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The case of The Wild Ranger, 32 L. J., Adm. 49 (1862), arose out of a collision on the high seas between the American ship Wild Ranger and the British ship Coleroon. The Wild Ranger was held solely to blame for the collision. The owners of that ship thereupon claimed a limited liability not only under the act of Parliament, but also under the act of Congress of 1851. It does not appear to have been alleged in the bill that the benefit of the latter act was extended to foreigners, although that position was taken in the argument.

Dr. Lushington said that the first question was as to the right of the owners of the American ship, under the circumstances of the case, to the benefit of section 504 of the Merchant Shipping Act of 1854, and that it was not directly governed by any decided case. He referred at length to the opinion of Lord Stowell in The Carl Johann, as cited in 3 Hagg. 186, to the effect that if Sweden adopted such a rule as the British statute it would apply to both countries, and said: "Now, if that presumption is to be taken as true, as laid down by Lord Stowell, it certainly goes a very considerable length in supporting the claim which has been preferred to limited liability on the present occasion. But I cannot assent to that opinion, nor do I believe, that if that case had been fully reported, Lord Stowell meant in reality to lay down, for the reasons I am about to state, any such doctrine at all; but I at once think it right to say most distinctly that to that doctrine I cannot assent."

After reviewing the previous decisions he said: "It is right to bear in mind the position of Lord Stowell it is undenied on all hands - viz., that the ancient law was that of unlimited liability; and then the question arises, by what authority that ancient law can be altered, and whether it has been altered by any authority which the court is bound to obey. * * * I know of no authority- and I apply this observation more particularly to what is said to have fallen from Lord Stowell in the case of The Carl Johan- by which the ancient law could be changed save by an act of Parliament.

"Now as to the statute in question and the 504th section of it (see § 4283, U.S. Rev. Stats.), it is obvious that this section refers, or may refer, to collisions on the high seas; and upon the present occasion the collision in question took place upon the high seas. The presumption of law, as established by the case of Cope v. Doherty, is that the British Parliament never intended to legislate for foreigners on the high seas. Now what difference does it make that the collision took place with a British ship? How can it be said that the statute shall be so construed that limited liability shall be refused to the wrong-doer of two foreign ships and granted to the wrong-doer of one foreign ship in collision with a British vessel? There is nothing whatsoever in the statute itself that I can discover which sanctions or even permits such mutable construction. The statute applies to all foreign ships on the high seas or to none. To draw a distinction between the collision of a foreign ship with a foreigner, or with a British ship on the high seas is, so far as the construction of the statute is concerned, purely arbitrary. On what ground can such a proposition be maintained? On the ground that if cæteris paribus, the British ship had been the delinquent, her owner would have been entitled to unlimited liability? On this point let me advert to The Iron Screw Co. v. Schurrman. ViceChancellor Wood says: 'I still adhere to the opinion which I expressed in Cope v. Doherty, that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by any act of the British Legislature;' so that a foreign ship meeting a British ship on the ocean, and the British ship being to blame, no limited liability can be claimed by the British ship if the opinion of Vice-Chancellor Wood

be correct.

The actual case has not occurred, so there is no need for me to express any opinion upon it. There is no authority whatever for the construction of the statute now prayed.

"It is right, however, that I should notice the argument founded upon the doctrine of reciprocity. It is said that the United States have passed a law whereby in cases of collision, the delinquent ship or its owner, being British, is entitled to the benefit of limited liability; that therefore this court ought in a similar case occurring here to an American vessel, to grant the same privilege. Now this is apparently a very equitable proposition to do as you have been done by. But consider what this court is asked to do. By the ancient law this court was bound to enforce liability to the extent of the injury. How was this law altered? By act of Parliament in certain cases. True; if the statute empowers me to grant the application, well and good; if it does not, I want to know by what authority I could do so. Can it be contended that the act of Parliament - my sole authority for limited responsibility

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is of that flexible nature that it does not authorize me to permit limited liability in any case of given circumstances per se; but if you had the fact that the nation to whom the suitor belongs ordains limited liability, I am to put a different construction upon the words of the statute itself? I am utterly at a loss to conceive how such a proposition can be maintained. The Instance Court of Admiralty is a municipal court. It is widely distinguished from a court of admiralty acting under a prize commission. In the latter case there is a much wider discretion and greater powers are conferred. But in the Instance Court what anthority have I to deal with an act of Parliament beyond carrying it into execution according to its legitimate construction? And such, in my opinion, is my sole duty. But were I disposed to part from this positionand assuredly I am not-would either the authorities or the facts support me in so doing?

