into the question whether the Act 3 Hen. 8, c. 11, is still in force as regards the penalties imposed on persons practising without being duly qualified. But there is an Act, 55 Greo. 3, c. 194, s. 14, which prohibits the acting as an apothecary without being duly qualified. The Act does not define the nature of an apothecary's employment, but dispensing, mixing medicine, giving medical advice, and attending the sick as medical adviser, must be considered acting as an apothecary. It is alleged by the defendant that in the present case the plaintiff has done these things in person. It is deposed, too, that he has in his room a brass plate, on which he is described as ' physician and surgeon,' and though this can only be seen by the patients who come to him, it tends to show that he is not the mere centre of a staff of qualified assistants, but is himself carrying on the business of the medical profession in various forms. The agreement, moreover, describes him as a ' medi- cal practitioner.' Then an affidavit, which was not before Mr. Justice Pearson, verifies a set of certificates of death stating the cause of death, which implies that the plaintiff had attended them and prescribed the requisite medicines, thus acting as an apothecary. The result of the evidence 184 RESTRICTIVE COVENANTS. at present appears to me to be that the plaintiff is exercising a profession which he is not at liberty to carry on in England. The case appears not to have been fully before Mr. Justice Pearson, for he proceeds on the Medical Act of 1858 alone, and if there had been no other Act in the case, I should have been disposed to argue with him ; but, as the evidence at present stands, I think that the plaintiff must be taken to have been carrying on a business which the Act 55 Qeo. 3, c. 194, prohibited him from carrying on, that the agreement therefore was illegal, and that he cannot enforce it." Lindley, L.J. : "I have come to the same conclusion. If it were necessary to determine how far the Act 3 Hen. 8, c. 11, is still in force, I should wish to take time to consider, but when we look at the agreement and the facts, I think it is not necessary to determine that question. The agreement describes the plaintiff as a medical practitioner, and the evidence shows what kind of business he carries on. The affidavit, which was not before Mr. Justice Pearson, shows that he carries on the work of a surgeon, physician, and apothecary. The object of the agreement was to get the defendant's assistance in carrying on this business, which the plaintiff was prohibited by the Act 55 Geo. 3, c. 194, from carrying on. It was a scheme to allow a medical man to practise without being duly qualified." Fry, L.J. : "I am of the same opinion. By the agreement the defendant agrees to serve the plaintiff as his assistant in his profession carried on at Rhondda. What was the profes- sion carried on by the plaintiff ? It is suggested that it was a medical profession carried on entirely by means of duly qualified assistants. If that had been so, I am far from saying that the agreement might not be valid. But, upon the evidence, I come without hesitation to the conclusion that the plaintiff acted as an ordinary medical practitioner does, and if so, the agreement was that the defendant should assist the plaintiff in a business which the plaintiff could not law- fully carry on. If so, we cannot interfere. Possibly the covenant may be construed distributively it is not my present impression that it can but in the existing state of circum- stances, bearing in mind that this is an interlocutory pro- ceeding, I think that we should be doing wrong if we supported the injunction." RESTRICTIVE COVENANTS. 185 Jacoby v. Whitmore (1883). (32 W. E. 18.) A covenant in restraint of business is part of the goodwill of the business, and passes by an assignment of the goodwill. The covenant not affected by the removal of the business by the person protected to another shop close at hand. By an agreement in writing, in 1878, one M. Cheek agreed to employ the defendant as his shopman at his shop, 1, Cam- bridge Eoad, on certain terms, and the defendant undertook that he should not, either while in the employment of M. Cheek, or at any time thereafter, within one mile from the said shop, be engaged or connected with the business of an oil colourman, &c., and upon any breach by him of that undertaking and agreement, that he should and would forfeit and pay to M. Cheek the sum of 2501. as liquidated damages. M. Cheek afterwards removed his business to another house 150 yards away, and the defendant continued to serve in the new shop. By an indenture dated 4th April, 1883, Cheek assigned to the plaintiff "all the beneficial interest and goodwill of the said M. Cheek in the said trade or business of an oil colour- man, &c.," and upon the sale the defendant set up a shop as an oil colourman, &c., within a mile of 1, Cambridge Eoad. The plaintiff moved for an injunction, which was refused, and the plaintiff appealed. The Court of Appeal (Brett, M.E., Cotton and Bowen, L.JJ.) granted the injunction. They held that the covenant was not unreasonable, and endured for the life of the defendant, though the original covenantee should cease to carry on business altogether ; and that the covenant was not affected by the removal of the business to another shop near at hand. Also, that such a covenant added to the value of the goodwill, and, therefore, was part of the goodwill, and certainly of the beneficial interest, and was assignable with it, and did in fact pass by the sale of the goodwill and beneficial interest to the plaintiff, so as to give him a right of action. 186 RESTRICTIVE COVENANTS. Baines v. Geary (1887). (35 C. D. 154 ; 56 L. J. Ch. 935.) An undertakiny by a servant not to serve or interfere with any customer served by or belonging to the master, his successors or assigns, can be enforced as to persons who were customers during the employment ; and the part of the undertaking as to future customers is severable from the rest. Such a covenant is assignable. The defendant, by agreement in writing, agreed to serve the plaintiff Baines, a dairyman, his successors and assigns, and, in consideration of the wages to be paid to him, he under- took that he would not after the termination of such service, serve or cause to be served with milk or any other dairy produce for his own benefit or that of any other person or persons, or directly or indirectly interfere with, any of the customers served or belonging at any time to the plaintiff Baines, his successors or assigns. The plaintiff Baines sold his business to the other plaintiff Edelsten, and on the eve of the completion of the purchase, the defendant left the service of Baines, set up in business as a dairy proprietor, and solicited the custom of persons who had dealt with Baines. The plaintiffs moved for an injunction. For the defendant it was contended that the undertaking sued upon was too wide. It was unreasonable that the servant should be debarred from soliciting or serving persons who did not become customers of the business till after he left the employment. For the plaintiffs it was urged that the reasonable construe tion of the undertaking was that the servant was not to interfere with persons who were customers during the time for which he was employed. The words "at any time" meant " at any time during the continuance of the service." North, J., said in his judgment : "It has been argued on behalf of the defendant, that the covenant not to serve or interfere with the customers of the plaintiff Baines or his successors, is too extensive, and Ronnie v. Irvine (7 Man. & G. 969 ; see this case, ante, p. 156), was relied on It is argued that unless the covenant is limited to persons who were customers of the plaintiff Baines at the time when it was entered into, or, at any rate, who became such during the period of the defendant's employment, it would be too extensive. The terms of the covenant in the present case are, no doubt, larger than those of the covenant in Rannie v. Irvine, and it is said that they are too extensive, and that, therefore, RESTKICTIVE COVENANTS. 187 the covenant must fail altogether. It is quite clear that a covenant in restraint of trade is good, if it does not go further than is necessary to give reasonable protection to the person who imposes it. There is nothing illegal in such a covenant, but it is considered unreasonable if it imposes a larger restraint than is necessary for the protection of the covenantor. The Court, have, however, seen their way to treat such a covenant as divisible, and to enforce it to the extent to which it is reasonable, while declining to enforce such part of it as is unreasonable. There are many reported cases in which covenants in restraint of trade have been held to be divisible as regards space. I will refer only to one, Price v. Green (16 M. & "W. 346 ; see this case ante, p. 158) No case, however, was cited to me in which a covenant of this kind had been held to be divisible in regard to time, and I post- poned my judgment that I might see if any such case had been reported, and I have found the case of Nicholls v. Stretton (7 Beav. 42; 10 Q. B. 346; 11 Jur. 1008). . . . That decision is precisely in point, and it shows that, although the terms of the covenant were large enough to include all the persons who might be clients of the plaintiff at any time, still it was separable, and was at any rate good as regarded those persons who had been clients of the plaintiff during the time in which the defendant was serving his articles with him, and that the court considered that, as regards persons who became clients of the plaintiff after the defendant had quitted his employment, the covenant would have been bad. That exactly applies to the present case. Whatever may be the true construction of the agreement whether it extends or not to persons who might become customers of the plaintiff Baines and his successors after the defendant had quitted his employ- ment it would at any rate be good as regards persons who became customers before he left. I must, therefore, grant an injunction, but limited to restraining the defendant from serving or interfering with any persons who were customers of the plaintiff Baines at any time during the defendant's employment by him. " Another point taken was that the benefit of the defendant's covenant was not assignable. It has, however, been held in many cases that the obligation of such a covenant is not limited to the time during which the original covenantee continues to carry on his business. In Bemvell v. Inns (24 Beav. 307, ante, p. 167), the action was brought by the suc- cessor iln business of the original covenantor, and the point argued was not that a successor could not sue on the covenant, but that the plaintiff, being only an assignee of part of the business of the original covenantor, was not an assignee of the business within the meaning of the covenant, and was not 188 RESTRICTIVE COVENANTS. entitled to sue upon it. It was held by Lord Romilly, M.R., that the plaintiff was an assignee, and that he was entitled to sue." Palmer v. Mallet (1887). (36 C. D. 411 ; 57 L. J. Ch. 226.) Where one covenants with two partners that he will not practise within certain limits, either of the tiro, after dissolution of the partnership, can sue on the covenant. Such a cove- nant is broken where the person restrained only acts as assistant. The defendant had been employed as an assistant by Messrs. Hall & Palmer, who were in partnership at N. for their joint lives, with a power to determine the partnership by notice, as surgeons, accoucheurs, and apothecaries, and he had entered into a bond by which he bound himself to them for payment to them, their executors, administrators, or assigns, of 1,000/. The bond recited the engagement of the defendant, and that one of the terms upon which he was engaged was, that he should not at any time set up or carry on the business or profession of a surgeon, &c. in the town of N., or within ten miles thereof, and that he should enter into that bond ; and the condition of the bond was that if the defendant should not at any time thereafter, either alone or in partnership with or as assistant of any other person, set up or carry on the business or profession of a surgeon, &c., or any branch thereof, or any professional business connected therewith, within the said town of N., or within ten miles thereof, without the consent of the said Hall & Palmer, their executors, administrators, or assigns ; and if the defendant should not, by or on behalf of himself or any other person, at any time thereafter, solicit the custom or support of any of the persons who then were or might thereafter from time to time be the customers or patients of Messrs. Hall & Palmer, their executors, administrators, or assigns, or either of them : but so that nothing therein contained should prejudice or affect the right of Messrs. Hall & Palmer, their executors, administrators, or assigns, to restrain by injunction any breach of the recited agreement on the part of the defendant, and to recover damages against him for any antecedent breach thereof in lieu of taking proceedings against him under the bond, then the bond should be void. RESTRICTIVE COVENANTS. 189 Messrs. Hall & Palmer dissolved partnership ; each of them continued to practise in N., and Hall retained defendant as his assistant. Mr. Palmer immediately commenced this action for an injunction. It was argued for the defendant that the bond entered into with Messrs. Hall & Palmer being joint only, Palmer alone could not maintain an action in respect of it. That the bond was intended for the protection of the joint business only, and that joint business having come to an end, the bond could no longer be put in force. That the agreement recited near the beginning of the bond was only "not to set up or carry on the business or profession of a surgeon," &c., and that the defendant had not broken this by becoming assistant to one who carried on such a business. And even if the agreement should be construed as extended by the defeasance, where the term " assistant of any other person " is used, " other " must mean " other than the parties to the bond." The Court of Appeal (Cotton, Bowen, and Fry, L.J J.) held, affirming the decision of Chitty, J., that an injunction ought to be granted. Cotton, L.J., said, in the course of his judgment : " We must look at the position of the parties with whom the agree- ment was entered into. They were carrying on business as partners. Although they were partners for life, that partner- ship might be put an end to, and in fact it has been put an end to, so that they had a joint interest as partners in the business which they carried on as surgeons, &c., and they had several interests in it in the event of a dissolution. That being so, the proper construction of this imperfectly recited agreement is that it is an agreeement entered into by the defendant with the partners jointly and severally. "But there is another objection. It is said that assuming Mr. Palmer to be entitled to sue, yet the defendant has not committed any breach of his contract that he should not at any time set up or carry on the business or profession of a surgeon, and it is said that the defendant is not doing so where he is simply acting as an assistant at a salary for another man who is carrying on the business for his own benefit. I do not think that the question whether the defen- dant is carrying on the business or profession can depend on whether he is paid by salary or by a certain share of the profits. . . . " When, as here, the words ' carry on the business or pro- fession of a surgeon ' are merely used to denote what is done by a man acting as a surgeon, a man in my opinion acts as surgeon and carries on the business of a surgeon none the less because he is not the principal or engaged in the business as a partner, but is merely carrying it on as an assistant to 190 RESTRICTIVE COVENANTS. somebody else. In my opinion, therefore, on both points the appeal fails." Bowen, L.J., held that the true construction of the agree- ment was that either Mr. Palmer or Mr. Hall might enforce it for his own benefit during his lifetime, in the event of the partnership having come to an end. Rogers v. Drury (1887). (57 L. J. Ch. 504.) A medical man restrained from practice tcithin certain limits may not attend persons u-ithin those limits, though he has not solicited them, and they have voluntarily sent for him. In the case of Rogers v. Drury the parties were medical practitioners in Birmingham; and plaintiff moved for an interim injunction to restrain infringements by defendant of an agreement under which the plaintiff had purchased the defendant's practice within a certain radius, and by which it was expressly provided that the defendant would not practise or reside within such radius, "or in any other way whatsoever, directly or indirectly, enter into competition with the plaintiff in the practice or profession of a physician, surgeon, or accoucheur, within such radius." By the terms of the agreement the defendant was to be at liberty to commence and carry on a new practice on his own account outside the radius, and was also to be entitled to retain excepted patients mentioned by name. The plaintiff complained that the defendant had attended patients within the radius other than those excepted by the agreement. The defendant stated that he had never solicited any such patients, but that they had voluntarily sent for him ; that in some instances he had told them that he had disposed of his practice, and they had called in another medical man than the plaintiff, and in others they had told him that, if he did not attend them, they would nevertheless decline to call in the plaintiff, and he altogether denied solicitation or competition on his part. Chitty, J., in granting the injunction asked for, said: "In this case the facts are, speaking generally, admitted. More- over, there is no question as to the validity of the covenant, and all I have to ascertain is its meaning. The defendant RESTRICTIVE COVENANTS. says there has been no competition, because there cannot be competition without solicitation, and he also says that the competition contemplated by the agreement must be active competition. Neither of these propositions can be maintained. It is important to ascertain what was the object of the cove- nant. Its object was to protect the practice which had been bought and paid for. The agreement contains divers clauses to secure this object, and amongst them is this covenant. I decline to draw a distinction between active and passive com- petition. The covenant is, not to enter into any competition in any way whatever. What I have to do is to give each term in the covenant its full and appropriate meaning, and doing this, and bearing in mind the object of this covenant, I think that it is clearly infringed, for it appears to me that the vendor, by coming into the area of the practice, is acting most injuriously towards the plaintiff and, to my mind, diminishing the plaintiff's fair chance of obtaining that which he has pur- chased. The defendant has said that the patients would not have called in the plaintiff under any circumstances. To this it can be answered that there might be circumstances under which it would be most important to call in the doctor on the spot .... and the skill of the plaintiff is not questioned. The plaintiff is entitled to an order as asked, with costs." The injunction was subsequently made perpetual. National Provincial Bank of England v. Marshall (1888). (40 C. D. 112; 58 L. J. Ch. 229.) A person subject to a restraint on business has not the option of paying the liquidated damages named, and breaking the agreement. In the case of The National Provincial Bank of England v. Marshall, the defendant, on entering the service of the N. P. Bank at Cardiff as a clerk, had executed a bond for payment to the bank of 1,000/. The condition of the bond was that it should be void if the obligor should, while employed by the bank, perform the duties therein specified, " and also if the obligor, his executors or administrators, shall pay to the bank the sum of 1,000. as liquidated damages in case the obligor at any time after he shall have retired from any employment in any capacity under the bank, or shall have been dismissed therefrom, shall accept any employment, or allow himself to 192 RESTRICTIVE COVENANTS. be or shall be employed in any capacity whatsoever, in or for any bank not connected with the said bank, within twenty miles of the said bank or any branch thereof at which he . shall be employed at the time of such dismissal or retirement or at which he shall have been employed at any time within six months prior to such dismissal or retirement." The defendant voluntarily left the bank in September, 1888, and immediately entered into the service of a rival bank in Cardiff. Butt, J., in the vacation granted an interim injunction restraining the defendant from accepting any engagement in any bank unconnected with the plaintiff's bank within twenty miles of their principal bank. The defendant appealed, and the hearing was by consent treated as the hearing of the action. It was argued, on behalf of the defendant, that the words of the bond must be taken strictly, and their natural meaning was that he must either abstain from accepting employment within twenty miles, or pay 1,OOOJ. to the bank. The defen- dant was ready to pay the 1,000/., and contended that such payment freed him from all obligation. The words " as liquidated damages " merely meant " in the nature of liqui- dated damages " ; they did not imply the existence of any agreement. The plaintiffs argued that the payment of 1,0001. would not compensate them for the injury which the defendant might cause them by taking employment in a rival bank. The real question was, what was the intention of the parties ? Recitals of an agreement were not necessary. The Oourt of Appeal (Cotton, Lindley, and Bowen, L.JJ.) held that the injunction was rightly granted and must be continued. Cotton, L J., in the course of his judgment, said : "It was contended by the appellant that he had a right to enter into the service or employment of any other bank, provided he paid the penalty of 1,000/. That is not the exact language of the clause, and it may be observed that it is not very reasonable to suppose that it was the meaning of the parties ; it was not likely that the bank would enter into such an agreement with their servants. The Court in construing such a bond must look at the condition of the bond throughout. It is true that in most cases there has been a recital in the bond, or some other evidence from which the Court has found that there was an agreement between the parties, and in such cases it has been held that if the obligee brings an action he can recover damages, but if he comes into a Court of Equity the agreement will be enforced, if no action for damages has been brought, and an injunction will be granted. Here there RESTRICTIVE COVENANTS. 