1850. ELVES บ. CROFTS. fied up to the 29th of September last; and that the several covenants and agreements on the part of the lessee or assignee therein contained have been well and truly observed and performed down to the day of the date hereof; and that he the said James Crofts hath full right, title, and authority to assign the said messuage and premises thereby assigned, or intended so to be, with the appurtenances, to the said Thomas Elves, his executors, administrators, and assigns, in manner aforesaid, according to the true intent and meaning of these presents: And, further, that it shall be lawful for the said Thomas Elves, his executors, &c., at all times during the residue of the said term of twentyone years, to hold and enjoy the said messuage and premises, and receive and take the rents and profits thereof for his and their own use and benefit, without any interruption or disturbance whatsoever by the said James Crofts, his executors or administrators, or by any person or persons claiming or to claim by, from, or under, or in trust for him or them; and that free from all former estates, rights, titles, interest, charges, and incumbrances whatsoever made, done, or committed, or knowingly occasioned or suffered, by the said James Croft, or any person or persons claiming by, through, or under him, except only the rent reserved by the said recited indenture of lease, and the covenants and agreements on the part of the lessee or assignee therein contained: And, moreover, that he the said James Crofts, his executors or administrators, and all and every persons and person whatsoever having or rightfully claiming under or in trust for him or them, shall and will at all times hereafter, at the request and expense of the said Thomas Elves, his executors, &c., do and execute all such acts, deeds, and assurances, for better and more absolutely assigning and assuring the said messuage and premises hereby assigned, with their appurtenances, to the said Thomas Elves, his executors, &c., for all the then residue of the said term of twenty-one years, in manner aforesaid, or otherwise, as by the said Thomas Elves, his executors, &c., or his or their counsel or agent, shall be advised and required: And the said Thomas Elves doth hereby covenant, for bimself, his heirs, executors, administrators, and assigns, that he or they shall and will, from time to time, and at all times hereafter during the residue of the said term of twenty-one years, well and truly pay the rent reserved by the said recited indenture of lease, and observe and perform all the covenants and agreements on the part of the lessee or assignee therein contained, and from and against the said rent, covenants, and agreements, and all actions, suits, costs, charges, damages, claims, and demands whatsoever, which shall or may thereafter arise or happen in respect thereof, shall and will at all times hereafter keep harmless and indemnified the said James Crofts, his heirs, executors, and administrators, and his and their estate and effects: And this indenture further witnesseth, that, for the considerations aforesaid, he the said James Crofts doth hereby bargain, sell, and assign unto him, the said Thomas Elves, his executors, &c., all the several ranges, stoves, grates, cupboards, cisterns, coppers, dressers, shelves, and other tenants' fixtures, in and about the said messuage and premises hereinbefore assigned, or intended so to be, and all the chopping-blocks, scales, weights, butchers' trays, choppers, knives, and other articles and things used by the said James Crofts in his aforesaid business of a butcher, and also all the right, title, and interest of him the said James Crofts, to and in the same business, and the goodwill and custom thereof, to have and to hold the said fixtures and effects, and all other the premises lastly hereby bargained, sold, and assigned, or intended so to be, to 1850. ELVES v. CROFTS. 1850. ELVES v. CROFTS. the said Thomas Elves, his executors, administrators, and assigns, as his and their own proper goods and chattels absolutely and for ever, free from all incumbrances affecting the same: And the said James Crofts, for the considerations aforesaid, doth hereby, for himself, his heirs, executors, and administrators, covenant and agree with the said Thomas Elves, his executors, administrators, and assigns, that he the said James Crofts shall not nor will, at any time or times hereafter, either by himself alone, or jointly with, or as agent, journeyman, or assistant for, any person or persons whatsoever, either directly or indirectly, or upon any account or pretence whatsoever, set up, exercise, or carry on, or be employed in carrying on, the trade or business of a butcher, within five miles from the said messuage and premises hereby