"In my argument I have assumed that the American law would give limited liability to a British vessel if placed in similar circumstances in an American court. I have assumed the American law to be so, but I must not be understood to have declared an opinion that such law has been clearly and satisfactorily proved in this case.

"I am under the necessity of refusing this application."

In General Iron Screw Collier Company v. Schurmanns, 1 Johns. & Hemm. 180 (1860), the plaintiffs were registered owners of the British ship William Hutt, which came into collision with the Dutch ship Sophie, owned by natives of Holland, about two and a half miles from Dungeness Point. The plaintiffs claimed a limited liability, it having been adjudged in admiralty that their vessel was solely in fault.

Vice-Chancellor Wood, in his judgment, cited with approval the opinion of Dr. Lushington in the case of The Zollverein, that "the power of this country is to legislate for its own subjects all over the world, and as to foreigners within its jurisdiction, but no further," and said, "that is a very neat and precise statement of the principle on which acts of the Legislature ought to be interpreted." P. 192.

"With respect to foreign ships I still adhere to the opinion which I expressed in Cope v. Doherty-that a foreign ship meeting a British ship on the open ocean cannot properly be abridged of her rights by any act of Parliament." P. 193.

He then refers to the principles established in the law of nations that for certain purposes every country may legitimately exercise jurisdiction over the high seas within three miles from its shores, and says, that in dealing with so large a subject as that embraced in the Merchant Shipping Act, the natural desire of the Legislature would be to exert all the jurisdiction which it

could assert with a due regard to the rights of other nations; that the jurisdiction within the three-mile limit lawfully extended to the subject-matter of the 504th section of the act. He appears to have conceded that the benefit of that section did not extend to a foreign ship within the three-mile limit, and to the objection of this want of reciprocity he answered that if the matter were duly brought to the attention of the Legislature some enactment might possibly be passed to remedy the alleged grievance. "On the other hand it is important to look at the declared object of all this series of statutes, namely, the advancement of British shipping and the encouragement of commerce; and certainly the benefit of limited liability would be greatly diminished if the act were held not to apply to a collision between British and foreign ships in that portion of the sea within three miles of the shore, where collisions would be most likely to occur." J. F. MOSHER.

NOTICE BY MAIL OF DISHONOR OF BILL.

NEBRASKA SUPREME COURT, JULY 21, 1880.

FORBES V. OMAHA NATIONAL BANK.

Where an indorser or other person entitled to notice of the dishonor of a negotiable instrument resides within the same post-office delivery with the one whose duty it is to give the notice, then the notice must be served or left at the residence or place of business of the one entitled to it, and the notice can be sent by mail only in case the one to be notified resides nearest to or is in the habit of receiving his mail inatter at another post-office than the one from which such notice is sent.

ACTION upon a promissory note, by the Omaha

National Bank against R. M. Forbes and another. Sufficient facts appear in the opinion. From a judgment in favor of plaintiff below a writ of error was taken.

George W. Doane, for plaintiff in error.

E. Wakeley, for defendant in error.

COBB, J. Several questions are presented by the record in this case, but as one of them appears to me to quite overshadow the others in point of importance, and the conclusion reached in its examination being decisive of the case, I deem it unimportant to consider the others. The District Court found that the said Samuel Hawver and R. M. Forbes were respectively duly notified of such presentment, non-payment, and refusal, and that the plaintiff would look to them respectively for payment of the same, with damages and costs; that at the time of such presentment and notification the said R. M. Forbes resided about one mile or one and a quarter miles outside of the corporate limits of the city of Omaha, in the State of Nebraska, where the said bank was situated and did business and said draft was payable, and where the notary hereinafter mentioned resided, and that said R. M. Forbes had no regular or usual place of business in said city; that the post-office at which he then obtained his mail was the post-office in the city of Omaha, which was the nearest post-office to his residence, and about three miles therefrom; that on the evening of October 23, 1871, when the note was presented for payment, one William Wallace, a notary public and agent of the plaintiff's bank, deposited in the post-office at Omaha notice in due form of the presentment and dishonor of said draft, and that plaintiff would look to him for payment thereof, directed to the said R. M. Forbes, at the post-office in Omaha, with the postage thereon paid."