193 is a sum of 1,000/. named as liquidated damages, and the plaintiffs say that the meaning of the clause is that if the bank brought an action, they were not to be obliged to prove what damage they had suffered, but would be entitled without proof of damage to recover 1,0001. as liquidated damages " It seems to me that it means that if the bank brought an action they might recover 1,000. damages without actual proof of damage. How can there be damages if there is no broken agreement in respect of which they are claimed ? They must be in respect of some violation of an agreement, and this clause, though awkwardly expressed, seems to me to show that the bank looked at the condition as most material, and as prohibiting the defendant from entering the employment of any other bank. If there were no such clause he might have entered into any similar employment, but the clause shows that there was an implied agreement that he should not accept any such employment. I am, therefore, of opinion that there was an agreement which can be enforced by this Court." Lindley, L.J., said : " There is no recital, nor any language expressly to the effect that the clerk shall enter into no other employment on leaving the service of the plaintiffs ; but it is impossible to read the words of the condition without coming to the conclusion that there was really an agreement between the parties to that effect. ... In my opinion, the true meaning of the condition is that which is contended for by the plaintiffs, namely, that if the plaintiffs should bring an action they were not to be embarrassed by having to prove actual damage, but should be entitled to recover 1,000?. damages. In the case of an ordinary bond it would be no answer to such an action that the defendant was ready to pay the penalty. That is settled. And it is not consistent with the bond or with the intention of the parties that the obligor should be free if he paid the penalty of 1,0007. He could not acquire the right to break the agreement by paying the penalty. The plaintiffs have an alternative remedy to enforce the agreement if they do not bring an action. Therefore, I think the injunction was rightly granted, and must be continued." 0. 194 CHAPTER VIII. Introduction to patients usually pro- vided for on the transfer of a practice. Importance of introduction. INTRODUCTION TO PATIENTS. WHEN a medical practitioner sells his practice it is usual to stipulate that the vendor shall give the purchaser an " introduction " to the patients of the vendor for a stipu- lated number of weeks or months ; and where on a " death vacancy " a practice is being sold by the executors or the widow of a deceased practitioner some introduction is usually provided for. An introduction is of great importance to a professional man taking up an established practice ; and cases turning on introductions have at times come before the Courts, both as to how far an agreement to recommend another to a situation of trust is compatible with morality, and how far the Courts are able to enforce specific performance of such an agreement. As to the first point, the Court of King's Bench held such an agreement for recommendation, in the somewhat analogous case of a practising attorney, to be unobjection- able in the case of Bwm v. Guy (1803), 4 East, 190. In that case a contract which had been entered into by C., a practising attorney, that he would relinquish his practice within certain limits, and would endeavour by every means in his power to influence and induce as many of his clients as he could (whose business he thereby agreed to give up and relinquish) to become the clients of two other attorneys ; and would introduce or endeavour to introduce them to the notice and favour of all such his clients, and would not himself practise within certain limits, was held valid. It was argued that the agreement to recommend the INTRODUCTION TO PATIENTS. 105 clients was contrary to morality, and that the law would avoid a pecuniary contract for recommending another to a situation of trust, especially one wherein the public had a deep concern. That it was immoral and illegal in its very nature, because it could only be performed by a fraud upon the person on whom such recommendation was to operate. That the representation to be made in such a case must be a false one, or at least there was a temptation to represent falsely for the sake of the reward. The Court of King's Bench, however, held the contract valid. Death is a contingency which all persons must be sup- No abatement posed to have in their contemplation ; and if there is no stipulation on the subject, and the introduction is cut vendor during short by the unexpected death of the vendor, no relief can except where be claimed by the purchaser. In Mackenna v. Parkes (infra) , ^ conceal^ however, where the vendor, being in a very precarious state ment or mis- of health, concealed from the purchaser, his incoming partner, the nature of his ailment, and there was to a great extent a failure of the stipulated introduction, the pur- chaser was held entitled, on taking an account, to be remitted a considerable portion of the premium paid. Mackenna v. Parkes (15 W. E. 217 ; 36 L. J. Ch. 366). The plaintiff and P., by deed dated 28th February, 1863, entered into an agreement for a partnership as surgeons for 21 years from the 25th of March, 1863 ; P. to reside within three miles of the business premises and to take an active part in the business for three years, and to introduce and recommend the plaintiff to his patients, the plaintiff agreeing to allow P. to be absent for a period not exceeding three months at one time in any year. The plaintiff was to pay 1,250/. ; 600/. to be paid down and the remainder by two bills of exchange, one at twelve months and the other at two years after date. It appeared that the business produced from 1,000/. to 1,400/. a year, o2 196 INTRODUCTION TO PATIENTS. and that the patients were between 300 and 400 in number. A medical agent arranged the partnership and put the consideration at 1,250/. P. had attended several clubs and benefit societies, and a circular was sent to them on the partnership being entered into ; but the plaintiff was not personally introduced to more than half these clubs ; and P. gave the plaintiff an introduction to about a dozen only of his private patients. A few weeks after the execution of the deed P. was obliged, from ill-health, to go to the sea, and was absent for several months, and he died in December, 1863. His death had the most disastrous effect upon the business. The plaintiff gave the defendant, who was the executrix of P., notice that he intended to exercise an option reserved in the deed of pur- chasing the deceased partner's share. The plaintiff after- wards refused to pay the amount due on the bills, and the defendant brought an action upon them. This bill was then filed by the plaintiff to restrain the defendant's action, and for an account and a return of the whole or some portion of the premium paid. It was argued for the defendant that the plaintiff had not complained so early as he might have done, and that by exercising the option to purchase the deceased partner's share he had affirmed the contract. Kindersley, V.-C., said that this was a simple case of a medical practitioner, owing to bad health, wishing for someone to assist him, and taking a partner on certain terms. One important term was introduction to patients, who would naturally confide in one recommended to them by their own medical attendant ; but it was clear that this was only done to an extremely limited extent, and that for several months P. was absent from ill-health, and no doubt the introduction to patients did not take place, as provided for, from this cause. The medical evidence established that P. was suffering from " Bright's disease," and that the disease was such that his condition was ex- tremely precarious, and yet he might live for years. He INTRODUCTION TO PATIENTS. 197 had gout also, and the combination led to apoplexy, of which he died. This important fact, namely, the existence of this disease, was not known to the agent, who deposed that, had he known it, it would have formed a material element in fixing the amount of consideration to be paid by the plaintiff. Primd facie, if the plaintiff had not got the benefit he was not liable to the obligation of paying the full amount. The question, then, was whether the plaintiff knew of P.'s state of health when the agreement was entered into. There was a conflict of evidence ; . . . but, taking all the matters together, the conclusion must be that the plaintiff was not aware of the ailment under which P. laboured at the time he executed the agreement, nor till some time after that, and that when he knew it, he did not assert his rights, because, probably as a medical man, he considered it possible that P. might live for years and might give him the benefit of an introduction. The plaintiff did not get the introduction he bargained for, and the business naturally fell off, and the plaintiff had not received the benefit which was in the contemplation of both parties when they entered into the agreement. Under these circumstances, according to the cases and the law of this Court, a party might come, where accounts were to be taken between him and another person, and ask for relief in respect of the loss which he had sustained through the non-performance of the agreement between them. In this case it was not disputed that there must be an account, and in taking that account the plaintiff must be debited with the 650/., the unpaid portion of his premium, but credited with so much as ought to be repaid to him. This must be preceded by a declaration that he was entitled to be remitted a reasonable portion of the 1,250/., having regard to the early death of P., and the non-introduction of the plaintiff to his patients. The amount, when ascertained, to be paid to the plaintiff. The question whether an agreement to sell and transfer Court cannot a medical practice is a contract of which the Court can 198 INTRODUCTION TO PATIENTS. of an agree- decree specific performance must, it would appear, be personal & answered in the negative. The Court has no means of introduction, putting the transferee in possession of that which he has agreed to purchase, whether there be stipulations for an introduction to patients or not. The case of Buzon v. Farlow (infra), decided in 1816, though not actually a case on a transfer of a medical practice, is a most instructive case as to the difficulty of effecting a transfer of a pro- fessional business where an introduction is not stipulated for. In Bozon v. Farlow (1 Mer. 459), a bill was filed for specific performance of an agreement for selling the busi- ness of an attorney. The facts appear sufficiently from the judgment of Grant, M.E,., who said : " This is a bill for the specific performance of an agreement by which the plaintiff, an attorney at Plymouth, was to give up his business to the defendant, in consideration of a certain sum of money to be paid him by instalments. The defendant, having repented of his bargain, resists the completion of it on several different grounds. My princi- pal doubt, however, has been whether, supposing all his other objections to be surmounted, this is an agreement which a Court of Equity can carry into execution. The defendant agrees to give 3,0757. for the plaintiff's busi- ness, and the plaintiff agrees that, at a certain period, his business shall be transferred to the defendant. Now the business of an attorney consists in his being employed by others, from the confidence which they repose in his skill and integrity. In what way, then, is the Court to decree the transfer of such a business ? What is it that I am to direct the plaintiff to do towards the fulfilment of his part of the contract ? The Court must be able to prescribe to both parties what it is that they are reciprocally to per- form. The very ground on which the jurisdiction of a Court of Equity, in decreeing a specific performance, is founded, is that it is able to give possession of the very thing which is the subject of the agreement, and which a INTRODUCTION TO PATIENTS. court of law cannot do. But, when I order the defendant to pay his 3,075/., in what way am I to proceed in order to put him in possession of the plaintiff's business? What acts am I to direct the plaintiff himself to perform in order to effect that purpose ? " In the case of Bunn v. Guy (4 East, 190), there was no occasion to consider whether the agreement could be specifically performed; the only question was, whether there was a legal consideration for the securities that had been actually executed. In that case, however, there were means devised by which C.'s business might have been made to pass into the hands of the other parties, for it was stipulated that he should not in future practise as an attorney within 150 miles of London ; that he should permit his name to be used in the firm for a considerable time after he quitted the business ; lastly and principally, that he should endeavour by all the means in his power to influence and induce his clients to become the clients of Bunn and Guy. The Lord Chancellor doubted not only the pro- priety but also the legality of some of these conditions ; and though it was ultimately determined that they were not illegal, I think he would hardly have decreed them to be specifically executed. " Does the present case furnish any ground upon which I can decree the plaintiff to perform any of the acts, the performance of which was stipulated in that of Bunn v. Quy ? The only part of this agreement which seems at all to have a tendency to provide for its completion by intro- ducing the defendant into the plaintiff's business, is the stipulation that it shall be carried on in their joint names from the 1st September, 1814, till within ten days of the end of Easter Term, 1815 ; a stipulation which has never been acted upon, and the period for acting upon which had expired long before the hearing of the cause. The decree which I should have to make would, therefore, be nothing more than an order upon the defendant to pay his purchase-money ; or if I were to go any further and to 200 INTRODUCTION TO PATIENTS. introduce the words 'upon plaintiff's transferring his business to him,' I should feel myself greatly at a loss in telling the one party what he is to do, or the other what he is entitled to exact. " It may be said, however, that it constitutes part of the agreement that ' the usual clauses ' shall be inserted in the instrument to be executed, and, therefore, that on the basis of that agreement, such clauses might be introduced into it as would sufficiently provide for the defendant's security. But it has not been at all suggested what are the clauses which, independently of positive stipulation, belong to an agreement of this sort as ' the usual clauses.' We have in the case of Bunn v. Guy an instance of such clauses as have been introduced into an agreement of the same nature with the present. But are they to be considered as stipulations so annexed to this sort of transaction as to be introduced as ' the usual clauses ' into the instrument which is to be executed on the basis of the present agreement ? Is the plaintiff to be bound, for instance, not to carry on his business of an attorney within 150 miles of Plymouth, or within any and what other distance from that place, when it is manifest from direct evidence in regard to what passed at the time when this agreement was framed, that no such point ever came into discussion between the parties, and when it has been decided, as in Crutticell v. Lye (17 Ves. 335), that, unless restrained by positive contract, a man may, after selling the goodwill of a trade, set up a business of the same kind at the same place whenever he pleases. Then, is the plaintiff, in order to allure customers, to permit his name to remain in the firm after his concern in the business has entirely ceased ? Admitting that it is not illegal so to contract, yet is it a stipulation so extremely proper for a Court of Equity to sanction that it will intro- duce it, as of course, into an agreement, the parties to which had never expressed any intention of resorting to it ? I apprehend not ; and I should think the same, likewise, of the remaining covenant, which is to influence INTRODUCTION TO PATIENTS. 201 customers to employ the one party to the agreement, because the other party is paid for so influencing and inducing them. " There are no means, therefore, that I can prescribe by which the defendant, when he has paid his money, is to have anything secured to him in return for it. I am not called upon to determine whether this is a void agree- ment, but I think that it is an agreement which a Court of Equity is not able to carry into execution, and that the bill must be dismissed, but without costs, since it was an agreement which was deliberately entered into on the part of the defendant." It would appear from the judgment of Vice-Chancellor Bacon, in the case of May v. Thomson (20 C. D. p. 705), decided in the year 1882, that the Court will not decree specific performance of a contract to sell a medical practice where there is a stipulation for an introduction, an intro- duction being such a contract for personal service as the Court is unable by its decree to enforce. The case was decided on the ground that no binding contract had been entered into ; but there are many instructive observations by the Vice-Chancellor, and the Lords Justices who heard the case in the Court of Appeal, on the subject of the sale of medical practices. The plaintiff wished to sell a non-dispensing medical practice, and the lease of the house where it was carried on, and placed it on the books of a medical agent. After negotiations, the defendant wrote to the plaintiff, accepting the price put on the practice and lease, and adding, " I shall trust to you to give me the best introduction you can during the three months, and afterwards if necessary." The plaintiff, in reply, wrote to the defendant : " I now write to thank you for acceding to my terms, and in return it will be my aim as well as my duty to give you an effectual introduction to all the patients on my list, and I am thankful that, in introducing you, I shall be able to speak (at convenient seasons) of you in such terms as will 202 INTRODUCTION TO PATIENTS. secure their confidence and goodwill towards you, as well as myself," and suggested a date for the defendant's taking over the lease and the practice ; but no date was definitely fixed, nor were the terms of the introduction agreed upon. The defendant afterwards declined to pro- ceed any further, and the plaintiff brought an action for specific performance of the alleged agreement, and for additional or substitutional relief in damages for breach by defendant of the agreement. The defendant's conduct was strongly commented on by the Vice-Chancellor. Vice-Chancellor Bacon, in his judgment, said that though there was no binding contract come to, the mean- ing of the arrangement was obvious. Between two men of reputation, who had any regard to their own pledged words, that was as good an agreement as could be made. . . . There was no doubt the defendant was in all honesty and in all honour bound by his letter to complete the contract, which he obviously intended to enter into by that letter Then there was the stipulation as to personal introduction. " How can the Court direct specific performance of that stipulation? I bear in mind the evidence which had been given, and which I readily receive as a fact, that when medical men sell their practices, the introduction being a principal feature in it, there must be stipulations which ensure the performance of the services attending the introduction by the vendor. As a matter of law, I cannot tell what this introduction means, though, as a matter of fact, I do not affect not to know it perfectly well. There must be some arrangement between them in writing which they can understand, and which judges and juries can understand, if the question ever arises as to what was the meaning of the parties." His lordship did not hesitate to say that the agreement ought in all honesty to be performed. The Vice-Chancellor concluded by saying that the law compelled him to dismiss the action ; but that at the same time the circumstances required him, and the law empowered INTRODUCTION TO PATIENTS. 