business of an ironmaster, or any other trade or business connected therewith, nor permit or suffer his name to be void: Pemberton v. Vaughan, 10 Q. B. 351. A covenant not to reside within the limits may be coupled with a covenant not to carry on the trade: Atkyns v. Kinnier, 4 Exch. 776; Dendy v. Henderson, 11 Exch. 194. A covenant in restraint of trading, partly reasonable and partly unreasonable, is divisible: as to part it may be valid, and as to the rest void: Mallan v. May, Green v. Price, Tallis v. Tallis, supra. The obligations imposed by such covenants do not cease when the covenantee retires from the business sold: Elves v. Crofts, 10 C. B. 241; or dies, Hastings v. Whitley, 2 Exch. 611. When there is a covenant for the payment of a sum of money on a breach of an agreement in restraint of trading, the covenantee may sue at law for the amount which may be recoverable, according to the language of the covenant, either as a penalty or as liquidated damages. If the sum be payable as liquidated damages, the whole amount, however large, is recoverable for a single breach: Green v. Price, 13 M. & W. 695; and the covenant may make each day's repetition or continuance of the offence a fresh breach: Nicholls v. Stretton, 10 Q. B. 346. Under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125, s. 79), the injured party, where he is entitled to maintain, and shall have brought an action, may also claim a writ of injunction against the repetition or continuance of the injury. See Archbold's Com. L. Prac. 382. The agreement may be by parol: Shackle v. Baker, 14 Ves. 468; Harrison v. Gardner, 2 Madd. 198; and a Court of equity will restrain a breach of it by injunction: Barrett v. Blagrave, 5 Ves. 555, and the cases in equity previously cited; although by the agreement a penalty is affixed to the breach: Sloman v. Walter, 1 Bro. C. C. 419; Barrett v. Blagrave, supra; Clark v. Watkins, 1 N. R. 227; and although the defendant may have paid the penalty, 1 Cox, 27: but a Court of equity will not so interfere, where the agreement affixes to the breach the payment of a sum of money as liquidated damages: 14 Ves. 469; Woodward v. Gyles, 2 Vern. 119; or where there has been long acquiescence in the breach: Barrett v. Blagrave, 6 Ves. 104. PRECEDENT GOODWILL AND STOCK IN TRADE. Covenants in restraint of be divisible. trading may Remedies at law for breach of such agree. ments. Remedies in breach of such equity for agreements. Whether a clause in the agreement, that for every breach a fixed Penalty or sum shall be paid as liquidated damages, excludes the Court from damages. trying the question whether it be a penalty or liquidated damages, quære: see Cole v. Sims, Kay, 56; 5 De G. M. & G. 1. Where a verdict had been obtained for the penalty the Court of Chancery, on a bill filed by the defendant at law, directed an issue to ascertain PRECEDENT GOODWILL AND STOCK IN TRADE. used or employed in carrying on or in connexion with the said businesses or trade, or any of them, within twenty miles of Street aforesaid, except only so far as the said A. B., with the consent of the said C. D. and E. F., shall give them his assistance and countenance in carrying on the said business hereinbefore expressed to be hereby transferred to them as aforesaid. IN WITNESS, &c. PRECEDENT POLICY OF ASSURANCE. 1. Parties. LXXIV. ASSIGNMENT of a POLICY of LIFE ASSURANCE (a). THIS INDENTURE, made &c., between A. B., of &c. [vendor], of the one part; and C. D., of &c. [pur the amount of damage actually sustained, and, on payment of the amount, awarded an injunction against further proceedings by the plaintiff at law: Hardy v. Martin, 1 Cox, 26; S. C., 1 Bro. C. C. 419, n. Should it be doubtful whether the sum payable is to be considered as a penalty or as liquidated damages, a Court of equity will direct a motion for an injunction to stand over, with liberty to the plaintiff to bring an action; and, if the Court of law hold the sum to be in the nature of liquidated damages, and the plaintiff recover the amount, he cannot afterwards renew his motion: Sainter v. Ferguson, 1 M. & Gor. 286. For cases where the sum has been held to be in the nature of liquidated damages, see Rawlinson v. Clarke, 14 M. & W. 187; Price v. Green, 16 M. & W. 354; Atkyns v. Kinnier, 4 Exch. 776; Sainter v. Ferguson, 7 C. B. 716; Reynolds v. Bridge, 6 E. & B. 528. What conduct amounts to a breach of a contract in restraint of trade, must, of course, depend on the language of the covenant: see Rawlinson v. Clarke, 14 M. & W. 187; Dendy v. Henderson, 11 Exch. 194; Mallan v. May, 13 M. & W. 511; Turner v. Evans, 2 Ell. & B. 512; S. C., 2 De G. M. & G. 740; Nicholls v. Stretton, 10 Q. B. 346; Reynolds v. Bridge, supra. It may be observed that a covenant not to set up or carry on a business in a district is broken by travelling there for orders: Turner v. Evans, 2 De G. M. & G. 740; Clarke v. Watkins, 1 N. R. 342. (a) With respect to policies of assurance and their assignment, see Precedent LXXV., note (a), infra. PRECEDENT POLICY OF ASSURANCE. 2. Witnesseth: chaser], of the other part, WITNESSETH, that, in consideration of the sum of £- upon the execution of these presents paid by the said C. D. for the purchase of the policy and monies hereinafter assigned (the receipt of which said sum of £ the said A. B. doth hereby consideration, acknowledge), He the said A. B. doth hereby assign unto receipt, the said C. D., his executors, administrators, and assigns, assignment, ALL THAT policy of assurance on the life of him the said parcels, A. B., granted by the Assurance Office, dated &c., for the sum of £, and under the annual premium of , and all monies, bonuses, and additions assured or ney. to become payable by or under the said policy, and the full benefit thereof; AND ALL the interest, claims, and estate clause ; demands of the said A. B., in, to, and upon the said policy, monies, bonuses, and additions, TOGETHER WITH POWER (b) power of attorfor the said C. D., his