Thus, while the court finds that the said Samuel Hawver and R. M. Forbes were respectively duly

notified of such presentment, non-payment, refusal, etc., it does not fail to put us in possession of the facts upon which it bases such finding, so far as the plaintiff in error is concerned, and the question whether such facts do sustain the finding that the plaintiff in error was duly notified, is in my opinion the controlling one in this case.

While the evidence of the fact of the depositing of the notice in the post-office is not by any means clear, yet as the same was deemed sufficient by the trial court, I will confine my examination to the question whether such fact, taken in connection with the collateral facts and circumstances surrounding this case, constitutes legal notice. This question has often been before the courts of several of the States of the Union, and once before the Supreme Court of the United States. It has not been previously brought before this court, and as the views and decisions upon it of the several State and Federal courts are altogether conflicting and irreconcilable, this court should be free to decide it in this case as may seem most likely to meet with the ends of justice, and at the same time establish a precedent the least liable to lead to unfairness or abuse.

The question may be fairly stated thus: whether, where the drawer or indorser of a draft, note, or bill of exchange resides outside of the corporate limits of a city or village, which is the place of dishonor of such draft, note, or bill of exchange, but nearer to the postoffice in such city or village than to any other postoffice, notice of the dishonor of such draft, note, or bill of exchange can be legally given to such drawer or indorser by depositing the same in such post-office, directed to such drawer or indorser.

In the case of Ireland v. Kip, which was twice before the Supreme Court of New York (10 Johns. 490, in 1813, and 11 id. 231, in 1814), it was held that where the indorser to be charged resided at Kip's Bay, within the corporate limits of New York city, but outside of the compact portion of the city, and where the letter carriers did not deliver letters, but had a place of business on Frankfort street, within the compact part of the city, where he had directed the letter carriers to leave all of his letters, and the notice of dishonor was put into the post-office in New York city, directed to the indorser, at his place of business on Frankfort street, the same was not sufficient notice of the dishonor of the bill to charge the indorser. In the opinion the court uses this language: "The invariable rule with us is that when the parties reside in the same city or place, notice of the dishonor of bills or notes must be personal, or something tantamount, such as leaving it at the dwelling-house or place of business of the party, if absent. If the party to be served by a notice resides in a different place or city, then the notice may be sent through the post-office to the post-office nearest the party entitled to the notice."

The authority of this case has never been shaken. But unfortunately, when the courts came to apply it to cases like the one at bar they separated widely; the Supreme Courts of New York, Connecticut, Massachusetts, Maine, Louisiana and Tennessee holding in effect that the words "city or place," as used by the court in Ireland v. Kip, should be understood as meaning the place in fact rather than in law, and that the indorser or maker, entitled to notice of dishonor, must be served personally, or by leaving the notice at his residence or place of business, unless he resides nearer to some other post-office, in which case notice may be sent to him by mail. Say the court, per Bronson, J., in Babcock v. Benham, 4 Hill, 129, "the post-office is not a place of deposit for notices to indorsers, except when the notice is to be transmitted by mail to another office." In Ransom v. Mack, 2 Hill, 587, the same judge, in delivering the opinion of the court, uses the following language: "The corporation limits of our

cities and towns have, I think, less to do with this question than the mail arrangements of the general government and the business relations of our citizens. Whether mail service is good or not, does not depend upon the inquiry whether the person to be charged resides within the same legal district, but upon the question whether the notice may be transmitted by mail from the place of presentment or demand to another post-office, where the drawer or indorser usually receives his letters and papers."

In the case of Shelburne Falls National Bank v. Townsley, 102 Mass. 177, decided in 1869, Ames, J., delivering the opinion of the court, says: "The letter was left at the post-office, not for the purpose of being transmitted by mail to any other town or post-office, and not to go into the hands of any official carrier charged with the distribution of letters at the dwellinghouses and places of business of the inhabitants of the vicinity; on the contrary, it did not go into the mail at all, but was simply deposited in the Shelburne Falls post-office, to remain there until called for by the defendant. We do not find that any case has gone so far as to decide that notice through the post-office may be given in the same manner and with the same allowance of time, where both parties reside in one town or resort to the same post-office, as where they reside in different towus communicating with each other by regular mails.