203 him, to say that, in all justice and honesty, it must be dismissed without costs. The plaintiff appealed from this decision, but his appeal was dismissed. Jessel, M.R., in the course of the argument before the Court of Appeal, said : " I cannot see my way to making a decree for specific performance of an agreement to pur- chase a medical practice. What can the Court order the seller to do ? " Jessel, M.R., in his judgment on the appeal, said (p. 718) : Remarks in " What is the meaning of selling a medical practice ? It is the selling of the introduction of the patients of the Appeal as to doctor who sells to the doctor who buys ; he has nothing else to sell except the introduction. He can persuade his patients, probably, who have confidence in him, to employ the gentleman he introduces as being a qualified man, and fit to undertake the cure of their maladies, but that is all he can do. Therefore, when you talk of the sale of a non- dispensing medical practice of course, when a man keeps what is called a doctor's shop there is a different thing entirely to sell you are really talking of the sale of the introduction to the patients, and the length, the character and duration of the introduction : the terms of the intro- duction are everything. And there is something more, according to my experience, in case of the sale of medical practices, I do not know how the evidence is with regard to it in this case there is always a stipulation that the selling doctor shall retire from practice either altogether or within a given distance. It is so always, and there is also sometimes a stipulation that he shall not solicit the patients, or shall not solicit them for a given time. They are both very important stipulations as regards keeping together the practice for the purchasing doctor." Lord Justice Lindley, in giving his judgment, says (p. 723) : " Anybody who knows anything about pur- chasing businesses of this kind knows perfectly well that 204 INTRODUCTION TO PATIENTS. the price and the introduction are mutually important; the price depends on the introduction if that is fixed, and the introduction depends on the price if the price is fixed. Each acts and re-acts on the other, and it is known per- fectly well that in negotiating matters of this sort it becomes of the utmost importance to settle what sort of introduction is to be given, and what is to happen as regards alteration of terms for the payment of the price or premium if the purchaser does not get the introduction that is bargained for." Payment Provision should be made in an agreement for the sale made to abate of a medical practice, that the payments, or part of the P a y men ^ 8 ^ ^ e ma ^e on the transfer, shall abate if the complete. introduction be not actually carried out or if its duration be curtailed. Otherwise the covenants for the introduction and for the payment of the purchase-money may be held independent of each other, as in Judson v. Botcden (infra) t and the introduction held not a condition precedent to the payment of the sum covenanted to be paid in consideration for such introduction. In such a case the purchaser of the practice could counterclaim for damages for the loss or refusal of the stipulated introduction. The case of Judson v. Bmcdcn (17 L. J. Ex. 172), decided in 1847, was as follows : The plaintiff and defendant had by indenture cove- nanted that they would become partners in the profession and business of surgeons and apothecaries for the term of one year from 1st January, 1845 ; defendant covenanted that he would pay 400/. on the execution of the indenture, and 100/. on the 25th of March of the years 1846, 1847, 1848, and 1849 respectively, making 8007. in all, in con- sideration of which payments the defendant was to be entitled to the entire profits from the said 1st of January, 1845, he paying all expenses. Plaintiff covenanted to introduce defendant to the patients and friends of plaintiff at first as a partner, and ultimately as his successor, with INTKODUCTION TO PATIENTS. 205 the view and for the express purpose of securing their confidence to the defendant. The business of the partner- ship was to be carried on at the then residence of the plaintiff at Ware, and the plaintiff was to continue to reside and practise in the same residence till June 25th, 1845, and at all reasonable times to be ready and willing to attend and prescribe for patients and to assist defendant in carrying on the said practice till the 1st of January, 1846, and at all subsequent times when plaintiff should be at Ware or in the immediate vicinity. Plaintiff also covenanted from and after the 1st of January, 1846, to introduce defendant as his successor, and to use his best endeavours to establish him in his practice as a surgeon and apothecary in Ware, in consideration whereof the defendant thereby covenanted and agreed to pay the plaintiff the further sum of 50/. on the 25th of March, 1846, in addition to and beyond the said sum of 800/. The plaintiff now sued the defendant on his covenant for the payment of the said sum of 50/. due March 25th, 1846. The defendant pleaded that after the said 1st of January, 1846, and at divers times between that day and the 26th of March, 1846, being proper and reasonable times in that behalf, the defendant had requested the plaintiff to intro- duce him, the defendant, as the plaintiff's successor to divers persons who had been patients of the plaintiff, but the plaintiff would not, when requested, or at any other time, introduce the defendant, &c., nor had the plaintiff from the said 1st of January, 1846, introduced the defendant to any person at all as the plaintiff's successor, nor used any endeavour whatever to establish the defendant in the practice of a surgeon and apothecary in the town of Ware, but had wholly neglected and refused to do so, nor had the plaintiff at any time performed any part whatever of the alleged consideration for defendant's covenant to pay the said sum of 50/. 206 INTRODUCTION TO PATIENTS. The plaintiff demurred on the ground that the covenant to introduce defendant to plaintiff's patients was not a condition precedent to the payment of the 50/., but was a distinct and independent covenant. The Court upheld the demurrer, considering the defendant's plea bad, as the introduction to the patients was an independent covenant, and clearly not a condition precedent to the payment of the 50/. 207 CHAPTEE IX. ASSISTANTS. THE majority of the " assistants " of medical practitioners are themselves duly qualified medical men registered under the Medical Acts ; but there is still a not inconsiderable number of unqualified men engaged as assistants. Under the Medical Act, 1858, a practitioner might be Registration registered in respect of his qualification or qualifications ; Act of 1858. he might be registered in respect of a surgical qualification only, or of a medical qualification only, and the privilege of a medical practitioner registered under the Medical Act, 1858, is that he is entitled, according to his qualification or qualifications, to practise medicine or surgery, or medi- cine and surgery, as the case may be, and to recover in due course of law, in respect of such practice, any expenses, charges in respect of medicaments or other appliances, or any fees to which he may be entitled, unless he be a fellow or member of a college of physicians, the fellows of which are prohibited by bye-law from recovering at law their expenses, charges, or fees. The amending Act of 1886 enacts that after an " appointed day " in 1887 a person shall not be registered under the Medical Acts in respect of any qualification referred to in any of those Acts unless he has passed a qualifying examination in medicine, sur- gery, and midwifery ; and a medical practitioner registered after that " appointed day " is entitled to practise medicine, surgery, and midwifery in any part of her Majesty's dominions, and to recover in due course of law in respect of such practice, any expenses, charges in respect of medi- caments or other appliances, or any fees to which he may 208 ASSISTANTS. be entitled, unless he is a fellow of a college of physicians, the fellows of which are prohibited by bye-law from recovering at law their expenses, charges, or fees. Sect. 32 of the Act of 1858 enacts that no person shall be entitled to recover any charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both prescribed and supplied, unless he shall prove upon the trial that he is registered under that Act. Whether persons who practise as surgeons are or are not now liable to penalties for so practising would appear to be an undecided question (as, though the modes of exami- nation have been altered and no penalties under it seem to Statute have been enforced for many years, the Statute 3 Hen. 8, 3 Hen. 8, c. 11, has never been repealed. (See Davies v. Makuna, Ante, p. 179. 29 C. D. 596.) The preamble of that statute recites that " Forasmuch as the science and cunning of physick and surgery (to the perfect knowledge whereof be requisite both great learning and ripe experience) is daily within the realm exercised by a great multitude of ignorant persons, of whom the greater part have no manner of insight in the same, nor in any other kind of learning ; some also can no letters on the book, so far forth, that common artificers, as smiths, weavers, and women, boldly and accustomably take upon them great cures, and things of great difficulty, in the which they partly use sorcery and witchcraft, partly apply such medicines unto the disease as be very noious, and as nothing meet therefore, to the high displeasure of God, great infamy to the faculty, and the grievous hurt, damage, and destruction of many of the king's liege people, most especially of them that cannot discern the uncunning from the cunning " : and it is enacted, " That no person in the City of London nor within seven miles of the same take upon him to exer- cise and occupy as a physician or surgeon except he be first approved and admitted by the Bishop of London, or by the Dean of Paul's for the time being, calling to him ASSISTANTS. 209 or to them four doctors of physick, and for surgery other expert persons in that faculty, and for the first examina- tion such as they shall think convenient, and afterward alway four of them that have been so approved, upon pain of forfeiture for every month that they do occupy as physicians or surgeons . . . ." ; and there are similar provisions for examining persons out of the City and the precinct of seven miles. Thirty years later the " chirur- geons were covetous," and were not in such good repute. The preamble of the statute 34 & 35 Hen. 8, c. 8, recites Statute 34 & the statute above and that, " Sithence the making of which c 8 en> 8 ' said Act the Company and Fellowship of Surgeons of London, minding only their own lucres, and nothing the profit or ease of the diseased or patient, have sued, troubled, and vexed divers honest persons, as well men as women, whom (rod hath endued with the knowledge of the nature, kind, and operation of certain herbs, roots, and waters, and the using and ministring of them to such as been pained with customable diseases . . . . ; and yet the said persons have not taken any thing for their pains or cunning, but have ministred the same to poor people only for neigh- bourhood and God's sake, and of pity and charity. And it is now well known that the surgeons admitted will do no cure to any person, but where they shall know to be rewarded with a greater sum or reward than the cure extendeth unto; for in case they would minister their cunning unto sore people unrewarded, there should not so many rot and perish to death for lack or help of surgery, as daily do ; but the greatest part of surgeons admitted been much more to be blamed, than those persons that they trouble. For although the most part of the persons of the said craft of surgeons have small cunning, yet they will take great sums of money, and do little therefore, and by reason thereof they do oftentimes impair and hurt their patients rather than do them good " ; and it is enacted that any subject of the king having knowledge and experience of herbs, &c., may minister to outward sores c. p 210 ASSISTANTS. Apothecaries Act, 1815, prohibits unqualified persons from practising. What is prac- tising as an apothecary? Ante, p. 179. Practice of apprentice of apothecary should be confined to his master's residence. and give drinks for certain diseases without incurring any penalty. The more recent and, on the subject of unqualified assistants, more important Act, the Apothecaries Act, 1815 (55 Geo. 3, c. 194), prohibits (sect. 14) any person from practising as, or (sect. 17) from acting as, assistant to an apothecary unless he has obtained a certificate of his qualification to practise as an apothecary, or to act as such assistant, as the case may be. By sect. 20 penalties of 20/. and 5/. respectively for every offence are imposed on any person who acts or practises as an apothecary, or acts as assistant to any apothecary to compound and dispense medicines, without having obtained a certificate ; and, by sect. 21, charges may not be recovered unless the practi- tioner has obtained a certificate. The Act does not define the nature of an apothecary's employment, but the question has sometimes come before the Courts. In Apothecaries Co. v. Alkn (4 B. & Ad. 625), it was held that a person who advises patients, and compounds and sells the medicines compounded by him- self, but does not, and cannot, make up physician's pre- scriptions, is liable to the penalties of the Apothecaries Act. In Davics v. Makuna y Cotton, L.J., said, that dis- pensing, mixing medicine, giving medical advice, and attending the sick as medical adviser, must be considered acting as an apothecary. In the case of Apothecaries' Co. v. Greemcood (2 B. & Ad. 708), the defendant was apprenticed to his brother, an apothecary. The brother, who resided eight miles from Halifax, took a house there, where the defendant resided. It was proved that the defendant had visited and given medicine to several patients, but he never received any- thing for his attendances, and his brother was paid for the medicines furnished. This action was brought to recover penalties for acting as an apothecary without certificate. The judge directed the jury to find a verdict for one penalty of 20/., but reserved liberty to the defendant to ASSISTANTS. 211 move to enter a nonsuit. It was, on the argument, con- tended that the defendant was only acting as an assistant, which was a distinct offence, subjecting the party to a different forfeiture. Lord Tenterden, 0. J., said : " If the defendant in this case be not the apothecary, then his brother must be. Now, could the latter maintain an action against patients he never saw ? " and afterwards, in delivering the considered judgment of the Court of King's Bench, he said : " The Act does not in terms require a practising on the party's own account ; and it must be obvious that, if a case like the present be not within the Act, a door will be opened whereby the objects of the Act may be evaded, and there may be a practising at several towns under one certificate, and at some of them by persons, under the name and colour of apprenticeship, with little or no benefit to the patients from the skill or knowledge of the person who has obtained the certificate. We think the only safe rule is to confine the practice of apprentices to the residence of their master, whereby the patients may, in general, have the benefit of his skill. In the present case few of the patients could have that benefit in any degree. We think, therefore, the defendant incurred the penalty of the statute." The Medical Act, 1858, which was passed for the pur- pose of establishing a register of medical practitioners, so that all persons might be able to ascertain the qualifications of those they apply to, has not by implication repealed the Apothecaries Act, 1815. (Dames v. Makuna, 29 C. D. 596 ; Leman v. Fletcher, L. B. 8 Q,. B. 319.) A practitioner registered under the Act of 1858, with a surgical qualifi- cation only, was held to be prevented by the Apothecaries Act from recovering for attendance and medicine supplied, except in a surgical case. (Leman v. Fletcher, ubi supra.) It was also held that, where a person, unqualified at the time of the services rendered, became qualified subse- quently, and before the trial, he could not maintain an action for his fees. Both qualification and registration 212 ASSISTANTS. As to reco- vering fees for medical aid given by unqualified assistant. Personally rendering medical must exist at the time the services are rendered, and not merely at the time of the trial. (Lenta n v. Ilowley, L. R. 10 Q. B. G6, where some earlier cases were not followed.) A qualified practitioner cannot recover charges for medical aid and advice rendered and the cost of medicine supplied by his unqualified assistant without consulting the qualified practitioner. (Hoicarth v. Brearlcy, 19 Q. B. D. 303 ; 3 Times L. E. 650.) The facts in that case were, that J. L. F. was a duly qualified and registered medical practitioner, practising at Bury. He had also a branch practice, which was managed by his brother, A. F., who was not qualified to practise medicine or surgery, nor had he obtained a certi- ficate enabling him to practise as an apothecary. In difficult cases A. F. consulted his brother, but A. F. had alone rendered the services and supplied the drugs, in respect of which the action was brought, to the defendant, and had not at any time consulted his brother about the defendant's case. All the drugs and medicines at the branch surgery were bought and paid for by J. L. F., the qualified practitioner. Judgment was given for the defendant. Lord Coleridge, C. J., said : " The relation between J. L. F. and his brother has not been clearly defined ; they were either partners, or master and servant. In effect the duly qualified practitioner sues for services none of which he personally rendered. I do not mean simply that he did not physically render them, but that he gave no advice whatever in regard to, and never even saw the defendant. If the qualified man had given advice, and the unqualified man had been merely the ministering hand under the directing brain of the qualified man, I should be prepared to hold that the ser- vices were those of the qualified man. I think that view con- sistent with common sense. But in this case we have to consider an Act of Parliament the provisions of which, in my opinion, put an end to the plaintiff's right to sue. The Act says, ' no person shall be entitled to recover any ASSISTANTS. 213 charge in any court of law for any medical or surgical advice, attendance, or for the performance of any operation, or for any medicine which he shall have both prescribed and supplied unless he shall prove upon the trial that he is registered under this Act.' The qualified man who brought this action did prove that he was registered, but he sued for medical attendance, which he personally, in the sense I have already explained, did not render at all. The ground of my decision is that none of the services were rendered by the plaintiff, and that he cannot recover for services rendered without any reference to himself by another man who stood in this indefinite relation towards him. It is immaterial, I think, what that relation was, though perhaps it is safer to consider it as that of master and servant, and to say that the master cannot recover for services with no part of which he had anything to do." Denman, J., said : " This action was brought to recover for services alleged to have been rendered to the plaintiff's assignor, who was a duly qualified practitioner. It is for the plaintiff to prove that they were so rendered. This he has not proved. He has only shown that another person, without in any way consulting him, rendered them. The work, in my opinion, was not done for the patient by the qualified man, nor can the plaintiff in this case recover as for work done by the qualified man's servant. Looking at the Act, I think that a registered practitioner cannot give a roving authority to an unqualified person to prac- tise in his name without consulting him or taking his advice, and then sue for the services rendered by the un- qualified person. It would be entirely contrary to the pur- pose and intention of the Act. The services rendered by A. F. were in no way the services of J. L. F." An unregistered assistant may sue a registered practi- tioner for his salary. (De la Rosa v. Prieto, 16 C. B. N. S. 578.) Under the Pharmacy Act, 1868, it is unlawful for a Pharmacy person who is not registered under the Pharmacy Acts (not ^sal^of ' &S poisons. 214 ASSISTANTS. General hiring is hiring for a year. Assistant dismissed at other time than end of a complete pe- riod entitled to damages. Dismissed for misconduct cannot recover salary for cur- rent period ; but can recover salary overdue. being a qualified apothecary or M.R.C.V.S.) to sell or keep open shop for retailing, dispensing or compounding poisons. A qualified practitioner who "covers" an unqualified assistant lays himself open to professional censure. It is advisable, in the interest both of principal and assistant, that the terms of the contract of service should be clearly defined and reduced to writing ; for a general luring, if no time is mentioned, is to be taken as a hiring for a year; that is, the contract is that the relation of master and servant, or principal and assistant, shall con- tinue for a year certain. (Fuiccctt v. Cash, 5 B. & Ad. 906.) That salary is paid quarterly, monthly, or even weekly, makes it none the less a hiring for a year. If the parties go on for several years, a contract is presumed for a year in the first instance, and so on for each succeeding year, as long as it shall please the parties ; and such a contract being implied from the circumstances, and not expressed, a writing is not necessary to authenticate it. In such a case, therefore, if the principal capriciously dismisses his assistant at any time other than the com- pletion of the current year of service, the assistant is entitled to reasonable damages. (Bccston v. CoUycr, 4 Bing. 309.) And, conversely, if the servant or assistant be rightfully dismissed for misconduct before the end of the current year of service, having thus violated his duty before the year expired, so as to prevent his master having his service for the whole year, he cannot recover wages or salary pro rata for the period expired since the last pay- ment of wages or salary became due (Turner v. Robimon, 5 B. & Ad. 789) ; and this although the master has brought an action against him for the misconduct and has recovered damages. The same rule appears to apply if the servant abruptly leaves his master's service during the year. (Hutmann v. Boulnois, 2 Car. & P. 510.) The assistant is not, however, precluded by such dismissal or dereliction of duty from recovering such salary as has actually become due and is unpaid. ASSISTANTS. 