executors, administrators, or assigns, in the name of the said A. B., his executors, or administrators, or otherwise, to demand, sue for, recover, receive, and give effectual discharges for the said sum of £, and all bonuses and monies which may become payable by virtue of the aforesaid policy of assurance, TO HAVE AND TO HOLD all the said premises herein- 3. Habendum. before expressed to be hereby assigned, unto the said C. D., his executors, administrators, and assigns; AND 4. Covenants by vendor : THE SAID A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D., his executors, administrators, and assigns, that, notwithstanding anything by him the said A. B. done, omitted, or knowingly suffered, the aforesaid policy is now a valid that policy is subsisting policy for the said sum of £, and for all bonuses and additions (if any) which have been added or made thereto; AND THAT, notwithstanding any such thing for right to as aforesaid, he the said A. B. now hath power to assign the said premises hereinbefore expressed to be hereby valid; assign; (b) As to the insertion of a power of attorney in assignments of policies, see ante, Vol. I., p. 408, note, and Bunyon on Life Assurance, pp. 190, 394 (d). PRECEDENT POLICY OF ASSURANCE. not to vitiate policy; Covenants in assignments of policies. Remedy of where covenantor assigned unto the said C. D., his executors, administra tors, and assigns, in manner aforesaid, and free from incumbrances; AND THAT he the said A. B. will not do, omit, or knowingly suffer anything whereby the said policy may become void or voidable (c), or the said C. D., (c) An assignment of a policy of assurance by the cestui que vie should contain an explicit covenant by him that he will not do anything which may vitiate the policy or prevent the assignee from receiving the money: a covenant merely to do all things necessary for keeping on foot an existing policy is not broken by his suicide; though the assignee thereby lose the whole benefit of the policy: Borrodaile v. Hunter, 5 C. B. 639 : S. C. nom. Dormay v. Borrodaile, 10 Beav. 335. Such a covenant may practically prevent the cestui que vie from proceeding to any British colony, or even from leaving Europe; for most of the insurance offices make residence or travelling out of Europe, vitiate a policy; and a court of equity will restrain a man from committing a breach of his covenant. Permission to reside or travel abroad in healthy latitudes may, however, usually be obtained from the office on payment of an increased premium; and a covenant to pay an increased premium which may become payable in the event of the assignee allowing the cestui que vie to go abroad, should be inserted in the assignment. Of course, the assignor of a policy has notice of all its conditions; and will, if he avoid the policy by breaking any of its conditions, be responsible under the ordinary covenant not to vitiate the policy; but where one covenanted that he would appear at any insurance office within the bills of mortality, and enable the covenantee to insure his life, and, in pursuance of his covenant, appeared at an office which subsequently granted to the covenantee a policy containing a condition that the cestui que vie should not go beyond the limits of Europe, it was held that the covenantee ought to have given the covenantor notice that the insurance had been effected on those terms; and that, not having done so, he could not recover damages for the avoidance of the policy by the covenantor quitting Europe: Vyse v. Wakefield, 6 M. & W. 442. But if the covenant be explicit, and the covenantor have notice of the terms of the policy, the covenant will be construed strictly, and the covenantee may enter up a judgment and issue execution against the covenantor for neglecting to keep the policy on foot, notwithstanding he may himself have obtained its renewal: Winthrop v. Murray, 8 Hare, 214. Under the Bankrupt Law Consolidation Act, 12 & 13 Vict. c. 106, s. 178, the assignee of a policy, with a covenant to keep it on foot, may, in the event of the bankruptcy of the covenantor, be admitted rupt. PRECEDENT POLICY OF ASSURANCE. -to pay additional pre curred; assurance. his executors, administrators, or assigns may be prevented from receiving any of the monies intended to be thereby assured, or any bonus or addition thereto; AND THAT if he the said A. B. shall do, omit, or suffer anything whereby any additional premium or payment shall become payable for keeping on foot the said policy, then miums if inhe the said A. B. will at all times duly and punctually pay such additional premium or payment so as to keep the said policy on foot; AND FURTHER, that he the said A. B., for further and every person having or lawfully or equitably claiming any interest, claim, or demand in, to, or upon the said premises or any of them, through or in trust for him, will at all times, at the cost of the said C. D., his executors, administrators, and assigns, execute and do every such assurance and thing for further or more perfectly assuring the said policy and premises unto the said C. D., his executors, administrators, and assigns, and enabling him and them to obtain possession of and quietly enjoy the said monies, bonuses, and additions, as by him or them shall be reasonably required (a). IN WITNESS, &c. to claim against his estate in respect of the contingent liability: see further on the above points, Bunyon on Assurance, pp. 191 et seq. 395 (a); and if the covenantee do not prove his debt in bankruptcy, the certificate of discharge in bankruptcy is no bar to an action on the covenant to pay the premiums becoming due after the bankruptcy, or to repay the covenantee what he may have paid to keep the policy alive, in default of the bankrupt paying the premiums: Warburg v. Tucker, E. B. & E. 914: see further on this subject, section 2 of the Introduction to Part 2 of this Vol. (a) As to covenants for title to chattels, see Aulton v. Atkins, 25 L. J. C. P. 229. VOL. II. M M |