"There may be but very little practical difference in this subject between letters left for deposit and those left for transmission; but we do not feel at liberty, for such considerations, to disregard distinctions, even though they appear somewhat arbitrary, or attempt to improve rules that have become settled by judicial decisions and the usage of business * *. In the instructions which were given to the jury these distinctions appear to have been overlooked, and they may have given their verdict under the impression that a drop-letter, left at the post-office after the close of the business day on the 11th, and not likely to be received until the 12th, would be reasonable notice, even though the plaintiff bank had received the same as early as the 10th. In other words, that the rule as to post-office notifications, where both parties reside in the same town or village, and resort to the same postoffice, and whero no system of distribution by letter carriers has been established, would be the same as if they lived in separate towns, having regular communication by mail. Upon this point, therefore, the defendant's exceptions must be sustained." In the case of State Bank v. Rowell, 6 Martin (N. S.), 267, the Supreme Court of Louisiana, by Porter, J., who delivered the opinion, say: "The case has been well argued, but the reasoning of the counsel, in our opinion, rested entirely on an incorrect view of the obligation contracted by an indorser of instruments of this kind. The obligation which such an act creates is strictly a conditional one, and that condition is that he will pay the money in case the maker does not, provided due notice is given to him of the default of the former. By the lex mercatoria this fact must be proved by establishing that knowledge of the failure of the principal to pay was communicated personally to the indorser, or that information to that effect was left at his house. A relaxation of this rule has been introduced for the convenience of trade. When the indorsers live at such a distance that their residence is nearer another post-office than where the holder lives, in such cases it is sufficient to send by mail a notice directed to the indorser."

All of these cases, and many others cited in the brief of counsel, seem to hold that where the person whose duty it is to give the notice, and the one to be charged by the notice, both reside within the same post-office delivery -a term well understood in this country — then the notice must be served personally, or left

at the residence or place of business of the person to be charged, and that the post-office can only be resorted to in cases where the person to be notified resides nigher to, or is in the habit of receiving his mail matter at, another post-office, to which the notice may be sent by mail; and this I believe to be the correct rule. It is true that there are many decisions the other way, and as a question of authority, it would be one quite difficult to decide. The Supreme Court of the United States, and those of Pennsylvania, Indiana, Missouri, and as is claimed, South Carolina, have held to the contrary, that when the person to be notified resides outside of the legal limits of the town, city or village where the party giving the notice resides, but nigher thereto than to any other post-office, or is in the habit of resorting to the post-office in such town, city or village for mail matter, then the notice may be legally served on him by depositing the same in such post-office, directed to the person to be notified at the post-office where the same is deposited.

In enumerating the States where this question has been decided either way, I do not include Kentucky, because that State is about equally divided on the question; the former view having been taken by the old Supreme Court, presided over by Chief Justice John Boyle, in 1832, and the latter by the Supreme Court of that State in 1858, in an exhaustive opinion by Judge Stiles. Nor do I include Mississippi, where the question has been several times before the Supreme Court, and where, unfortunately, the holdings have not been uniform. But their two latest, and I think, best-reasoned cases, follow New York, Massachusetts, etc. But all the cases, as well those which hold the latter as the former view, agree in this: that where the person to be notified resides in the same city or village with the person whose duty it is to give the notice, then notice cannot be given through the postoffice.

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Having carefully examined all the cases cited by counsel I have failed to find any sufficient reason, or indeed any reason, for a distinction in this respect between persons residing within the city or village limits and those who, though living outside of such limits, are within the post-office delivery. Had this court the power to change the law it might be worth considering whether it would not be well to provide that all notices might be served through the post-office; but were any change in that direction contemplated, certainly no one would think of excluding from its operation only those who, from the contiguity of their residence to the post-office, as well as from the nature of their business pursuits, are the most unlikely to be incommoded by such change. Those inhabitants of a city or village who are at all likely to draw or indorse commercial paper, generally keep themselves in daily intercourse with the post-office, and when not absent from home would nearly always receive a notice posted to them at their own post-office the same or the next day. But this cannot be said of those who live in the country. They, as a rule, seldom go to the post-office oftener than once a week to receive their weekly newspaper, or less often, as called for by the needs of family correspondence. Persons thus situated would not generally receive a notice of protest through the post-office in time to answer the purpose for which notices are required, to wit, to give the indorser or drawer a fair start with others in pursuit of the property of a defaulting principal. Again, the inhabitants of cities and villages who draw or indorse commercial paper, are, as a rule, business men, who do it as a part of their regular business, and carefully note and watch the dates of the maturity of such paper, and whether or not it is duly honored. While many farmers and other inhabitants of the country are in the habit of becoming accommodation indorsers for business men, they keep no dates, but rely confidently on their prin