215 The presumption, however, that a general hiring is to Presumption be taken to be a hiring for a year, may be rebutted. In hiring may Bayley v. Rimmett (1 M. & W. 506), an action had been be rebutted, brought by an assistant surgeon to recover the amount of salary due to him from his employer. The plaintiff claimed for salary for 161 days at the rate of 200/. per annum. No specific contract of hiring was proved. It appeared that after the plaintiff had been some time in the defen- dant's employment, he was taken ill, and went to a hospital, where he remained three months. He did not return to his employment, nor did the defendant request him to do so. It appeared that the plaintiff had been paid different sums of money, but not at any fixed or definite periods. It was submitted that upon this evidence it must be taken to be a general hiring, and that in legal estimation that was a hiring for a year, and therefore that no wages were recoverable, as the year's service had not been performed. Grurney, B., thought that if even this were to be taken to be a hiring for a year, the strict rule of performance was not applicable to a case where the performance was pre- vented by the act of God, and that the plaintiff was entitled to recover rateably for the time he was engaged in the defendant's employ. The jury accordingly found for the plaintiff for the sum of 59/. 16s., the amount claimed. A rule for a new trial was moved for on the ground that unless the year's service was performed the plaintiff could not claim any wages, and that the damages ought to be reduced. Lord Abinger, C.B., said: "On the first ground, I think there should be no rule, since there was no evidence of any hiring at all ; there was evidence of a service, and I incline to think that the interpretation put on the contract by the plaintiff is the true one, namely, that he was to be paid for his services what they should be worth." Parke, B., said : " Admitting that there was some evi- dence of a hiring, and agreeing in the proposition that a ASSISTANTS. general liiriug, if unexplained, is to be taken to be a hiring for a year, I think there is abundant evidence in this case to show that there was no hiring for a year. It appears that payments were made, but they were not made according to the yearly amount, nor at any definite periods of the year. The parties separated in the middle of the year, and neither did the plaintiff return, nor did the defendant require him to return and complete the service : . . . there is really nothing to show that the compensation was to be paid at the end of the year." A rule was granted on the second ground, as to the reduction of damages, to which the plaintiff assented. Where a servant was engaged for twelve months certain, after which time either party was to be at liberty to termi- nate the agreement by giving the other a three months' notice, it was held that, at the close of the twelve months, the agreement could be determined by either party without any notice, and that the stipulation as to a three months' notice only applied in case the engagement was prolonged beyond the three months. (Langton v. Carkton, L. R. 9 Reasonable J} x . 57.) But where a service from year to year is con- on usage of tinued without any definite stipulation as to length of leprofes- notice necessary to determine it, what is a reasonable notice to be given to terminate the contract at the end of a current year depends on the usage or custom of the trade or profession. The rule that a general hiring is a hiring for a year is not an inflexible rule. Each particular case must depend upon its own circumstances, and the rule is subject to an exception in which the agreement of hiring is subject to some stipulation, either express or implied by custom, enabling either party to determine the contract by notice. (Buckingham v. Surrey and Hants Canal Co., 46 L. T. 885; and see Loire v. Walter, 8 T. L. B. 358.) Such customs vary in different employments. Assistant is In the case of domestic or menial servants there is a tic servant! 8 " well- established rule that the contract may be determined ASSISTANTS. 217 by a month's notice or a month's wages; that depends upon custom. It was held that such custom was not applicable in the case of a chemist's assistant. (Broxham v. Wagsta/e, 5 Jur. 845.) In Smith v. Hay ward (7 Ad. & E. 544), the defendant, Smith v. a surgeon, had engaged the plaintiff as dispenser of drugs at a salary of fifty guineas a year, had paid him a quarter's notice held salary at that rate at the end of the first quarter, and had shortly afterwards dismissed him. The jury found that the agreement was subject to a three months' notice. In the case oiBondv. Brereton, however, before Day, J., reported in the "Times" newspaper of 19th January, 1888, it was held that there was a usual custom in the medical pro- notice held fession that one month's notice on either side would termi- nate an assistant's agreement, and that the amount of one month's salary, which had been paid into Court, was sufficient to meet the plaintiff's legal claims against the defendant in respect of a capricious dismissal by the defendant. Where personal considerations are of the foundation of Assistant is the contract, as in cases of principal and agent and master by^deathof and servant, the death of either party puts an end to the principal. relation, and, in respect of service after the death, the contract is dissolved, unless there be a stipulation express or implied to the contrary. It is obvious that if the servant die, his master cannot compel his representatives to perform the service in his stead or pay damages, and equally by the death of his master, the servant is discharged of his service, not in breach of the contract, but by implied condition. (Farrow v. Wilson, L. E. 4 0. P. 744.) An assistant or his representatives, as the case may be, in the event of the contract of service coming to an end through the death of either party, will be able to recover for the service rendered at any rate down to the last time when a payment became due previous to the death (see Stubbs v. Holywell Rail. Co., L. E. 2 Ex. 311), in which case a consulting engineer had been employed for fifteen 218 ASSISTANTS. months to complete certain works. He was to be paid 5007. , as his fee or salary, in equal quarterly instalments. Before the work was finished, and whilst two quarterly instalments which were due to him were unpaid, he died. The company contended they were only liable to pay a quantum meruit for the work actually done ; but it was held that the right the engineer would have had in his lifetime to sue for the instalments in arrear was not taken away by his death, that the contract was not rescinded, although the act of God had rendered further performance impossible ; and the engineer's representatives were held entitled to recover. Assistant may An assistant, like a clerk or other servant, may, of course, for good 88 * be dismissed for good cause. In Callo v. Brouncker (4 0. cause. & p. 518), it was laid down that where a servant has been cause* to/ 00 ** en g a g e( l f r a specified time, he can be dismissed before dismissal of the expiration of that time only if he has been guilty of ... moral misconduct, either pecuniary or otherwise, wilful disobedience ; disobedience, or habitual neglect. In Lacy v. OsbaJdiston neglect caus- (8 C. & P. 80), an employer was held justified in dismissing ing danger to 8ervan t who was so conducting himself that it would be principal s ... . business; injurious or dangerous to the interests of his master to keep him. In Wise v. Wilson (1 C. & K. 662), it was held that if an assistant caused real danger to his master's business by coming home late so that he could not com- pound medicines, and employed the shop-boy to do it, the master would be justified in dismissing him. It has been revealing said that betraying his employer's secrets will justify the dismissal of a servant. (Beeston v. Collyer, 2 C. & P. 607.) claiming to be In the case of Amor v. Fearon (9 Ad. & E. 548), a clerk a partner. j^ ^g^^ j n g 00( j f a ith, apparently, that he was a partner of his employer, and the employer was held justified in dismissing him, although he had offered to continue to discharge his duties as clerk ; for a claim to be a partner was incompatible with f his position as a servant. If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct ASSISTANTS. 219 which justifies immediate dismissal. That misconduct need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial, or is likely to be prejudicial, to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant. (Pearce v. Foster, 17 Q. B. D. 536.) A master may justify the dismissal of a servant by Misconduct showing that at the time of the dismissal he knew the servant to have committed an act which justified it ; and even after, the jury ought not to be asked whether the master was i s sufficient to induced to dismiss his servant from that or from some justify the principal in other cause. (Ridgway v. Hunger/Orel Market Co., 3 Ad. dismissing the p -p 17"!^ assistant. A dismissal may also be justified where the misconduct which would have entitled the master to dismiss the servant was not known to him at the time but discovered subsequently. (Spotsicoodv, Barrow, 5 Ex. 110.) A servant may be dismissed for refusal to obey the Disobedience. reasonable orders of his master, and a servant hired by the year and so dismissed before the end of the year cannot recover any wages. After a refusal on the part of the servant to perform his work, the master is not bound to keep him on as a burthensome and useless servant to the end of the year. (Spain v. Arnott, 2 Stark. 256.) The same applies whatever the period of hiring, and the servant cannot recover any part of the salary current from the last pay day at the time of his dismissal. A surgeon is responsible civilly to his patients for the Eesponsi- negligence or carelessness of his assistant, for he is bound coffer prm ~ to avoid introducing into his business persons not of negligence competent skill. (Hancke v. Hooper, 7 C. & P. 81.) An assistant, professing to be a skilled person, may be Incompe- dismissed for incompetency ; " spondet peritiam artis" In tenc y- Harmer v. Cornelius (5 C. B. N. S. 236), an action against a master for dismissing a person who was engaged as being 220 ASSISTANTS. a skilled workman, "Willes, J., in delivering the judgment of the Court, said that if an apothecary be employed for reward, he impliedly undertakes to possess and exercise reasonable skill in his art ; that the public profession of an art is a representation and undertaking to all the world that the professor possessed the requisite ability and skill ; and that the Court could see no material difference between a servant who will not, and a servant who cannot, perform the duty for which he was hired. A servant dismissed without notice for incompetency cannot recover wages for the broken period of service. (Scarfc v. Ridley, 28 L. T. 411, in which case it was said that there was no difference between misconduct and incompetency.) Temporary Temporary illness of an assistant will not be a ground assistant ^ or discharging him, or for withholding his salary during his incapacity to do his work. In the case of Cuckson v. Stones (1 El. & El. 248 ; 28 L. J. Q. B. 25), the plaintiff had been engaged to serve the defendant for ten years as a brewer, and to teach him to brew, at a saLory to be paid weekly ; the plaintiff fell ill, and for thirteen weeks was unable to attend personally to business ; after his recovery he resumed his duties, but his employer refused to pay him salary for the thirteen weeks, and the plaintiff sued for such salary. Lord Campbell, C.J., in delivering the judgment of the Court of Queen's Bench, said: "If the plaintiff from unskilfulness had been wholly incompetent to brew, or by the visitation of God he had become from paralysis or any other bodily illness permanently incom- petent to act in the capacity of brewer for the defendant, we think that the defendant might have determined the contract. He could not be considered incompetent by illness of a temporary nature ; but if he had been struck with disease so that he could never have been expected to return to his work, we think the defendant ought to have dismissed him and employed another brewer in his stead. Instead of being dismissed he returned to the service of the defendant when his health was restored, and the ASSISTANTS. 221 defendant employed him and paid him as before. At the trial the defendant's counsel admitted that the contract was not rescinded. The contract being in force, we think that there was no suspension of the weekly payments by reason of the plaintiff's illness and inability to work. It is allowed that under this contract there could be no deduction from the weekly sum in respect of his having been disabled from working for one day of the week : and while the contract remained in force, we see no difference between his being so disabled for a day, or a week, or a month." In K. v. Raschen (38 L. T. 38), a clerk, who had been Illness caused obliged to be absent from his duties for a period on account of illness, but who had not been dismissed, sued for his duct - salary. It was held that he was entitled to his salary for that period, and that it was no answer to his claim that the illness was caused by an act of misconduct on his part, which occurred before the contract of service, and which he did not know at the time of the contract would lead to his illness, and render him incapable of performing his work. Hawkins, J., said : " If the plaintiff had been aware, at the time of the making of the contract, that he would be incapacitated from performing his duties, I am not prepared to say that he could recover. But there is nothing to show that he knew anything of the illness which he subsequently suffered from until the agree- ment had been entered into ..... " Permanent illness, being a disability arising from the act of God, excuses the non-performance of a contract of service (Boast v. Firth, 4 C. P. 1), at any rate where the illness arises after the making of the contract. It might be otherwise if the illness existed at that time, so that the covenantor covenanted with knowledge of his inability. An assistant wrongfully dismissed may sue his employer Assistant for damages for breach of contract. He should not wait until the end of the period of service which was contracted should bring for, and then sue for work and labour done as if he had damages promptly. 222 ASSISTANTS. rendered the services until the expiration of that period. (Smith v. Ifdi/irard, 7 Ad. & E. 544, a case of a surgeon's dispenser ; Fewings v. Tisdall, 1 Ex. 295.) It is the duty of an assistant so dismissed to use diligence to find other employment. He ought not to remain idle in the expecta- tion that he will recover from the master who dismissed him as much as another employer would have paid him for his services. The measure of the damage is rather such loss as may be probable than such as may actually have been incurred. So where a partnership by which the plaintiff had been engaged for a period as agent, was dissolved during the period, such dissolution operated as a wrongful dismissal ; and the plaintiff, refusing an offer of employment on the same terms as before by the con- tinuing partners, brought his action for damages : it was held by the Court of Appeal that he was only entitled to nominal damages. (Brace v. Caldtr, [1895] W. N. 96 ; Times Newspaper, May 30th, 1895.) Assistants are frequently required, as a condition of their employment, to enter into a covenant restraining by assistants, them from competing with their employer during their service and after its termination, and it is generally intended that the restraint shall continue beyond the period of the service. (As to these restrictive covenants generally, see Chapter on Goodwill, ante, pp. 108 seq.) An assistant is not absolved from such a restraint by reason of his having been wrongfully dismissed from his employment (see Proctor v. Sargent, 2 Man. & Or. 20), or because his employer has not duly performed or paid all that he undertook to perform or pay on his part, as in the case of Carncs v. Ncsbitt (7 H. & N. 778), where the master neglected to find and provide for the assistant a dwelling-house, as provided for in the contract between them. Either partner Where an assistant has entered into such a restrictive ma trni 0rce covenant with principals who are partners, such partners, covenant. on dissolution, have joint and several interests, and either Restrictive ASSISTANTS. 223 partner may sue to restrain a breach ; a release to the assistant by one partner does not avail him against an action by another partner, and he is not at liberty to practise, in violation of his covenant, in the service of one of the late partners without the consent of the other or others. (Palmer v. Mallet, 36 C. D. 411 ; compare Swallow v. Day, 12 Jur. 403.) If the practitioner for whose benefit the covenant was entered into has died or retired from practice, the covenantor is not thereby released from his covenant unless the covenant was by special terms confined to the lifetime of the covenantee, or the time during which he should continue to practise. A covenant not to set up as a surgeon within certain limits is broken if the covenantor acts as an assistant within those limits. (Palme)' v. Mallet, ubi supra.} An infant may enter into a contract which is beneficial Infant, to himself, and he is bound by it ; and a contract by which he gets employment, coupled with a bargain on his part that he will not compete after his service ceases, may be beneficial to him. Where an infant has continued to be employed after attaining his majority, and has subse- quently committed a breach of a restrictive covenant, an injunction has been granted. (Walton v. Everington, 1 Times L. B. 396 ; Evans v. Ware, [1892] 3 Ch. 502.) INDEX. ABSENCE or PARTNER. See Incapacity of Partner. ACCOUNT, partners must account to each other (sect. 28), 84. for private profits (sect. 29), 84, 85. for profits of competing business (sect. 30), 84, 85. for profits from information gained in course of partner- ship business, 85. persons who may demand, assistant remunerated by share of profit, .58. executors of deceased partner (sect. 42), 104. judgment creditor who has obtained a charge on, or assignee of, separate share, but only after dissolution (sects. 23, 31), 74, 85. creditor receiving debt out of profits, or interest varying with profits (sect. 2), 5759. widow or child, or vendor of goodwill, receiving money out of profits, 5759. ACCOUNTS, duty of partners to render to each other (sect. 28), 84. right of partners to inspect (sect. 24), 75, 76. agreements in articles as to keeping, 14, 15. as to taking shares at value in last account, 66 seq. effect of acquiescence in non-observance of mode of, 66 seq. incoming partner takes subject to any variation, 71. settling after dissolution (sect. 44), 105. And see Books of Partnership. ACQUIESCENCE in method of taking accounts and valuations, 66 sej. ADMISSION OF NEW PARTNER. See Introduction of New Partner. ADVERTISEMENT OF DISSOLUTION (sects. 36, 37), 93. any partner may give, 93. c. o 226 INDEX. AGENT, each partner is, for partnership purposes (sect. 5), 61. AOEEEMENT, intention of, decides whether partnership is constituted, 59. And see Articles of Partnership. ANNUAL ACCOUNTS, where agreement to take has not been observed, 66 seq. See Variation of Partnership Rights and Duties. ANNUITY CHARGED ON PROFITS (sect. 2), 56. widow or child of deceased partner or vendor of goodwill receiving, not necessarily a partner (sect. 2), 57, 58. implies a covenant that business shall be carried on, 59. purchaser of practice with notice of, takes subject to, 59. APOTHECARY, unqualified person may not practise as, 89, 210. cannot recover charges unless he has a certificate, 210. what is practising as, 89, 179, 210. partnership with unqualified, 89. practice of apprentice to, should be confined to principal's residence, 211. APPARENT PARTNERS may be treated as members of partnership till notice given (sect. 36), p. 93. APPOINTMENTS, reasons why they should by agreement be partnership property, 12, 13. valuation of, on dissolution, 94. on transfer of practice generally guaranteed, 40, 41. portion of purchase-money should be retained, pending grant of to successor, 40, 41. APPORTIONMENT OF PREMIUM (sect. 40), 95 seq. See Premium. ARBITRATION, arbitrator may award dissolution, 103. may order part of a premium to be refunded, 103. clause relating to, continues in force where partnership con- tinued after term has expired, 82, 83. ARTICLES OF PARTNERSHIP, form of, 6 seq. determine interests, rights, and duties of partners (sect. 24), 74. breach of, a ground for dissolution (sect. 35), 90. rescission for fraud or misrepresentation (sect. 41), 103. variation of, by consent may be express or implied (sect. 19), 66. INDEX. 