assigned, or intended so to be; and shall not nor will, either by himself, or by or with any other person or persons, do, or cause to be done, any wilful act, matter, or thing to the prejudice of the trade or business of a butcher to be hereafter carried on by the said Thomas Elves at or upon the same messuage and premises; but, on the contrary, shall and will endeavour to promote the interest of the said Thomas Elves amongst the customers of the said James Crofts, and otherwise: And that, if the said James Crofts shall do any act in breach or violation of this present covenant, then he the said James Crofts shall and will immediately thereupon pay to the said Thomas Elves, his executors, administrators, or assigns, the sum of 3007., to be deemed and considered, and the same is hereby declared to be as and for, liquidated and ascertained damages, and not in the nature of a penalty. In witness," &c. The defendant then pleaded, first, non est factum, -secondly, that he, the defendant, did not so set up, exercise, or carry on such trade and business, in breach of the said covenant, in manner and form as in the declaration in that behalf alleged, -thirdly, that, before the making of the said indenture, the said business carried on by the defendant as in the declaration mentioned, was that of a retail butcher; and that, after the making of the said indenture, and before the commencement of this suit, and for a long space of time, to wit, the space of one year before the defendant so set up, exercised, or carried on such business as in the declaration complained of, to wit, on the 20th of June, 1848, the plaintiff wholly discontinued the trade and business of a butcher at the said premises, and ceased to carry on the same, and the same had not since been carried on at the said place, or elsewhere, by the plaintiff, or by any other person on his behalf, or by, through, or under any assignment of the said goodwill or licence in that behalf by the plaintiff made or given, - fourthly, that, after the making of the said indenture, and before the commencement of this suit, and long before the defendant so set up, exercised, or carried on such business as in the declaration complained of, to wit, on the 26th of June, 1846, the said term in the declaration mentioned, ended and expired by effluxion of time. The plaintiff joined issue on the first two pleas, replied de injuriâ to the third, and traversed the fourth. At the trial, before Maule, J., at the last spring assises at Kingston, a verdict was found for the plaintiff on the first and second issues, damages 3007.; and for the defendant on the third and fourth issues, - with liberty to the defendant to move to enter the verdict for him on the second issue, if the court should be of opinion that his setting up the trade of a butcher within the prescribed limits after the covenantee had ceased to carry on the trade [and after the expiration of the term in the premises], was a breach of the covenant. 1850. ELVES V. CROFTS. 1850. ELVES v. CROFTS. Lush, in the following term, obtained a rule nisi to enter up judgment for the plaintiff notwithstanding the verdict for the defendant on the third and fourth issues. He submitted that the covenant in question was valid, inasmuch as the restriction therein contained was not more extensive than the fair protection of the covenantee required; citing Hitchcock v. Coker (a), Rannie v. Irvine (b), and Hastings v. Whitley. (c) [Williams, J., referred to Pemberton v. Vaughan. (d)] Montagu Chambers, for the defendant, in pursuance of the leave reserved to him at the trial, also obtained a rule nisi to enter a verdict for the defendant on the second issue, upon the ground urged at the trial; or to arrest the judgment, on the ground that the covenant declared on was void in law, as an unreasonable restraint of trade. Montagu Chambers and Fortescue, in the course of the same term, shewed cause against the plaintiff's rule, and in support of the cross-rule. The effect of the finding upon the third and fourth issues depends upon the construction which the court will put upon the deed: and this will be such a construction as will give full legal effect to it, though it somewhat restricts the letter of it, rather than such a one as will make it unlawful. It is laid down in Sheppard's Touchstone (e), that the construction of a deed shall be as near the apparent intention of the parties as the words of the deed and the law will permit; and such that every part of the deed may take effect, and all the parts agree together. The grant here is of the residue of the term only; and the covenant must be construed with the implied qualification that it is to operate (a) 6 Ad. & E. 438., 1 N. & M. 796. (b) 7 M. & G. 969., 8 Scott, N. R. 674. J (c) 2 Exch. 611 (d) 10 Q. B. 87. |