227 ASSIGNMENT OP SHAKE, assignee cannot call for an account until dissolution (sect. 31), 85, 86. assignee has no right to interfere in management, 85, 86. See Transfer of Share. ASSISTANTS, 207. usually paid monthly, 49. agreement in articles as to hiring and dismissing, 14. sharing profits (sect. 2), 49. not necessarily partners, 49. have a right to an account, 58, 59. contract of service should be in writing, 214. general hiring of, presumed to be hiring for a year, 214, 216. but presumption may be rebutted, 215 seq. if rightly dismissed, cannot recover salary for broken period, 214, 220. principal's liability for negligence of, 63, 219. what notice sufficient to terminate engagement of, 216, 217. assistant is not a menial servant, 217. what misconduct will justify dismissal incompetency, 219. moral misconduct, 218. habitual neglect, 218. wilful disobedience, 218, 219. claiming to be partner, 218. causing danger to principal's business, 218. revealing principal's secrets, 218. permanent illness, 221. misconduct unknown at time of dismissal may justify, 219. death of either party, 217. salary in case of, 217. dissolution of partnership, 222. temporary illness will not justify dismissal, 220. salary due during temporary illness, 220. unless caused by assistant's own fault, 221. should agree not to compete with principal, 48. wrongful dismissal, remedies for, 221. will not absolve from restrictive covenant, 130, 222. restrictive covenant entered into by, in favour of partnership, may be enforced by either partner, 131, 188, 222. Q2 228 INDEX. ASSISTANTS continued. unqualified, principal unable to recover fees for independent work of, 212. may sue principal for his salary, 213. infant. See under Restrictive Covenants. ASSISTANTSHIP WITH A VIEW TO PARTNERSHIP, not Usually a desirable arrangement, 52, 53. BANK, all money received should be paid into the partnership account at, 11. desirable that purchase-money should be paid into, 34. BANKRUPT, personal earnings of, while undischarged, 87, 88. no authority to bind firm (sect. 38), 94. cannot be compelled to enter into restrictive covenant, 112. BANKRUPTCY, dissolves partnership (sect. 33), 86. creditor who advanced money for share of profits postponed in (sect. 3), 60. so vendor of goodwill for share of profits, 60. personal earnings of undischarged bankrupt, as to right of trustee to, 87, 88. trustee can claim where income not solely attributable to personal skill, 87, 88. trustee can claim earnings of surgeon-apothecary, 87, 88. cannot claim income of bone-setter, 87, 88. can "only claim earnings strictly personal where the income is of the nature of a salary, 87, 88. or received under contract periodically, 87, 88. but bankrupt and his family should have provision thereout, 88. Court cannot restrain bankrupt from making agreement as to salary, 87. nor compel him to earn, 87. solvent partners on bankruptcy of one partner have a right to collect partnership debts, 88. and interference by trustee will be restrained, 88. remedy of partner who has paid premium on bankruptcy of co-partner, 96 seq. professional goodwill is not apparently an asset in, 111. INDEX. 229 BENEFIT, of appointments retained on dissolution must be accounted for, 94. from connection with firm (sect. 29), 84, 85. from competing business (sect. 30), 84. BOND. See Restrictive Covenants. BOOK DEBTS not generally included on transfer of practice, 4, 27, 32. BOOKS OF PARTNERSHIP, to be kept at principal place of business (sect. 24), 14, 76. right of partners to inspect (sect. 24), 76. duty of partners to keep (sect. 28), 84. BOOKS RELATING TO PRACTICE should on transfer be handed to purchaser, 45. BREACH OF ARTICLES a ground for dissolution (sect. 35), 90. BUSINESS OF PARTNERSHIP, business includes profession (sect. 45), 106. right of partner to transact (sect. 24), 75. continuation of, after expiration of term (sect. 27), 82. conduct injurious to, a ground for dissolution (sect. 35), 90. CANCELLATION of agreement for transfer on non-payment, 34, 35. CAPITAL, 9. what usually required, 4, 5. CHARGING ORDER ON PARTNER'S INTEREST (sect. 23), 73, 74. gives other partners a right to redeem or purchase, 73, 74. an option to dissolve (sect. 33), 86. COMMITTEE OF LUNATIC PARTNER may apply for dissolution (sect. 35), 90. COMPETING BUSINESS, partner carrying on, without consent, must account for profits (sect. 30), 84, 85. CONDUCT, variation of articles by. See Variation of Partnership Eights and Duties. CONSENT, partner cannot be introduced without (sect. 24), 75. CONSIDERATION. See Restrictive Covenants. 230 INDEX. CONTINUATION OF PARTNERSHIP, after expiration of term (sect. 27), 82. is on old terms so far as applicable to a partnership at will, 8284. CONTRACT, for sale of practice means contract for sale of introduction to patients, 32, 108, 203. Court cannot decree to be specifically performed where an introduction is stipulated for, 201. COUNTY COURT, may make charging order on partner's interest (sect. 23), 73. limited jurisdiction of, for dissolution and winding up, 90. COURT, grounds for dissolution by (sect. 35), 89 seq. discretion of, as to dissolution of partnership (sect. 35), 89 92. return of premium (sect. 40), 95 seq. See Restrictive Covenants. COVENANTS. See Restrictive Covenants, CREDITOR, lending money for share of profits not necessarily a partner (sect. 2), 5759. postponed in bankruptcy (sect. 3), 60. CUSTOMERS, render of, by vendor of goodwill, 116. DAMAGES, recovered against partner for partnership act are a partner- ship debt, 63. but partner who, by misconduct or negligence, occasions such damage must indemnify partnership, 63. DEATH OF PARTNER, dissolves partnership (sect. 33), 86. effect as regards return of premium (sect. 40), 95. professional goodwill, 110. surviving partners are proper persons to get in the partnership debts, 88. INDEX. 231 DEBTS, charging order for separate debt of partner (sect. 23), 73, 74. right of partner to have firm's debts paid (sect. 39), 94. amount of outgoing, or deceased, partner's share, is a debt (sect. 43), 105. DECREE, dissolution usually dates from, 92. unless earlier, where actual misconduct, 93. DEED, partnerships by deed may be dissolved by writing (sect. 26), 82. See Articles of Partnership. DEFINITIONS, partnership (sect. 1), 55. firm (sect. 4), 60. business (sect. 45), 106. Court (sect. 45), 106. goodwill, 108. DENTISTS. See Restrictive Covenants. DEPOSIT. See Instalments. DISCRETION OF COURT. See Court ; Restrictive Covenants. DISPUTES, Court will not dissolve partnership for mere squabbles, 92. DISSOLUTION OF PARTNERSHIP, advertisement of (sect. 36), 93. any partner may notify (sect. 37), 93. by award of arbitrator, 103. by bankruptcy (sect. 33), 86. by death, 86. by expiration of term (sect. 32), 86. by notice at end of stated period, 18, 19. by notice (sects. 26 and 32), date of dissolution by (sect. 32), 86. illegality (sect. 34), 88, 89. charging order on share (sect. 33), 86. by Court (sect. 35), 89 seq. for breach of agreement, 92, 101. for conduct injurious to the partnership, 91, 92. for destruction of confidence, 92, 102, 103. for incapacity, 90, 91 . for lunacy, 89, 91. 232 INDEX. DISSOLUTION OF PARTNERSHIP continued. by Court continued. for misconduct, 90, 92. for quarrels, 92. when just and equitable, 90. dates generally from decree, 92. but earlier if actual misconduct, 93. driving partner to dissolve, 100. consequences of rescission for fraud (sect. 41), 103, 104. assignee of share has right to account after (sect. 31), 85. option to dissolve at fixed periods not generally advisable, 8. considerations to be regarded where power reserved to dissolve in first year, 17. option to dissolve where partner allows his share to be charged (sects. 23 and 33), 72, 73. right to have partnership property duly applied (sect. 39), 94. agreements as to valuation upon, 66 et seq., 76, 83. as to profits made after (sect. 42), 104, 105. DORMANT PARTNER, liability of, on retirement (sect. 36), 93. DRUGS, value of, not generally included in value of practice, 32. DURATION OF PARTNERSHIP after term has expired (sect. 27), 82. See Continuation of Partnership. EXECUTION, none against partnership property for partner's debt (sect. 23), 73. EXPIRATION OF PARTNERSHIP TERM, dissolution by (sect. 32), 86. continuation of business after, presumed to be continuation of partnership (sect. 27), 82. EXPULSION OF PARTNER (sect. 25), 80. none without express power, 80. professional goodwill need not be realised upon, 112. power in articles as to is of penal nature, and must be strictly construed, 112. must be exercised in good faith for the benefit of the partnership, 112. before expulsion, partner must have opportunity of explaining his con- duct, 81. INDEX. 233 EXPULSION OF PARTNER continued. power in articles as to continued. single partner having power to expel need not give his reasons, 81. such power inapplicable to a partnership at will, and cannot be exercised after term has expired, 82. FRAUD, effect of dissolution on ground of (sect. 41), 103. FRAUDULENT CONVEYANCE of goodwill, 111. FRIENDLY SOCIETIES. See Restrictive Covenants. GAZETTE. See Advertisements. GENERAL EESTRAINT. See Restrictive Covenants. GOOD FAITH, ought to abound between partners, 80. GOODWILL, definition of, 108. is properly local, 108. sale of, for share of profits (sect. 2), 58. purchaser must endeavour to earn profits, 112, 113. seller postponed in bankruptcy (sect. 3), 60. effect of sale on right of vendor to carry on business, 111, 114. by trustee of bankrupt, 112. unsatisfactory nature of law regarding, 114 116. vendor of, may compete with purchaser, 111, 114, 115, 200. distinction between goodwill of a trade and that of a profession, 108, 109. professional goodwill not in general a partnership asset, 94, 105. apparently not an asset in bankruptcy, 111. may by contract have an ascertainable value, 110. may sometimes have to be accounted for, 111. need not be realised on dissolution, 94, 105, 110. expulsion of partner, 112. of appointments and offices, 94. restrictive covenant is part of, 131, 185. owner ought to be able to assign or bequeath, 119 123, 150, 154. GROSS RECEIPTS, should be taken as basis of value of practice, 2, 3. 234 INDEX. GUARANTEE, on transfer of practice, of receipts should not usually be given, 1617. of appointments should be given, 40. HOLDING Our, as partner (sect. 14), 64. after bankruptcy (sect. 38), 94. HOLIDAYS, 21, 22. HORSES AND CARRIAGES, whether they should be private or part- nership property, 9. HOUSE, agreements as to purchase or lease of, on transfer of prac- tice, 4143. ILLEGAL PARTNERSHIPS, dissolution on ground of (sect. 34), 88, 89. scheme to allow unqualified man to practise, 89. ILLEGALITY of terms in restrictive covenants. See Restrictive Covenants. ILLNESS, of partner when permanent, may be ground for dissolution (sect. 55), 90. provision in articles as to, 21 seq. of assistant permanent, ground for dismissal, 221. temporary, no ground for dismissal, 220. for withholding salary, 220. unless caused by assistant's own misconduct, 221. INCAPACITY OF PARTNER, permanent, a ground for dissolution (sect. 35), 89 eeq. clause in articles as to, 22, 23. And see Lunacy of Partner. INCOMING PARTNER, liability of (sect. 17), 65. See Introduction of New Partner. INDEX. 235 INDEMNITY, right of partner to, from firm (sect. 24), 75. where partnership dissolved on ground of fraud (sect. 41), 103. right of firm to, where loss occasioned by partner's negligence, 63. INFANT. See Restrictive Covenants. INJUNCTION. See Restrictive Covenants. INSANITY OF PARTNER, ground for dissolution (sect. 35), 90, 91. INSTALMENTS of purchase-money, as to forfeiting, 34, 35, 135, 136. INTRODUCTION OF NEW PARTNER, can only be by consent (sect. 24), 75 80. provision in articles as to, cannot be specifically enforced, 7679. new partner takes subject to any variation in articles, 71. INTRODUCTION OF PURCHASER OF PRACTICE, importance of, 37, 194. methods of, 37, 194. purchaser should be consulted as to, 37, 194. profits during period of, 38, 39. contracts as to, are legal, 194, 195. cannot be specifically enforced, 197 seq. length of, should be stipulated, 201 seq. what length desirable, 37. option to prolong or curtail period, 36, 37. remedy of purchaser where introducer concealed his ill- health, 95, 96, 195. where period of long, provision should be made for reduc- tion of purchase-money if introducer dies, 46. payment for practice should be made to depend on carrying out, 204. as to taking into account when part of premium is returned, 96 seq. JOINT STOCK, not essential to a partnership, 55. JUDGMENT CREDITOR of partner, may obtain charging order on his interest in partnership property (sect. 23), 73. JUST AND EQUITABLE, Court may grant dissolution when (sect. 35), 90. 236 INDEX. LEASE, one partner renewing, is trustee for the partnership, 85. LEGAL PROCEEDINGS AGAINST PATIENTS, vendor of practice should covenant not to take, for limited period, 45. LENDEB, for share of profits, postponed in bankruptcy (sect. 3), 60. LIQUIDATED DAMAGES. See Restrictive Covenants. Loss, distribution of (sects. 24 and 44), 75, 105. LUNACY OF PARTNER, a ground for dissolution (sect. 35), 89 seq. does not itself dissolve partnership, 91. Court requires evidence as to permanency of incapacity, 91. lunatic may be restrained from interfering in the partnership business, 91. of dormant partner, 91. MAJORITY OF PARTNERS, can decide differences in ordinary matters (sect. 24), 70 72, 75. cannot expel a partner (sect. 25), 80. variation of articles by, 70 72. MANAGEMENT, each partner may take part in (sect. 24), 75. assignee of share has no right to interfere in (sect. 31), 85. MISCONDUCT, of partner, when likely to prejudice partnership business, is a ground for dissolution (sect. 35), 90. from what time dissolution dates, 92, 93. degree of, no dissolution for a trifling fault, 92, 93. driving other partner to dissolve, 100. apportionment of premium with regard to, 96. of assistant. See Assistant. MISREPRESENTATION, effect of dissolution on ground of (sect. 41), 103. MUTUAL CONFIDENCE, destruction of, a reason for dissolution (sect. 35), 90 seq. partnership will not be dissolved for mere squabbles, 92. INDEX. 237 NEGLIGENCE, of partner, liability of partnership for (sect. 10), 62, 63. negligent partner must indemnify firm, 63. firm liable for assistant's negligence. 63. of assistant, principal liable for, 63. See Assistant. NEW PARTNER. See Introduction of New Partner. NOTICE, to determine engagement of assistant, 50, 215, 217. NOTICE or DISSOLUTION (sects. 32, 36, and 37), 86. need not be by deed (sect. 26), 82. right of any partner to advertise, 93. OFFICES. See Appointments. OLD CUSTOMERS, right to deal with, on sale of goodwill, 114, 115. effect of " render of customers," 116. OPTION, to purchase share of partner on sale of charged share being ordered (sect. 23), 73, 74. or redeem, 73, 74. to purchase share of partner on dissolution, 76 seq., 104. where exercised, no right to profits after dissolution (sect. 42), 104. provision in articles as to, is usually still exerciseable where partnership continued beyond agreed term, 83. unless something in articles inconsistent with such continuance, 83, 84. to purchase larger share in partnerships, 18 21. considerations as to, 18 21. provisions in articles as to, 18 21. how price should be fixed, 1821. to dissolve if partner's share charged for his separate debt (sect. 33), 86. to sell share to incoming partner, 19. difficulties as to, 76 seq. to purchase house of vendor of practice, 41. See Purchase; Restrictive Covenants. 238 INDEX. PARTNERS, agents for each other (sect. 5), 61. liable for obligations of firm (sect. 9), 62. negligent and wrongful acts of each other (sects. 1013), 6264. where one is liable for negligence, the others are also liable, 63. but partner occasioning damage by personal misconduct should alone bear the consequences, 63. liability where one holds himself out as partner (sect. 14), 64, 65. incoming partner not liable to creditors for antecedent debts (sect. 17), 65. outgoing partner does not cease to be liable, 65. mutual rights and duties of (sect. 24), 74. must not secretly buy from or sell to the partnership, 84. must not compete with firm (sect. 30), 84, 85. must account for private profits (sect. 29), 84, 85. amount of share of outgoing or deceased partner's share is a debt (sect. 43), 105. junior, conditions as to work of, in articles, 12. PARTNERSHIP, definition of (sect. 1), 55. form of articles, 6. not necessary that there should be any joint stock, 6. is a question of intention of the parties, 59. declaration negativing partnership is not conclusive, 59. rights of partners depend upon agreement between them (sect. 19), 66. may be varied by agreement, 66. how far each partner is agent of (sects. 5, 6, and 7), 61. liability of each partner (sect. 9), 62. liability of, for wrongful acts of separate partners (sect. 10), 62, 63. property of (sects. 2023), 72, 73. procedure against, for partner's separate judgment debt (sect. 23), 73, 74. interest of partners in (sect. 24), 74 seq. at will may be dissolved at any time (sect. 26), 82. but right to dissolve ought to be exercised in good faith where option to purchase has been reserved, 83. continuance after partnership has expired (sect. 27), 82 84. INDEX. 239 PARTNERSHIP continued, length of term life partnership advisable for medical men, 7, 8. considerations where power reserved to determine in the first year, 17. PENALTY, distinction between, and liquidated damages. See Re- strictive Covenants, POSTPONEMENT in bankruptcy of rights of creditor sharing profits (sect. 3), 60. PRACTICE, purchase of, means purchase of goodwill only, 32. that is, of introduction, 108, 203. purchase of, for share of profits, 112, 113. purchaser taking, with notice of a charge upon, 113. purchase of, where an introduction is stipulated for, cannot be specifically enforced, 201 seq, PRECEDENTS, of partnership articles, 6. of agreement for transfer of a practice, 31. of agreement with assistant, 48. PREMIUM, should be paid before commencement of partnership, 7. apportionment of (sect. 40), 95, 96. where partnership for a term is dissolved, an aliquot por- tion aUotted to each year, 95, 98, 100, 101. in case of bankruptcy, 96. in case of death when illness was concealed, 95. misconduct, 96. gross misconduct necessary to disentitle other part- ner, 96. should be asked for at trial of action, 96. remedy where partnership induced by fraud (sect. 41), 103, 104. a matter for arbitration under usual arbitration clause, 103. PROFITS, partner must account for, when derived from use of partnership property or con- nection (sect. 29), 84. when derived from competing business (sect. 30), 84, 85. 240 INDEX. PROFITS continued. creditor receiving share of, is postponed in bankruptcy (sect. 3), 60. where there is a charge on profits, person carrying on the business must endeavour to earn, 59, 112. PROPERTY, of partnership (sects. 2023, and 39), 71, 73, 94. See Partnership. PUBLIC POLICY. See Restrictive Covenants. PURCHASE, of further share in medical practice, 18. of outgoing or deceased partner's share, 19 21, 24 26. easy terms of payment should be given, 26. And see Option; Sale. QUARRELS, as to dissolution on account of, 92. BEGISTRATION, of practitioner necessary under Medical Acts before he can recover fees, 89, 207. necessary at the time the services were rendered, 211. must now be after examination in medicine, surgery, and mid- wifery, 207. BEMUNERATION, of assistant by share of profits, (sect. 2), 57. does not necessarily make him a partner, 57. gives him a right to call for accounts, 58. BENDER OF CUSTOMERS, vendor of goodwill must not solicit after, 116. EENEWAL OF LEASE by one partner enures for the benefit of the firm, 84. RESCISSION OF CONTRACT, of partnership for fraud (sects. 40 and 41), 95, 103. provision for, of purchase, where purchase-money not paid, 34, 35. BESIDENT PATIENTS, fees from, should not be included in estimating value of practice, 4. BESTRAINT OF PRACTICE. See Restrictive Covenants. INDEX. 241 KESTRICTIVE COVENANTS, Adequacy of Consideration, is a matter for the parties, not for the Court, 122, 149. Allotment, of districts, or named patients, quaere enforceable, 132, 133, 147, 178. Area of Restraint. See under Limits. Assignment, benefit of covenant passes with, the assignment of the goodwill of the practice, 131, 185. assignee of part of the business can enforce, 131, 167, 187. Assistant, should enter feto, 48. employment as, is sufficient consideration, 130, 145, 162, 175. covenant by, should not be so wide as covenant by vendor of a practice, 51. contract of service should be in writing, 48. it should be expressed whether covenant entered into by, is intended to last after employment is terminated, 48, 136, 171. it will usually be taken so to last, 173, 223. restrictive covenant may be construed to last, though a right reserved to terminate the agreement, 169, 174. wrongfully dismissed, is not absolved from a restrictive" covenant, 130. acting as, violates covenant not to set up as a surgeon, 129, 188. Bankrupt cannot be compelled to enter into, 112. Bankruptcy, enforcement by injunction after, 140. damages cannot be recovered after, 140. effect of proof in, for liquidated damages, 140. Bond, imposing penalty, implies a covenant, 124, 133, 162, 175, 191. Competition, agreements for avoiding, 132, 133, 147, 178. Consideration, adequacy of, not now inquired into by the Court, 122. formerly was matter for the Court, 122. there must be some consideration, 123, 150, 151. employing as assistant, or continuing existing employment, is sufficient, 130, 145, 162, 175. C. R 242 INDEX. RESTRICTIVE COVENANTS continued. Court, will not now inquire into adequacy of consideration, 122, H9. will not fix reasonable limits where no limits fixed by the parties, 124, 127. will, where possible, divide the reasonable from the un- reasonable portion of the covenant, 127, 144. discretion of, as to granting injunction, is subject to settled rules, 139, 141. Chancery Courts can now give full relief, 137. Damages, unliquidated, and injunction may be claimed, 139, 174. See under Liquidated Damages. Definite, covenant must be, or will not be enforceable, 124. but may be inferred from recitals in a bond, 124, 133. Dentists, limits of restraint for, held reasonable or unreason- able, 126, 147, 153. Dismissal, wrongful dismissal of assistant does not absolve him from the restraint, 130. Distances are measured as the crow flies, 126. Divisibility of, where restraint partly valid and partly unreasonable, 127, 184, 187. as to businesses, 128. as to patients, 128, 129, 186, 190. as to limits of space, 127, 128, 144, 153, 158. as to limits of time, 187. valid part not affected by illegality of other part, 127, 128, 155. Duration, restraint may be valid for life of covenantor, 123. though person to be protected die, 123. or cease to practise, 124. restraint will usually be construed to last after employment as assistant is terminated, 173, 185, 223. restraint may last though power reserved to terminate the contract generally, 168, 174. it should be expressed whether covenant is intended to endure after the rest of the agreement is terminated, 48, }36, 171. INDEX. 243 EESTRICTIVE COVENANTS continued. Election. See under Option. Employment. See under Assistant. Enforcement of, by suing for liquidated damages, 137, 138. injunction, 137, 138. Evidence, restrictive covenant must be evidenced by writing, 124. parol evidence may be given to prove what was the con- sideration, 129. recitals in bond imposing penalty are, 124, 133, 162, 175, 191. Friendly Societies, quaere, whether they can specifically enforce restrictive covenants against their medical officers, 131. General Restraint has always been contrary to public policy, 121, 151. Goodwill, benefit of restrictive covenant passes with the assign- ment of goodwill, 131, 184. House, covenant not to let to medical practitioner, 129. Illegality, restraint so wide as to be unreasonable will not be enforced, 121, 152. where reasonable portion can be separated from illegal portion, the reasonable portion is enforceable, 127, 153. where covenant is part of a scheme to enable an unqualified person to practise, 130, 179 seq. quaere as to divisibility, 184. Importance of, 116, 117. Infant, may bind himself by restrictive covenant if the whole contract is beneficial to him, 223. where employment is continued after he has attained his majority, 223. Infringement, by vendor of goodwill, no defence to action for purchase-money, 130, 143. Injunction, may be granted where covenant is not express but inferred from recitals, 124, 133, 162, 175. R2 244 INDFX. RESTRICTIVE COVENANTS continual. Inju nction continued. person whose right is infringed should elect between injunction and liquidated damages (if any), 138, 171, 173, 191. unliquidated damages and injunction maybe claimed, 139, 174. covenantor has not option of escaping in junction by paying liquidated damages, 139. discretion of Court in granting, 139, 141. governed by settled rules, 141. is a matter of right where covenant has been deliberately infringed, 141. interim in junction, 141, 180. costs, 142. churned after bankruptcy, 140. Life, covenant restraining covenantor for his whole life not unreasonable, 123, 149. is generally construed so to endure, 123, 161. although person protected may cease to practise, 124. Limits, must be reasonable, 124 seq. of space, 29. what have been held reasonable for medical practi- tioners, 126. in the country, 126, 145, 146. in London, 126, 145, 146. in the case of dentists, 126, 147. distances, how measured, 126. covenant reasonable for practitioner not to reside within limits, 126, 129, 159, 165. quaere as to allotting districts so as to avoid competi- tion, 132, 133, 147, 178. of time, general restraint bad for however short a period, 124, 125, 151. in the case of assistant, 51. locum tenens, 51. lifelong limit held reasonable, 123, 124. Liquidated Damages, nature of, 134, 158, 160, 192. jury or Court must assess full amount, 158, 160. INDEX. 215 KESTRICTIVE COVENANTS continued. Liquidated Damages continued. distinction between, and penalty is a matter of substance, not of form only, 134, 163, 164, 167. after recovery of, person restrained may practise, 137, 138, 164, 165. Locum Tenens, should not generally be required to enter into, 51. Necessity for, in dealing with professional goodwill, 116. Old Law with regard to, 117. Option, person protected has, whether he will sue for injunction or liquidated damages (where reserved), 136, 137, 138, 171, 173, 191. covenantor has not, of paying the liquidated damages, and acquiring freedom to practise, 139, 191. Partners, either partner may enforce restrictive covenants entered into to protect partnership business, 131, 188. one partner cannot release without the sanction of his co -partner, 131, 188. Patients, divisibility of covenant as to, 128, 186, 190. covenant enforced as to denned patients only, 128, 186, 190. practitioner restrained may not attend, though they come unsolicited, 129, 190. Penalty. See under Liquidated Damages. Practising, attending patients who come without solicitation is a breach, 129, 190. as assistant, is a breach, 130, 188. no breach if at request of person protected, 160. Public Policy, 117 seq. prohibits general restraints of trade, 121, 122, 148. allows partial restraints, 122, 148. varies from time to time, 120. cannot be stereotyped by our tribunals, 121. holds that owner of goodwill ought to be able to assign or bequeath it, 119123, 150. to restrain himself from competing with a view to selling in the best market, 123, 154, 157. 246 INDEX. RESTRICTIVE COVENANTS continued. Radius. See under Limits. Reasonableness, covenant if too wide is not reasonable, 124, 152, 155. covenant must be reasonably necessary for protection of covenantee, 124 seq., 152, 169, 187. sufficient if reasonable at time of making, 124, 156. reasonableness not affected by subsequent circum- stances, 124, 156. depends on the nature of the business to be protected, 125. it is reasonable that covenant should endure during the life of the covenantor, 123. And see under Divisibility; Limits. Remedy, covenantee must elect between injunction and liquidated damages, 136, 171, 173. unliquidated damages and injunction may be claimed, 139, 173. Requisites for Validity of, 123. covenant should be evidenced in writing, 124. Residence, covenant not to reside within certain limits held reasonable, 126, 129, 165. Severance. See under Divisibility. Soliciting. See under Practising. Unqualified Practitioner. See under Illegality. Validity. See under Reasonableness. Writing, restrictive covenants should be evidenced by, 124. Wrongful Dismissal of assistant does not absolve him from the restraint, 130. SALARY, of assistant varying with profits does not necessarily create partnership (sect. 2), 57. derived from appointments, should belong to the partnership, 12. See Assistant. SALE, of goodwill. See Goodwill. valuation of appointments. See Appointments. INDEX. 247 SALE continued. of share of practice, powers reserved in articles, 18, 19 21, 27. within what time it should be exerciseable, 18, 19 21, 27. subject to a charging order (sect. 23), 73, 74. if directed, the other partners may purchase, 73, 74. contract for, where introduction to patients is part of the agree- ment, cannot be specifically enforced, 201 seq. SECEET PROFIT must be accounted for (sects. 29, 30), 84, 85. SECRETS, assistant divulging principal's, may be dismissed, 218. SEPARATE DEBTS of partner, procedure against partnership pro- perty (sect. 23), 73, 74. SERVANT. See Assistant. SHARES IN PARTNERSHIP, presumed to be equal (sect. 24), 74, 75. mode of making liable for separate debts (sect. 23), 73, 74. sale of. See Sale and Transfer. outgoing or deceased partner's share a debt from continuing partners (sect. 43), 105. See Articles of Partnership. valuation of. See Valuation. SOLICITING old customers. See Goodwill and Restrictive Covenants. SPECIFIC PERFORMANCE, cannot be decreed of contract for introduction, 201 seq. nor of contract to become partners, 77. STATUTES, Magna Charta, 118. 3 Hen. 8, c. 11... 180, 183, 184, 208. 34 & 35 Hen. 8, c. 8... 209. 29 Car. 2, c. 3 (Statute of Frauds), 124. 55 Geo. 3, c. 194 (Apothecaries Act, 1815), 89, 180, 181, 183, 184, 210, 211. 21 & 22 Viet. c. 90 (Medical Act, 1858), 89, 180, 207, 208, 211. 25 & 26 Viet. c. 42 (Chancery Eegulation (Eolt's) Act, 1862), 137, 172. 28 & 29 Viet. c. 86 (Bovill's Act), 58, 60. Pharmacy Act, 1868... 213. Births and Deaths Eegistration Act, 1874... 182. Bankruptcy Act, 1883... 86 88, 140. Medical Act, 1886... 207. Partnership Act, 1890... 54 seq, 248 INDEX. STATUTE OF FRAUDS, restrictive covenant muttt be evidenced by writing, 124. SUBQICAL INSTRUMENTS usually private, not partnership, property, 10. SURVIVING PARTNERS, as to right to goodwill, 94, 105, 110. are the proper persons to get in partnership debts, 88. are debtors to late partner for value of his share (sect. 43), 105. agreements in articles as to, 94, 105. should be bound to buy share of deceased partner, 24. easy terms should be reserved, 26. remedies of representatives of deceased, where option not exercised, 76 seq. TERM, continuation of partnership after expiration of (sect. 27), 82. See Continuation of Partnership. TRADE, distinction between goodwill of, and of profession, 108, 109. See Goodwill. TRANSFER OF PRACTICE, precedent of, 31. TRANSFER OF SHARE, rights of transferee (sect. 31), 85, 86. agreement in articles as to, 19, 24, 25, 27. other partners must consent if transferee is to become partner (sect. 24), 75. TRUSTEE IN BANKRUPTCY of one partner will be restrained from collecting debts of the partnership, 88. UNLAWFUL PARTNERSHIPS. See Illegal Partnerships. UNQUALIFIED I*RACTITIONERS, agreement to assist to practise, illegal, 89, 179. See Registration. UNREGISTERED PRACTITIONERS, , cannot recover fees, 89, 208, 211. striking off the register, 89. USAGE OF PARTNERS. See Variation of Partnership Rights and Duties. USAGE OF TRADE as to what is reasonable notice to determine en- gagement of assistant, 216, 217. INDEX. 249 VALUATION, agreements in articles as to, to take share at, 24, 25, 27. purchase further share at, 18. of appointments, 94. of goodwill, 109 seq. where partnership has been prolonged beyond agreed term, 83. VALUE OF PRACTICES, 1 5. based usually on gross, not net annual receipts, 2. reasons for such estimation, 3. usually taken to include goodwill only, 4, 32. VARIATION OF PARTNERSHIP EIGHTS AND DUTIES, by agreement (sect. 19), 66. may be inferred from course of dealing (sect. 19), 66 72. as to time for taking accounts, 66 69. valuation of shares of partners, 67 72. method of valuing property of the partnership, 69, 70. a usage may be waived pro hac vice or abandoned in toto, 71. there must be continued usage to establish a variation, 70, 71. special clauses never acted on may sometimes be disregarded, 70. where practice stricter than provided for by the articles, majority may decide as to its continuance, 70 72. VENDOR of practice should agree not to sue patients for limited period, 45. WELL, partnership continued after expiration of term is partnership at will (sect. 27), 82, 83. WORKING EXPENSES, of practice, 5, 10. difficult to sever from personal expenses, 3. WRONGFUL DISMISSAL. 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Walker's Treatise on Banking Law. Second Edition. By J. D. WALKER, Esq., K.C. Demy Svo. 18S5. 15*. BANKRUPTCY. Lawrance's Precedents of Deeds of Arrange- ment between Debtors and their Creditors; including Forms, with Introductory Chapters, also the Deeds of Arrangement Acts, 1887 and 1890, with Notes. Fifth Edition. By ABTHTTB LAWEENCE, Esq., Barrister-at-Law. Demy Svo. 1900. " 7s. 6d. " Concise, practical, and reliable." Law Times. Williams' Law and Practice in Bankruptcy. Comprising- the Bankruptcy Acts, 1883 to 1890, the Bankruptcy Rules and Forms, &c. By the Right Hon. Sir ROLAND L. VAUGHAN WILLIAMS, a Lord Justice of Appeal. Seventh Edition. By EDWABD WM. HANSELL, Esq., Barrister-at-Law. Roy. Svo. 1898. 11. 10*. " The leading text-book on bankruptcy." Law Journal. BILLS OF EXCHANGE. Chalmers' Digest of the Law of Bills of Exchange, Promissory Notes, Cheques and Negotiable Securities. Sixth Edition. By M. D. CHALMEES, C. S. I., Draughtsman of the Bills of Exchange Act. Demy Svo. 1903. 17. " The leading book on bills of exchange." Law Journal. " An indispensable guide to the Bills of Exchange Act." Solicitors' Journal. "Each section having appended to it illustrations in the nature of short statements of decided cases .... prepared with that skilful conciseness of which the learned Judge is a master." Law Times. BILLS OF LADING. Pollock's Bill of Lading Exceptions. By HENRY E. POLLOCK. Second Edition. Demy Svo. 1896. 10*. 6d. BUILDING SOCIETIES. Wurtzburg on Building Societies. The Law relating to Building Societies, with Appendices containing the Statutes, Regulations, Act of Sederunt, Forms of Annual Account and Statement , and Precedents of Rules and Assurances . Fourth Edit . By E. A. WURTZBURG, Esq., Barrister-at-Law. Demy Svo. 1902. 16*. " A carefully arranged and carefully 'written book." Law Times. "We are glad to see another edition of Mr. Wurtzburg's treatise on the law of building societies. It has recommended itself in practice as a useful work on a subject of frequent importance, and it is convenient to have it brought up to date." Solicitors' Journal. CARRIERS. Carver's Treatise on the Law relating to the Car- riage of Goods by Sea. Third Edition. By THOMAS GILBERT CAEVEB, Esq., K.C. Royal Svo. 1900. 11. 16*. " A recognized authority." Solicitors' Journal. " Mr. Carver's work stands in the iirst rank of text-books written by living authors." Law Quarterly Review, " The law of common carriers is nowhere better explained." Law Times. Macnamara's Digest of the Law of Carriers of Goods and Pas- sengers by Land and Internal Navigation. By WALTEB HENEY MACNAMAEA, Esq., Barrister-at-Law. Royal 8vo. 1888. 11. 8*. CHANCERY, and Vide "Equity." Daniell's Chancery Practice. The Practice of the Chancery Division of the High Court of Justice and on appeal therefrom. Seventh Edition, with references to the companion volrane of Forms, and to the Sixth Edition of Seton's Forms of Judgments and Orders. By CECIL C. M. DALE, CHAELES W. GREENWOOD, SYDNEY E. WILLIAMS, Esqrs., Barristers-at-Law, and FEANCIS A. STEINOEE, Esq., of the Central Office. 2 vols. Royal Svo. 1901. 61. 5*. " An accurate and exhaustive store of the information required for con- ducting proceedings in the Chancery Division." Solicitors 1 Journal. " With Daniell the practitioner is ' personally conducted,' and there are very few lawyers who will not be grateful for such guidance, carried out as it is by the collaboration of the most competent hands." JMW Journal. * * All standard Law Works are kept in Stock, in fatr enlf and other bindings. A 2 STEVENS AND SONS, LIMITED, CHANCE R Y continue 3. Daniell's Forms and Precedents of Proceedings in the Chancery Division of the High Court of Justice and on Appeal there- from. Fifth Edition, with xuimnaries of the Rules of the Supreme Court: Practical Notes; and references to the Seventh Edition of Daniell's Chancery Practice, and to the Sixth Edition of Seton's Forms of Judgments and Orders. By CHARLES BUENBY, Esq., a Master of the Supreme Court. Royal 8vo. 1901. 21. 10*. " The book is too well-established in professional favour to stand in need of commendation, but its reputation in likely to be enhanced by the present edition." Solicitors' Journal. CHILDREN. Hall's Law Relating to Children. By W. CLAUSE HALL, Esq., Barrister-at-Law. Demy 8vo. 1894. 4*. CHURCH LAW. Whitehead's Church Law. Being a Concise Dictionary of Statutes, Canons, Regulations, and Decided Cases affecting the Clergy and Laity. Second Edition. By BENJAMIN WHiTKifKA.D, Esq., Barrister-at-Law. Demy 8vo. 1899. 10#. 6rf. "A perfect mine of learning on all topics ecclesiastical." Daily Telegraph. The Statutes relating to Church and Clergy, with Preface and Index. By BENJAMIN WHTTEHBAD, Esq., Barrister-at-Law. Royal 8vo. 1894. 6*. CIVIL ENGINEERS. Macassey and Strahan's Law relating to Civil Engineers, Architects and Contractors. With a Chapter on Arbitrations. Second Edition. By L. LIVINGSTON MACASSBT and J. A. Sir.iiur, Esqrs., Barristers-at-Law. Demy 8vo. 1897. 12*. 6rf. COAL. Cockburn's Law of Coal, Coal Mining, and the Coal Trade, and of the Holding, Working, and Trading with Minerals generally. By JOHN HEXEV COCKBUBN, Solicitor. Royal 8vo. 1902. II. \Gt. "A book in which the whole law of mines and minerals is discussed fully and with considerable ability." Lam Journal. " The work contains features not to be found in any other single book on the subject, and abounds with practical hints which make it an invaluable text-bo jk of the law upon this particular subject." The Sovereign. COLLISIONS. Marsden's Treatise on the Law of Collisions at Sea. Fourth Edition. By REGINALD G. MABSDBN, Esq., Barrister- at-Law. Demy 8vo. 1897. II. 8*. COMMISSION. Hart. Tide "Auctioneers." COMMON LAW. A. B. C. (The) Guide to the Practice of the Supreme Court, 1904, with Diarv for Appointments, &c. By FEAXCIS A. STBINGEB, Esq., of the Central Office of the Supreme Court. Roy. 12mo. JYV/, 5. Chitty 3 Forms, Vide " Forms." Elliott's Outlines of Common Law. By MAETKJ ELLIOTT, Esq., Barrister-at-Law. Demy 8vo. 1898. 10*. Gd. Pollock and Wright's Possession in the Common Law. Parts I. and II. by Sir F. POLLOCK, Bart., Barrister-at-Law. Part III. by R. S. WEIGHT, Esq., Barrister-at-Law. 8vo. 1888. 8a. 6d. Shirley. Vide " Leading Cases." Smith's Manual of Common Law. For Practitioners and Students. Comprising the Fundamental Principles, with useful Practical Rules and Decisions. Eleventh Edition. By C. SPUKLING, Esq., Barrister- at-Law. Demy 8vo. 1898. 15*. COMPANY LAW. Goirand. T'irfr "French Law." Hamilton's Manual of Company Law. By W. F. HAMILTON, Esq., LL.D. Lond., K.C. Second Edition. By the Author, assisted by PEECT TDJDAL-ROBEBTSOX, Esq., B.A., Barrister-at-Law. Demy 8vo. 1901. II. IK. A sound and eminently useful manual of eomoany law." Solicitors' Journal. "Mr. Hamilton has resolved the Companies Acts into a number of proposi- tions which make a sort of codification of the law, the notes are very full, and all cases on the subject seem to be cited." I^iw Magazine. %* Ml ttandard Law Works are ktpt in Stock, in law calf and other binding*. 119 & 120, CHANCERY LANE, LONDON, W.C. COMPANY LAW confined. Palmer's Company Law.' A Practical Handbook for Lawyers and Business Men. With an Appendix containing the Companies Acts, 1862 to 1900, and Rules. Fourth Edition. By FEANCIS BEAUFOET PALMER, Esq., Barrister-at-Law. Eoyal 8vo. 1902. 12s. 6rf. " Palmer's ' Company Law ' is one of the most useful and convenient text- books on the practitioner's bookshelf." Law Times. " The work is a marvel for clearness, fulness, and accuracy, nothing could be better." Law Notes. " Of especial use to students and business men who need a clear exposition by a master hand." Law Journal. " The subject is dealt with in a clear and comprehensive manner, and in such a way as to be intelligible not only to lawyers but to others to whom a knowledge of Company Law may be essential." Law Students' Journal. " All the principal topics of company ore dealt with in a substantial manner, and the whole of the Statute Law an indispensable adjunct is collected in an appendix. Perhaps what practising lawyers and business men will value most is the precious quality of practicality." Law Quarterly Review. " Popular in style, also accurate, with sufficient references to authorities to make the book useful to the practitioner." The Times. Palmer's Companies Act, T900, with Explanatory Notes, and Appendix containing Prescribed and other Forms, top-ether with Addenda to "Company Precedents." Second Edition. By FEA.XCIS BEAUFOET PALMES, Esq., Barrister-at-LaAv. Royal 8 vo. 1!)01. 7s. Gd. " It is essentially a book that all interested in companies or company law should procure." Law Times. Palmer's Company Precedents. For use in relation to Companies subject to the Companies Acts. Part I. GENERAL FOBMS. Arranged as follows: Promoters, Prospectuses, Underwriting, Agreements, Memoranda and Articles of Association, Private Companies, Employes' Benefits, Resolutions, Notices, Certificates, Powers of Attorney, Banking and Advance Securities, Petitions, Writs, Pleadings, Judgments and Orders, Reconstruction, Amalgamation, Special Acts. With Copious Notes and an Appendix containing the Acts and Rules. Eighth Edition. By FRANCIS BEAUFOET PALMEE, Esq., Barrister-at-Law, assisted by the Hon. CHABLES MACNAOHTEN, K.C., and FKANK EVANS, Esq., Banister-at-Law. Royal 8vo. 1902. II. 16s. " Despite his many competitors, Mr. Palmer ' Holds solely sovereign away and masterdom,' and he does so by reason of his thoroughness, his practical good sense, and his familiarity with the business as well as the legal side of his subject." Law Quarterly Review. "Mr. Palmer's works on Company Law are all beyond criticism. He knows more of the subject than, perhaps, any other member of the legal profession. His books have for many practical purposes been treated as being, in fact, the very law itself. It is a subject for congratulation of all concerned that this book has been brought up to date, and that the important statute 63 & 64 Viet. c. 48 is now considered throughout the text." Law Magazine. " No company lawyer can afford to be without it." Law Journal. Part II. WINDING-UP FORMS AND PRACTICE. Arranged as follows: Compulsory Winding- Up, Voluntary Winding-Up.Wind- ing-Up under Supervision, Arrangements and Compromises, with Copious Notes, and an Appendix of Acts and Rules. Eighth Edition. By FRANCIS BEAUFORT PALMES, assisted by FEANK EVANS, Esqrs., Barristers-at-Law. Royal 8vo. 1900. II. 12*. " Palmer's ' Company Precedents' is the book par excellence for practitioners. There is nothing we can think of which should be within the covers which wo do not find." Law Journal. Part III. DEBENTURES AND DEBENTURE STOCK, including Debentures, Trust Deeds, Stock Certificates, Resolutions, Prospectuses, Writs, Pleadings, Judgments, Orders, Receiverships, Notices, Mis- cellaneous. With Copious Notes. Ninth Edition. By FRANCIS BEAU- FOET PALMES, Esq., Barrister-at-Law. Royal 8vo. 1903. 25s. " The result of much careful study Simply invaluable to debenture- holders and to the legal advisers of such investors." Financial News. " Embraces practically the whole law relating to debentures and debenture stock. . . . Must take front rank among the works on the subject." Law Times. *-* All standard Laiv Works are kept in Stock, in law calf and other bindings. STEVENS AND SONS, LIMITED, COMPANY LAW -co,, tinned. Palmer's Private Companies and Syndicates, their Formation and Advantages ; being a Concise Popular Statement of the Mode of Con- verting a Business into a Private Company, and of establishing and working Private Companies and Syndicates for Miscellaneous Pur- poses. Eighteenth Edition. By F. B. PAUCEB, Es^., Barrister- at - Law. 12mo. 1903. Xet, Is. Palmer's Shareholders, Directors, and Voluntary Liquidators' Legal Companion. A Manual of K\ cry-day L:iw ttnd Practice for Proiuni t -rs, >h:i: -holilrrs, Directors, Secretaries, Creditors, Solicitors, and Voluntary Liquidators of Companies under the Companies Acts, 18C2 to 1900, with Appendix of useful Forms. Twnty-ficond Edit. By F. B. PALMEB, Esq., Barrister-at-Law. 12mo. 19(KJ. Net, 2.6rf. COMPENSATION. Cripps' Treatise on the Principles of the Law of Compensation. Fourth Edition. By C. A. CKIPPS, Esq., K.C. Royal 8vo. 1900. II. 5*. " Mr. OrijiTw' book is recognized OR one of the best. . . . There are few men who*: pructirul knowledge of the subject exceeds that of the learned author." Law Quarterly Jl> COMPOSITION DEEDS. Lawrance. Tfo "Bankruptcy." CONDITIONS OF SALE. Farrer. Vide "Vendors & Purchasers." Webster. Vide "Vendors and Purchasers." CONFLICT OF LAWS.-Dicey's Digest of the Law of England with reference to the Conflict of Laws. By A. V. DICEY. Esq., K.C., B.C.L. With Notes of American Cases, by Professor MOOBE. Royal 8vo. 1896. II. 10*. CONSTITUTION. Anson's Law and Custom of the Constitution. By Sir WILLIAM R. Ausoy, Bart., Barrister-at-Law. Demy 8vo. Parti. Parliament. Third Edition. 1897. 12*. Gd. Part II. The Crown. Second Edition. 1896. 14*. CONTRACT OF SALE. Blackburn Vide "Sales." Movie's Contract of Sale in the Civil Law. By J. B. MOYLB, Esq., Barris.ter-at-Law. 8vo. 1892. 10*. 6d. CONTRACTS. Addison on Contracts. A Treatise on the Law of Contracts. Tenth Edition. By A. P. PEBCEVAL KEEP and WILLIAM E. GORDON, Esqrs., Barristers-at-Law. Royal 8vo. 1903. 11. 2*. "Essentially the practitioner's text-book." Lain Journal. " Among all the works on Contracts, there is none more useful to the practi- tioner than Addison." Law Times. Anson's Principles of the English Law of Contract. By Sir W. R. ANSOS, Bart., Barrister-at-Law. Tenth Edit. 1903. 10*. 6d. Fry. Vide "Specific Performance." Leake's Law of Contracts. Principles of the Law of Contracts. By the late S. MABTIN LEAKE. Fourth Edition. By A. E. RANDALL, Esq., Barrister-at-Law. Royal 8vo. 1902. olia. " The hiirh standard attained in the former issues has been well sustained, and tho work carefully revised and brought well up to d'lte." Law Time*. "A full and reliable piiide to the principles of the English Law of Contract .... this edition will fully maintain tho reputation which the book bus made for itself." f.aw Jnurnn . " Admirably suited t<> serve the purpose of the practitioner .... the work is complete, accurate, and easy of reference." Solicitors Journal. Pollock's Principles of Contract. A Treatise on the General Principles concerning the Validity of Agreements in the Law of England. Seventh Edition. By Sir FREDERICK POLLOCK, Bart., Barrister-at-Law, Author of "The Law of Torts," "Digest of the Law of Partnership," &c. Demy 8vo. 1902. 11. Ss. "A work whioh, in our opinion, show* (rreat ability, a disrerain-t tiv:iti"es on the law of fartoricn." Late Journal. " l'i. I'.-uril with an rviili-nt iiiti-ntiini of viyuij,' nil there 18 to be said on the legal aspect of th<- >ui.j.i-t. . . . Destined tu take its place as the book on the Acts." Saturday 1;. FARM, LAW OF. Dixon's Law of the Farm: including the Cases and Statutes relating to the subject ; and the Agricultural Customs of England and Wales. Fifth Edition. By AUBBET J. SPEMCHB, Esq., Barrister-at-Law. Demy 8vo. 1892. II. 6*. " A complete modern compendium on agricultural matters." Law Tints. FIXTURES. Amos and Ferard on the Law of Fixtures and other Property partaking both of a Real and Personal Nature. Third Edition. By C. A. FERAED and W. ROWLAND ROBKBTS, Esqrs., Bar- risters-at-Law. Demy 8vo. 1883. 18*. FORMS. Chitty's Forms of Civil Proceedings in the King's Bench Division of the High Court of Justice, and on Appeal therefrom to the Court of Appeal and the House of Lords. Thirteenth Edition. By T. W. CHTTTY, Esq., a Master of the Supreme Court, HEHBEBT CHITTY. Esq.. Barrister-at-Law, and P. E. VIZABD, Esq., of the Central Office. Royal 8vo. 1902. II. 16*. " The book is accurate, reliable and exhaustive." Solicitor*' Journal. "The forma are practically exhaus-tive, and the rotes very pood, so that thia edition 'will be invaluable to practitioners whose work is of a litigious kind.'* Law Journal. DanielPs Forms and Precedents of Proceedings in the Chan- cery Division of the High Court of Justice and on Appeal therefrom. Fifth Edition, with summaries of the Rules of the Supreme Court ; Practical Notes ; and references to the Seventh Edition of Daniell's Chancery Practice. By CHARLES BUBNKY, B.A., a Master of the Supreme Court. Royal 8vo. 1901. 21. 10s. " The standard work on Chancery Procedure." Law Quarterly Review. Seton. Vide "Equity." FRENCH LAW. Cachard's French Civil Code. By HKNBY CACHABD, B.A., Counsellor-at-Law of the New York Bar, Licencie en Droit de la Faculte de Paris. Demy 8vo. 1895. II. Goirand's Treatise upon French Commercial Law and the Practice of all the Courts. With a Dictionary of French Judicial Terms. Second Edition. By LEOPOLD GOIBAND, Licencie en Droit. Demy 8vo. 1898. II. Goirand's Treatise upon the French Law relating to English Companies carrying on Business in France. By LEOPOLD GOJBAND. French Solicitor. Crown 8vo. 1902. Net, 2s. 6d. Sewell's Outline of French Law as affecting British Subjects. By J. T. B. SEWELL, LL.D., Solicitor. Demy 8vo. 1897. 10*. 6d. GAMBIA. Ordinances of the Colony of the Gambia. With Index. 2 Vols. Folio. 1900. Xet, 3F. GAME LAWS. Warry's Game Laws of England. With an Appendix of the Statutes relating to Game. By G. TAYLOB WABBT, Esq., Barrister-at-Law. Royal 12ino. 1896. 10*. 6d. GOLD COAST. Ordinances of the Gold Coast Colony and the Rules and Orders thereunder in force 31 March, 1903. 2 vols. Royal 8vo. 1903. GOODWILL. Allan's Law relating to Goodwill. By CHABLES E. ALLAN,M.A., LL.B.. Esq., Barrister-at-Law. DemySvo. 1889. 7t.6d. Sebastian. Vide "Trade Marks." HOUSE TAX. Ellis' Guide to the House Tax Acts, for the use of the Payer of Inhabited House Duty in England. ByABnruB M. V.T.T.TH, LL.B. (Lond.), Solicitor. Royal 12mo. 1885. 6*. " Accurate, complete and very clearly expressed." Solicitor? Journal. a AH standard Lav: Works are kept in Stock, in laic calf and other bindingt. 119 & 120, CHANCERY LANE, LONDON, W.C. 15 HUSBAND AND WIFE. Lush's Law of Husband and Wife, within the jurisdiction of the Queen's Bench and Chancery Divisions. -ByC. MONTAGUE LUSH, Esq., Barrister-at-Law. Second Edition. By the Author and "W. H. GELFFITH, Esq., Barrister-at- Law. Demy 8vo. 1896. II. 5s. "To the practising lawyer the work will be of the utmost importance." Law Times. " This book will certainly be consulted when difficulties arise relative to the position of married women." Law Journal. INCOME TAX. Ellis' Guide to the Income Tax Acts. For the use of the English Income Tax Payer. Third Edition. By AETHUB M. ELLIS, LL.B. (Lond.), Solicitor. Royal 12mo. 1893. 7*. 6d. Robinson's Law relating to Income Tax; with the Statutes, Forms, and Decided Cases in the Courts of England, Scotland, and Ireland. By AETHTJB ROBINSON, Esq., Barrister-at-Law. Royal 8vo. 1895. II. Is. "The standard work on a complicated and difficult subject." Law Journal. INDIA. llbert's Government of India. Being a Digest of the Statute Lawrelatingthereto, with Historical Introduction and Illustrative Do- cuments. By Sir COUETENAY ILBEET, K.C.S.I. DemySvo. 1898. 11. Is. INLAND REVENUE. Highmore's Summary Proceedings in Inland Revenue Cases in England and Wales. Including Appeals to Quarter Sessions and by Special Case, and Proceedings by Collector's Warrants for Recovery of Duties of Excise and Taxes. Third Edition. By N. J. HIGHMOEE, Esq., Barrister-at-Law, Assistant Solicitor of Inland Revenue. Roy. 12mo. 1901. 7*. 6d. Highmore's Inland Revenue Regulation Act, 1890, as amended by the Public Accounts and Charges Act, 1891, and the Finance Act, 1896, with other Acts ; with Notes, Table of Cases, &c. By NATHANIEL J. HIGHMOEE, Esq., Barrister-at-Law, Assistant Solicitor of Inland Revenue. Demy 8vo. 1896. 7s. 6d. INSURANCE. Arnouldonthe Law of Marine Insurance. Seventh Edition. By EDWAED Louis DE HAET and RALPH ILIFF SIMEY, Esqrs., Barristers-at-Law. 2 vols. Royal 8vo. 1901. SI. 3s. "The authors have availed themselves of the advice and assistance of men of practical experience in marine insurance, so that the book may be relied on as accurate from a business as well as from a legal point of view. The book can best be described by the one word ' excellent.' " Law Journal. Tyser's Law relating to Losses under a Policy of Marine Insur- ance. By CKABT.KS ROBEET TYSEB, Esq., Barrister-at-Law. Demy 8vo. 1894. 10*. 6d. " A clear, correct, full, and yet concise statement of the law." Law Times. INTERNATIONAL LAW. Baker's First Steps in International Law. By Sir SHEESTON BAKEE, Bart., Barrister-at-Law. Demy 8vo. 1899. 12*. Dicey. Vide " Conflict of Laws." Hall's International Law. FourthEdit. DemySvo. 1895. U 2s. 6d. Hall's Treatise on the Foreign Powers and Jurisdiction of the British Crown. By W. E. HALL, Esq., Barrister-at-Law. Demy 8vo. 1894. 10*. 6d. Holland's Studies in International Law. By THOMAS EESKINB HOLLAND, D.C.L., Barrister-at-.Law. Demy 8vo. 1898. 10*. 6d. Kent's Commentary on International Law. Edited by J. T. ABDY, LL.D. Second Edition. Crown 8vo. 1878. 10*. 6d. Nelson's Private International Law. By HOEACB NELSON, Esq., Barrister-at-Law. Roy. 8vo. 1889. 11. Is. Rattigan's Private International Law. By Sir WILLIAM HENEY RATTIGAN, LL.D., K.C., Vice -Chancellor of the University of the Punjab. Demy 8vo. 1895. 10*. 6rf. " Written with admirable clearness." Law Journal. Walker's Manual of Public International Law. ByT. A. WALKER, M.A., LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 9, *J* AH standard Law Works are kept in Stock, in law calf and other bindings. 16 STEVENS AND SONS, LIMITED, INTERNATIONAL LAW continued. Walker's History of the Law of Nations. Vol. I., from the Earliest Times to the Peace of Westphalia, 1648. By T. A. WALKER, M.A., LL.D., Esq., Barrister-at-Law. Demy 8vo. 1899. Xet, 10*. Westlake's International Law. Chapters on the Principles of Inter- national Law. ByJ. WESTLAKE, K.C., LL.D. DemySvo. 1894. 10. Wheaton's Elements of International Law ; "Fourth English Edition. Edited with Notes and Appendix of Statutes and Treaties. By J. B. ATLAY, Esq., Barrister-at-Law. Royal 8vo. (In preparation.) " Wheaton stands too high for criticism." Law Times. INTERPLEADER. Maclennan's Law of Interpleader, as admin- istered by the English, Irish, American, Canadian, and Australian Courts. XVith an Appendix of Statutes. By RODKRICK JAMES MAC- LENNAN, Esq., Barrister-at-Law, Toronto. Demy 8vo. 1901. II. 5. INVESTIGATION OF TITLE. Jackson and Gosset's Investiga- tion of Title. Being a Practical Treatise and Alphabetical Digest of the Law connected with the Title to Land, with Precedents of Requisitions. Second Edition. By W. HOWLAJJD JACKSON and THOBOLD GOSSET, Barristers- at-Law. Demy 8vo. 1899. 12. 6d. " The new edition contains the following additional subjects namely, boun- daries, compromise, corporations, glebe lands, parcels, quit-rents and recitals ; and the chance* effected by the statute law of 1899 are noticed in their proper places. . . . Jackson and Gosset's book is well worth havinsr." Law Time*. "Will be of real help to the busy conveyancer." Law Xntti. * See " Conveyancing" (p. 7), for companion volume, " Precedents of Purchase and Mortgage Deeds," by the same Authors. JUDGMENTS AND ORDERS.-Seton. H Notes. Robbins' Treatise on the Law of Mortgages, Pledges and Hypothecations. By L. G. GOBDON ROBBINS, Assisted oy F. T. MAW, Esqrs., Barristers-at-Law. Founded on " Coote's Law of Mortgage." 2 vols. Royal 8vo. 1897. 3/. " It is not a patched-up edition of an old work ; it is a new book, containing of the old what is good and is still law, with the advantage of the work of a mortem editor." Law Journal. * The practising lawyer will find in detail everything that he can possibly want." SoUeUonf Journal. " A complete treatise on the law of mortgages." Law Quarterly Review. MOTOR CARS. Bonner's Law of Motor Cars, Hackney and other Carriages. An Epitome of the Law, Statutes, and Regulations. By G. A. BONNEB, Esq., Barrister-at-Law. Demy 8vo. 1897. Is. 6d. "The book-is full of useful information, and will undoubtedly prove of service to those who require advice on this subject." Law Times. MUNICIPAL CORPORATIONS. Bazalgette and Humphreys. Vide " Local and Municipal Government. ' NAVY. Manual of Naval Law and Court Martial Procedure; in which is embodied Thring's Criminal Law of the Navy, together with the Naval Discipline Act and an Appendix of Practical Forms. By J. E. R. STEPHENS, Esq., Barrister-at-Law, C. E. GIFFOBD, Esq., C.B., Fleet Paymaster, Royal Navy, and F. HABBISON SMITH, Esq., Staff Paymaster, Royal Navy. Demy 8vo. 1901. 15. ' Well written, excellently arranged, and fully comprehensive." Low Journal. " Well up to date .... May be thoroughly relied upon." Law Timtt. NEGLIGENCE. Smith's Treatise on the Law of Negligence. Second Edition. By HOBACB SMITH, Esq. 8vo. 1884. 12*. 6d. * 4 * All standard Law Works are kept in Stock, in late calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 21 NISI PR I US, Roscoe's Digest of the Law of Evidence on the Trial of Actions at Nisi Prius. Seventeenth Edition. ByMAUEicB POWELL, Esq., Barrister-at-Law. 2 vols. Demy 8vo. 1900. 21. 2s. " Continues to be a vast and closely packed storehouse of information on practice at Nisi Prius." Law Journal. " Almost invaluable to a Nisi Prius practitioner. . . . We have nothing but praise for the new edition." Law Quarterly fieview. NOTARY. Brooke's Treatise on the Office and Practice of a Notary of England. With a full collection of Precedents. Sixth Edition. By JAMES CRANSTOUN, Esq., Barrister-at-Law. Demy 8vo. 1901. 11. 5s. "The book is an eminently practical one, and contains a very complete collection of notarial precedents. The editor is to be congratulated upon the execution of a very thorough piece of work." Law Journal. OATHS. Stringer's Oaths and Affirmations in Great Britain and Ireland; being a Collection of Statutes, Cases, and Forms, with Notes and Practical Directions for the use of Commissioners for Oaths, and of all Courts of Civil Procedure and Offices attached thereto. By FRANCIS A. STRINGER, of the Central Office, Royal Courts of Justice, one of the Editors of the "Annual Practice." Second Edition. Crown 8vo. 1893. 4. " Indispensable to all commissioners." Solicitors' Journal. ORANGE RIVER. The Statute Law of the Orange River Colony. Translated. Royal 8vo. 1901. 21. 2s. OTTOMAN CIVIL LAW. Grigsby's Medjelle, or Ottoman Civil Law. Translated into English. By W. E. GRIGSBY, LL.D., Esq., Barrister-at-Law. Demy 8vo. 1895. 11. Is. PARISH LAW. Humphreys' Parish Councils. The Law relating to Parish Councils, being the Local Government Act, 1894 ; with an Appendix of Statutes, together with an Introduction, Notes, and a Copious Index. Second Edition. By GEORGE HUMPHREYS, Esq., Barrister-at-Law. Royal 8vo. 1895. 10s. Steer's Parish Law. Being a Digest of the Law relating to the Civil and Ecclesiastical Government of Parishes and the Relief of the Poor. Sixth Edition. By W. H. MACNAMARA, Esq., Assistant Master of the Supreme Court, Registrar of the Court constituted under the Benefices Act, 1898. Demy 8vo. 1899. 11. " Of great service both to lawyers and to parochial officers." Solicitors' Jour. " A most useful book of reference on all matters connected with the parish, both civil and ecclesiastical. "Law Journal. PARTNERSHIP. Pollock's Digest of the Law of Partnership. Seventh Edition. With an Appendix of Forms. By Sir FREDERICK POLLOCK, Bart., Barrister-at-Law, Author of "Principles of Con- tract," "The Law of Torts," &c. Demy 8vo. 1900. 10*. " Of the execution of the work we can speak in terms of the highest praise. The language is simple, concise, and clear." Law Magazine. "Praiseworthy in design, scholarly and complete in execution." Sat. Review. PATENTS. Edmunds on Patents. The Law and Practice of Letters Patent for Inventions. By LEWIS EDMUNDS, Esq., K.C. Second Edition. By T. M. STEVENS, Esq., Barrister-at-Law. Roy. 8vo. 1897. 11. 12*. " We have nothing but commendation for the book." Solicitors' Journal. " It would be difficult to make it more complete." Law Times. Edmunds' Patents, Designs and Trade Marks Acts, 1883 to 1888, Consolidated with an Index. Second Edition. By LEWIS EDMUNDS, Esq., K.C., D.Sc., LL.B. Imp. 8vo. 1895. Net 2s. 3d. Gordon's Monopolies by Patents and the Statutable Remedies available to the Public. By J. W. GORDON, Esq., Barrister-at- Law. DemySvo. 1897. % 18*. " Must take a unique place in our legal literature." Law Times. Gordon's Compulsory Licences under the Patents Acts. By J. W. GORDON, Esq., Barrister-at-Law. Demy 8vo. 1899. 15*. * t * All standard Law Works are kept in Stock, in law calf and other binding!. 22 STEVENS AND SONS, LIMITED, PAT E N TS continued. Johnson's Patentees' Manual. A Treatise on the Law and Practice of Patents for Inventions. Sixth Edition. By JAMBS JOHN- SON, Esq., Barrifiter-at-Law ; and J. HENBT JOHNSON, Solicitor and Patent Agent. DemySvo. 1890. 10*. 6rf. Johnson's Epitome of Patent Laws and Practice. Third Edition. Crown 8vo. 1900. Net, 2s. 6d. Morris's Patents Conveyancing. Being a Collection of Precedents in Conveyancing in relation to Letters Patent for Inventions. With Dissertations and Copious Notes on the Law and Practice. By ROBEBT MOBBIS, Esq., Barrister-at-Law. Royal 8vo. 1887. II. 5s. Thompson's Handbook of Patent Law of all Countries. By WM. P. THOMPSON. Twelfth Edition. 12mo. 1902. Net, 2*. 6d. Thompson's Handbook of British Patent Law. Eleventh Edition. 12mo. 1899. Net, 6d. PAWN BROKING. Attenborough's Law of Pawnbroking, with the Pawnbrokers Act, 1872, and the Factors Act, 1889, and Notes thereon. By CHARLES L. ATTKNBOBOUOH, Esq., Barrister- at-Law. Post 8vo. 1897. Net, 3s. PLEADING. Bullen and Leake's Precedents of Pleadings, with Notes and Rules relating to Pleading. Fifth Edition. Revised and Adapted to the Present Practice in the Queen's Bench Division of the High Court of Justice. By THOMAS J. BULLEN, Esq., Barrister- at-Law, CTBO. DODD, Esq., K.C., and C. W. CLIFFOBD, Esq., Bar- rister- at- Law. Demy8vo. 1897- II. 18*. " The standard work on modern pleading." 7>itr Journal, " A very large number of precedents are collected together, and the notes are full and clear." Law Times. " The Editors have in every way preserved the high standard of the work, and brought it down to date effectively and conscientiously." Lav Magazine. Odgers' Principles of Procedure, Pleading and Practice in Civil Actions in the High Court of Justice. Fifth Edition. By W. BLAKE ODOEBS, LL.D., K.C., Recorder of Plymouth, Author of "A Digest of the Law of Libel and Slander." Demy 8vo. 1903. 12*. 6d. " The student or practitioner who desires instruction and practical guidance in our modem svstera of pleading cannot do better than possess himself of Mr. Odgers* book. Law Journal. " Includes a careful outline of the procedure in an ordinary action at law. This sketch will be of the utmost value to students, and ought to win the ap- proval also of examining bodies, as it is remarkably free from any adaptability to the purposes of the mere crammer." Literature. "An invaluable book." Lew Xotet. " Terse, clear and pointed." Law Quarterly Review. POISONS. Reports of Trials for Murder by Poisoning. With Chemical Introductions and Notes. By G. LATHAM BBOWNB, Esq., Barrister-at-Law, and C. Or. STEW AST, Senior Assistant in the Labo- ratory of St. Thomas's Hospital, &c. Demy 8vo. 1883. 12. 6rf. POWERS. Farwell on Powers. A Concise Treatise on Powers. Second Edition. By GEOBQE FABWELL, Esq., Q.C. (now a Justice of the High Court), assisted by W. R. SHELDON, Esq., Barrister- at-Law. Royal 8vo. 1893. 11. 5s. PRI NCI PAL AN D AG EN T. Wright's Law of Principal and Agent. By E. BLACKWOOD WBIOHT, Esq., Barrister-at-Law. Second Edition. DemySvo. 1901. 18*. " Clearly arranged and clearly written." Late Times. " May with confidence be recommended to all legal practitioners as an accu- rate and handy text book on the subjects comprised in it." Solicitor? Journal. " An excellent book." Law Quarterly Review. PRIVY COUNCIL LAW. Wheeler's Privy Council Law: A Synop- sis of all the Appeals decided by the Judicial Committee (including Indian Appeals) from 1S76 to 1891. Together with a precis of the Cases from the Supreme Court of Canada. 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" The student -will not easily find a better general view of the law of property than that which is contained in this book." Solicitors' Journal. " We know of no better book for the class-room." Law Times. PUBLIC MEETINGS. Chambers' Handbook for Public Meet- ings. Second Edition. By GEOBGB F. CHAMBERS, Esq., Barrister- at-Law. Demy 8vo. 1888. Net, 2*. 6d. QUARTER SESSIONS. See also " Criminal Law." Pritchard's Quarter Sessions. Second Edition. By V. GBAHAM MILWARD and JOSEPH B. MATTHEWS, Esqrs., Barristers-at-Law. DemySvo. 1903. (Nearly ready.} 11. Us. Gd. RAILWAY RATES. Darlington's Railway Rates and the Carriage of Merchandise by Railway. By H. R. DABLDTOTON, Esq., Barrister-at-Law. Demy 8vo. 1893. 11. 5s. RAILWAYS. Browne and Theobald's Law of Railway Com- panies. Being a Collection of the Acts and Orders relating to Railway Companies in Great Britain and Ireland, with Notes of all the Cases decided thereon. Third Edition. By J. H. BALFOUB BEOWNE, Esq., one of His Majesty's Counsel, and FBANK BALFOUB BBOWNE, Esq., Barrister-at-Law. Royal 8vo. 1899. 21. 2s. " Contains in a very concise form the whole law of railways." The Times. " It is difficult to find in this work any subject in connection with railways which is not dealt with." Law Times. " Practitioners who require a comprehensive treatise on railway law will find it indispensable." Law Journal. Powell's Relation of Property to Tube Railways. By MATJEICE POWELL, Esq., Barrister-at-Law. DemySvo. 1903. Net Is. 6d. RATES AND RATING. Castle's Law and Practice of Rating. Fourth Edition. By EDWAED JAMES CASTLB, Esq., one of His Majesty's Counsel, &c. Royal Svo. 1903. 11. 5*. " A sure and safe guide." Law Magazine. " A compendious treatise, which has earned the goodwill of the Profession on account of its conciseness, its lucidity, and.its accuracy." Law Times. Hamilton and Forbes' Digest of the Statutory Law relating to the Management and Rating of Collieries. 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Law Notes. %* All standard Law Works are kept in Stock, in late calf and other bindings. 24 STEVENS AND SONS, LIMITED, REAL PROPERTY continued. De Villier's History of the Legislation concerning Real and Personal Property in England during the Reign of Queen Victoria. Crown 8vo. 1901. 3*. Gd. Digby's History of the Law of Real Property. Fifth Edition. Demy 8vo. 1897. 12*. 6rf. Lightwood's Treatise on Possession of Land i with a chapter on the Real Property Limitation Acts, 1833 and 1874. By Jons M. Lioimvoon, Esq., Barrister-at-Law. Demy 8vo. 1894. !'. Maclaurin's Nature and Evidence of Title to Realty. A His- torical Sketch. By RICHARD C. MACLAUBIN, ESQ., of Lincoln's Inn. Demy 8vo. 1901. 10. 6rf. Shelford's Real Property Statutes. Vide "Carson." Smith's Real and Personal Property. A Compendium of the Law of Real and Personal Property, primarily connected with Con- veyancing. Designed as a Second Book for Students, and as a Digest of the most useful learning for Practitioners. Sixth Edition. By the AUTHOR and J. TBUSTBAH, LL.M., Barrister-at-Law. 2 vola. Demy 8vo. 1884. 21. 2*. " A book which he (the student) may read over and over again with profit and pleasure." Law Timts, " Will be found of very great service to the practitioner." Solicitor^ Journal. " A really useful and valuable work on our system of Conveyancing." Lav Students' Journal. Strahan. Vide " Property." REGISTRATION. Rogers. Ffe" Elections." Fox and Smith's Registration Cases. (18861895). Royal 8vo. Calf, net, 2f. 10*. Smith's (C. Lacey) Registration Cases. Part I. (1895-96). Net. 6s. 6d. Part II. (1896), 5*. Part III. (1897), 4*. Part IV. (1898-9), 6*. Part V. (1899-1900), 4*. Part VI. (1900-1901), 4*. 6d. Part VII. (1902), 4*. Lawson's Notes of Decisions under the Representation of the People Acts and the Registration Acts. By WH. LAWSON, Barrister-at-Law. DemySvo. 1894. 24*. Ditto, ditto, for 1894, 1895, 1896 and 1897, each net, 4. 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Demy 12mo. 1903. Net, 2*. 6rf. " This little work, consisting of 119 pages, is a collection of notes, clearly and simply expressed, upon the principal topics of Roman .Law as they are stated in the Institutes of Gaim and Justinian. It is neatly arranged, and forms a complete outline of the subject." Law Xotet. * All ttandard Law Workt are kept in Stock, in laic calf and other bindings. 119 & 120, CHANCEBY LANE, LONDON, W.O. 25 ROMAN LAW continued. Goodwin's XII. Tables. By FEBDEEICZ GOODWIN, LL.D. London. Royal 12mo. 1886. 3*. 6d. Greene's Outlines of Roman Law. Consisting chiefly of an Analysis and Summary of the Institutes. For the use of Students. By T. WHTTCOMBE GBEENE, Barrister-at-law. Fourth Edition. Foolscap 8vo. 1884. 7*. 6rf. Grueber's Lex Aquilia. The Roman Law of Damage to Property : being a Commentary on the Title of the Digest " Ad Legem Aqui- liain" (ix. 2). With an Introduction to the Study of the Corpus Juris Civilis. 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Whewell's Grotius de Jure Belli et Pacis, with the Notes of Bar- beyrac and others ; accompanied by an abridged Translation of the Text, by W. WHEWELL, D.D. 3 vola. Demy Svo. 1853. 12. %* All standard Law Works are kept in Stock, in lair calf and other bindings. 26 STEVENS AND SONS, LIMITED, RULING CASES. Campbell's Ruling Cases. Arranged, An- notated, and Edited by ROBEBT CAMTBKIX, of Lincoln's Inn, E.-q., Barrister- at- Law, Advocate of the Scotch Bar, astueted by other Members of the Bar. With American Notes by IEVINO BEOWWE, formerly Editor of the American Reports, and the Hon. LEONARD A. JO.VES, A.B., LL.B. (H:itv . i:-.y;il8vo. 1894-1'JO'J. Half v> Hum, gilt top. Complete in XXVI. Volume*. Price for the set, net, -'it. If^" Offered fur n lunitid t<,nc tit Jill cufh icit/i ,FKY. Fourth Edition. By W. D. RAWLINS, Esq., K.C. Royal 8vo. 1903. \l. 16s. " The loading authority on its subject." Law Jouniof. " We think we may sav, as a result of our investigation of this edition, that no pains have been spared by Mr. Eawlins to incorporate all the new matter which has arisen during the ten years which have elapsed since the issue of the third edition, and that ha has added it with accuracy and neatness. Solicitors' Journal. " Mr. Rawlins has acquitted himself of his responsible task with signal ability. Law Times. %* All standard Law Works are kept in Slock, in IQIC calj and other biwlinys. 98 8TEVEN8 AND SONS, LIMITED, STAMP LAWS. Highmore's Stamp Laws. Being the Stamp Acts of 1891 : with the Acts amending and extending the game, in- cluding the Finance Act, 1902, together with other Acts imposing or relating to Stamp Duties, and Notes of Decided Cases ; also an Introduction, and an Appendix containing Tables showing the com- parison with the antecedent Law. Second Edition. By NATHANIEL JOSEPH HIOIDIOBB, Assistant-Solicitor of the Inland Revenue. Demy 8vo. 1902. 10*. &d. " The recognized work on the subject." Law Quai-tn-i'/ I. "Mr. Hitrhmoreha.- inroiponitcd in the new edition of thin work the- legislation of the last three years, NO fur in it ;itt'e is the Stamp Lawn, including the Kinimr-e Act, IJWJ. lie has ).'\i>e Journal. "A very rompreheiiMvo volurre, fulrillinp every ruiuin-mnnt. . . . The various notes to the wct;ons of the several Act- infitn orated in the volume are fully and accurately st't out, the points of the dreidtd caes clearly expnwaed, and the efffct and object of the enactment indicated ; and what must be of especial value to the practitioner, the practice at Somerset House with regard to all matters coming before that institution is stated." Justice of the 1'ence. "Mr. Highmore's 'Stamp Laws' leaves nothing undone." The Civilian. STATUTES, and vide " Acts of Parliament." Chitty's Statutes. The Statutes of Practical Utility, from the earliest times to 1S94, with Supplemental Volume to 1901 inclusive. Arranged in Alphabetical and Chronological Order; with Notes and Indexes. Fifth Edition. By J. M. LETT, Esq., Barrister-at-Law. Boyal 8vo. Complete with Index. In 14 Volumes. 1894-19"2. 15/. lot. The Supplementary Volume, 1895 to 1901. Consolidated with Intlcx. By J. M. LELY, Esq. May be had separately. 21. 2*. "To those who already possess 'Chitty's Statutes' this new volume is indispensable." Lav Notes, June, 1902. The Annual Supplements. Separately: 1895, 6*. 1896, 10*. 1897, 5s. 1898, 7*. 6d. 1899, 7*. 6rf. 1900, 7*. 6rf. 1901, It. Gd 1902, 7*. &d. 1903 (nearly ready], ~s. 6d. "It it a book which no public library should be without." Spectator. "A work of permanent value to the practicing lawyer." Solicitor? Journal. "The profession will feel grateful both to the editor and the publishers of a work which will be found of the highest value." Law Journal. " A legal work of the very highest importance. . . . Few besides lawyers will, we suspect, realise the amount of work which such an undertaking involves to the editor, who appears to have spared no pains to give a clear, orderly, and methodical character to the com- pilation." Daily News. "This collection has fulfilled a purpose of usefulness only to be understood by those who are acquainted with the amazing com- plexity of English statute law. with its bewildering incoherence and painful heterogeneity." fall Mall Gazette. " Indispensable in the library of every lawyer." Saturday Revietr. " To all concerned with the laws of England, Chitty's Statutes of Practical Utility are of essential importance, whilst to the practising lawyer they are an absolute necessity." Law Times. "It is apparently the belief of some popular novelists that lawyers in their difficulties still uniformly consult daily Coke upon Littleton and Blackstone. Those who know better are aware that the lawyer's Bible is the Statutes of Practical Utility 'that they are his working tools, even more than accredited text-books or 'authorised reports.' More than one judge has been heard to say that with the ' Statutes of Practical Utility' at his elbow on the bench he was apprehensive of no difficulties which might arise." The Times. * All standard Law Wcrls are kept in Slock, in law calf and other bindings. 119 & 120, CHANCERY LANE, LONDON, W.C. 28 STATUTE LAW. Wilberforce on Statute Law. The Principles which govern the Construction and Operation of Statutes. By E. WILBEBFOBCE, Esq., a Master of the Supreme Court. 1881. 18*. SUCCESSION. Holdsworth and Vickers' Law of Succession, Testamentary and Intestate. Demy 8vo. 1899. 10s. 6^. SUMMARY CONVICTIONS. Paley's Law and Practice of Sum- mary Convictions under the Summary Jurisdiction Acts, 1848 1884; including Proceedings Preliminary and Subse- quent to Convictions, and the Responsibility of Convicting Magistrates and their Officers, with the Summary Jurisdic- tion Rules, T886, and Forms. Seventh Edition. By W. H. MACNAMABA, Esq., Barrister-at-Law. Demy 8vo. 1892. II. 4. TAXPAYERS' GUI DES. Fwfe "House," "Income," & "Land Tax." THEATRES AND MUSIC HALLS. Geary's Law of Theatres and Music Halls, including Contracts and Precedents of Contracts. By W. N. M. GEAET, J.P. With Historical Introduc- tion. By JAMBS WILLIAMS, Esqrs., Barristers-at-Law. 8vo. 1885. 5*. TITLE. Jackson and Gosset. Vide " Investigation of Title." TORTS. Addison on Torts. A Treatise on the Law of Torts; or Wrongs and their Remedies. Seventh Edition. By HOEACB SMITH, Esq., Bencher of the Inner Temple, Metropolitan Magis- trate, and A. P. PEBCEVAL KEEP, Esq., Barrister-at-Law. Royal 8vo. 1893. 11. 18*. "As an exhaustive digest of all the cases which are likely to be cited in practice it stands without a rival." Law Journal. "As now presented, this valuable treatise must prove highly acceptable to judges and the profession." Law Times. " An indispensable addition to every lawyer's library." Law Magazine. Ball's Leading Cases on the Law of Torts, with Notes. Edited by W. E. BALL, LL.D., Esq., Barrister-at-Law. Royal 8vo. 1884. 11. 1*. Bigelow's Law of Torts. By MELVILLE M. BIGELOW, Ph.D. Harvard. Second Edition. Demy 8vo. 1903. 12*. 6rf. Innes' Principles of the Law of Torts. By L. C. INNES, lately one of the Judges of the High Court, Madras, Author of " A Digest of the Law of Easements." Demy 8vo. 1891. 10s. G<. Pollock's Law of Torts : a Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law. Sixth Edition, By Sir FBEDEBICK POLLOCK, Bart., Barrister-at-Law. Author of "Principles of Contract," " A Digest of the Law of Partnership," &c. Demy 8vo. 1901. II. 5s. " Concise, logically arranged, and accurate." Law Times. " Incomparably the best work that has been written on the subject." Literature. "A book which is well worthy to stand beside the companion volume on 'Contracts.' Unlike so many law-books, especially on this subject, it is no mere digest of cases, but bears the impress of the mind of the writer from beginning to end." Law Journal. "The work is one ' professing to select rather than to collect authorities,' but the leading cases on each branch of the subject will be found ably dealt with. A work bearing Mr. Pollock's name requires no recommendation. If it did, we could heartily recommend this able, thoughtful, and valuable book .... as a very successful and instructive attempt to seek out and expound the principles of duty and liability underlying a branch of the law in which the Scottish and English systems do not materially differ." Journal of Jurisprudence. *+* All standard Law Works are kept in Stock, in law calf and other binding!. 30 STEVENS AND SONS, LIMITED, TRADE MARKS. Sebastian on the Law of Trade Marks and their Registration, and matters connected therewith, including a chapter on Goodwill ; the Patents, Designs and Trade Marks Acts, 1883-8, and the Trade Marks Rules and Instruction!* thereunder; with Forms and Precedents ; the Merchandize Marks Acts, 1887-94, and other Statutory Enactments; the United States Statutes, 1870-82, and the Rules and Forms thereunder ; and the Treaty with the United States, 1877. By LEWIS BOYD SEBASTIAN, Kq., Barrister-at-Law. Fourth Edition. Bv the Author and HAHKY BAIRD HEMMING, Esq., Barrister-at-Law. Royal 8vo. 1899. II. 10*. ; Stands alone as an authority upon the law of trade-marks and their regis- tration." Law Journal. "It in rarely we come across a law book which embodies the results of years of careful inve*ti?ation and practical experience in a branch of law, or that can be unhesitatingly appeul'-d to as a standard authority. Thin is what can be aid of Mr. Sebastian's book." Solicitors' Journal. Sebastian's Digest of Cases of Trade Mark, Trade Name Trade Secret, Goodwill, &c., decided in the Court* of the United Kingdom, India, the Colonies, and the United States of America. By LEWIS BOYD SEBASTIAN, Esq., Barrister-at-Law. 8vo. 1879. II. Is. " Will be of very great value to all practitioners who have to advise on matter* connected with trade marks." Solicitors' Journal. TRAMWAYS. Robertson's Law of Tramways and Light Rail- ways in Great Britain (3rd Edition of Button's " Tramway Art* of the United Kingdom ") : comprising the Statutes relating to Train- ways and Light Railways iu England and Scotland, with full Notes : the Tramways and Light Railways Rules ; the Regulations, By-Laws and Memoranda issued by the Board of Trade ; the Standing Orders of Parliament : the General Orders under the Private Legislation Procedure (Scotland) Act, 1899 : and Disser- tations on Locus Standi and Rating. By GEOROK S. ROBERTSON, M.A., Esq., Barrister- at- Law. Royal Svo. l'J03. II. 5*. TRANSVAAL. The Statute Law of the Transvaal. Translated. Royal Svo. 1901. 11. i>x. Transvaal Proclamations, 19001902. Royal Svo. 1902. 25*. TRUSTS AND TRUSTEES. Ellis' Trustee Acts, including a Guide for Trustees to Investments. By ABTHUB LEB ELLIS, Esq., Barrister-at-Law. Sixth Edition. By L. W. BYRNE, Esq., Barrister- at-Law. Roy. 12mo. 1903. 6*. Godefroi's Law Relating to Trusts and Trustees. SecondEdit. By HENRY GODKFBOI, of Lincoln's Inn, Esq., Barrister-at-Law. Royal Svo. 1891. II. Us. VENDORS AND PURCHASERS. Dart's Vendors and Pur- chasers. A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. By the late .T. HENRY DABT, Esq., one of the Six Conveyancing Counsel of the High Court of Justice, Chancery Division. Sixth Edition. By the late WILLIAM BARBER, Q.C., RICHARD BURDON HALDANK, K.C., and WILLIAM ROBERT SHKLDOJ?, Esq., Barrister-at-Law. 2 vols. Royal Svo. 1888. 21. 15*. * # * A new Edition imder tho Editorship of BENJAMIN LENNARD CHERRY, Esi(., Banister- at- Law, is in preparation. Farrers Precedents of Conditions of Sale of Real Estate, Re- versions, Policies, &c. : with exhaustive Footnotes. Introductory Chapters, and Appendices. By FREDERICK EDWARD FARBEE, Esq., Barrister-at-Law. Royal Svo. 1902. 16*. Mr. Fairer has written a rare Uiinp a new book which will be of real value in a conveyancer's library. . . . Wu venture to predict that thia book will l>e popular." Lnw J' " The work, while sufficiently elementary to be of extreme use to stndonta nd young: practitioners, will also be very serviceable to the more experienced. The notes urc essentially practical and are evidently largely derived from experience, and the forms are adapted to recent decisions. Mr. Farrer's book strikes a new v in. and deserves and will no doubt secure the support of the profession." J.aio Tiiae.1. * All ttandard Law Work afe kept in Stock, in late calf and n her binding*. 119 & 120, CHANCERY LANE, LONDON, W.C. 31 VENDORS AND PURCHASERS continued. Turner's Dutiesof Solicitor to Client as to Sales, Purchases, and Mortgages of Land. Second Edition. By W. L. HACON, Esq., Barrister-at-Law. Demy Svo. 1893. 10. Gd. Webster's Law Relating to Particulars and Conditions of Sale on a Sale of Land.-- -With Appendix of Forms. Second Edition. By "W. F. WEBSTEK, Esq., Barrister-at-Law. Hoy. 8vo. 189G. If. 5s. " This is the Second Edition of a well arranged and useful book, and the use- fulness will not be impaired by the fact that the authority for each proposition and the reference to such authority are cited in the text itself instead of being relegated to a footnote." Law Journal. Webster's Conditions of Sale under the Land Transfer Acts. Being a Supplement to above. Royal 8vo. 1899. Net, '2s. WAR, DECLARATION OF. Owen's Declaration of War. A Survey of the Position of Belligerents and Neutrals, with relative considerations of Shipping and Marine Insurance during War. By DOUGLAS OWTSN, Esq., Barrister-at-Law. Demy 8vo. 1889. 11. Is. Owen's Maritime Warfare and Merchant Shipping. A Summary of the Rights of Capture at Sea. By DOUGLAS OWEN, Esq., Bar- rister-at-Law. Demy 8vo. 1898. Net, la. WATER. Bartley's Metropolis Water Act, 1902, together with thr* Circulars, Notices and Orders issued by the Local Government Board and the Court of Arbitration in relation thereto. By DOUGLAS C. 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Part II. WINDING-UP FOBJIS AND PRACTICE. Arranged as follows : Com- pulsory Winding-Up, Voluntary Winding-Up, Winding- Up under Supervision, Arrangements and Compromises, with copious Notes, and an Appendix of Acts and Rules. Eighth Edition. By FBANCIJ BEAUFOET PALMES, assisted by FEANK EVANS, Esqrs., Barristers-at- Law. Royal 8vo. 1900. 11. 12s. " Palmer's ' Company Precedents ' is the book par excellence for practitioners. It is needless to recommend Mr. Palmer's book to the profession, for it is already known and appreciated. We advise those who have any doubts to con- sult it, and they will be in agreement with us." Law Journal. " Simply invaluable, not only to company lawyers, but to everybody con- nected with companies." Financial News. WORKMEN'S COMPENSATION. Vide "Employers' Liability." Robertson and Glegg's Digest of Cases under the Workmen's Compensation Acts. Royal Svo. 1902. Net, 10s. WRECK INQUIRIES Murton's Law and Practice relating to Formal Investigations in the United Kingdom, British Posses- sions and before Naval Courts into Shipping Casualties and the Incompetency and Misconduct of Ships' Officers. With an Introduction. By WALTKB MUBTON, Solicitor to the Board of Trade. Demy Svo. 1884. 11. is. WRONGS. Addison, Ball, Bigelow, Pollock. -Vidt "Torts." STEVENS AND SONS, LD., 119 & 120, CHANCERY LANE, LONDON. PREPARING FOR PUBLICATION. Brickdale and Sheldon's Land Transfer Acts. By C. FOBTESCUE BBICKDALE, Registrar at the Land Registry, and W. R. SHELDON, Esqrs., Barristers-at-Law. Second Edition. (In preparation.) Surge's Colonial Law: Commentaries on Colonial and Foreign Law generally and in their Conflict with each other and with the Law of England. A new Edition. By A. WOOD RENIUN. K>q., Puisne Judge, Mauritius, and G. ('. I'IUI.UMORE, of the Middle Temple, Esq., Barrister-at-Law, assisted by Experts in the Various Systems of Law. 4 yols. Royal 8vo. (In preparation.) Coote's Treatise on the Law of Mortgage. Sixth Edition. By SYDNEY WILLIAMS, Esq., Barrister-at-Law. (In the press.) Dart's Vendors and Purchasers. A Treatise on the Law and Practice relating to Vendors and Purchasers of Real Estate. Seventh Edition. By BENJAMIN L. CHERRY, Esq., Barrister-at-Law. (In preparation.) Digest of Cases, Overruled, Approved, or otherwise specially considered in the English Courts to the end of 1902. With extracts from the Judgments dealing with the same. By W. A. G. WOODS and J. RITCHIE, Esqrs., Barristers-at-Law. Being a new edition of " DALE and LEHMANN'S Digest." (In the press.) English Reports. A complete Re-issue of all the Decisions prior to 1866 in about 150 Volumes. Third Series. Chancery. 125 Vols. to be issued in about 25 Volumes. (Vol. XII. in the press.) Hart's Treatise on the Law of Banking. By HEBER HART, Esq., LL.D., Barrister- at -Luw. (In preparation .) 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PAET I. : GENERAL FORMS. Arranged as follows: Promoters, Prospectus, Agreements, rr^^o^nr^Hnrr M omnmnHa and Articles of Association, Private Companies, Employe's' UNIVERSITY OF CALIFORNIA LIBRARY Lot Angeles This book is DUE on the last date stamped below, Form LO-Series 444 r, I. t. e :'f . . <-../.. " A lawyer's book prepared with an evident intention of saying all there is to be eaid on the legal aspect of the subject." Saturday Jfei-iew. Barham's Students' Text-Book of Roman Law. By C. NICOLAS LOS A>J)QELES UC SOUTHERN REGIONAL LIBRAR A 000 6Q2 082 1 STEVENS AND SONS, LIMITED, 119 & 120, 0] _____ THE ENGLISH " WITHIN THE REACH OF ALL. Complete RE-ISSUE of ALL THE DECISIONS prior to 1866 in about 150 volumes. rilHE objects of this great scheme of complete re-issue of all the English Eeports up to the commencement of the Law Eeports in 1866 are now well known, and the House of Lords Series in 11 Yolumes, and the Privy Council Series in 9 Volumes are now ready. 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