cipal to protect their paper. To such, a prompt and certain notice of dishonor often may save them from ruin.

It is true that the rule is well settled that where the person entitled to notice resides far away from the place of dishonor, that his place of residence is nearer to another post-office, or where he habitually resorts to another post-office for mail matter, theu notice may be sent him by mail. This arises from the nature and necessities of the case; and besides, it is a fair presumption, where a person draws or indorses commercial paper payable at a distant bank or place, that he thereby impliedly agrees to receive notice of its dishonor through the post-office- the usual channel of❘ communication between distant points. But not so an indorser of paper payable at a bank situated within his own post-office delivery.

In most of the cases where the courts have come to a conclusion different from that which I have been able to reach in an examination of this question, they give as a controlling reason for such conclusion that to require personal notice, or its equivalent, to indorsers residing outside the limits of cities and villages, would be to lay an additional burden on the holder. I am unable to accord much weight to their reason. Notaries' fees for protest and notice, and including mileage, follow the protested paper, and the costs of sending a notary or special messenger to serve a notice anywhere within the delivery of any post-office in the settled portion of the country would be but trifling compared to the amount generally involved, and I think it affords a fair application of the maxim, de minimis non curat lex.

As to the point that although the plaintiff in error may not have been legally notified, he afterward waived such notice, I have only to say that no such waiver was found by the District Court, and had it been I do not think that there was sufficient evidence to have sustained it.

The judgment of the District Court is therefore reversed and a new trial ordered.

Reversed and remanded.

SALE OF BUSINESS AND GOODWILL.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, MARCH 5, 1880.

GINESI V. COOPER, 42 L. T. Rep. (N. S.) 751. Upon the sale of a business and goodwill, it was agreed that

the purchaser should be at liberty to use the name or style of the vendors for a period of two years. After the expiration of the two years the vendors recommenced business under a similar name or style to that under which they had carried on the business they had sold, and also solicited their former customers. Held, that they must be restrained from soliciting or in any way endeavoring to obtain the custom of their former customers. Semble, that they might also be restrained from dealing with their former customers. Crutwell v. Lye, 17 Ves. 335, observed upon.

MOTION. The plaintiff, Mr. Samuel Ginesi, about the

month of September, 1877, entered into an agreement for the purchase at the price of 6,000l., of the trade and goodwill of the business of stone merchants belonging to Samuel Cooper and John Hampson, and carried on by them at Clarence Wharf and Swan lane, Rotherhithe, under the name or style of “Cooper & Hampson." This agreement was contained in letters which passed between the parties, but on the 12th November, 1877, the defendants entered into an agreement under seal, by which, after reciting that they had contracted with the plaintiff for the sale to him of their trade or business as stone merchants, it was agreed that the plaintiff should have the exclusive right of

carrying on the business or trade of a stone merchant at Clarence Wharf and Swan lane, Rotherhithe, under the name or style of "Cooper, Hampson & Co.," during the period of two years from the 29th September, 1877, and afterward use the name in connection with his own, so as to show that he was carrying on their business.

On or about the expiration of the period of two years the defendants recommenced business as stone merchants in King William street in the city of London, and solicited their former customers by letter, and otherwise endeavored to resume their former business, as appears in the facts sent out in his lordship's judgment.

The plaintiff brought this action for an injunction to restrain the defendants, their servants, etc., from soliciting or in any way endeavoring to obtain the custom or orders for goods similar to those dealt in by the defendants, before the sale of their business to the plaintiff, from such of the plaintiff's customers as were customers of the old business sold by the defendants to the plaintiff, or from attempting to take away any portion of the business purchased by the plaintiff from the defendants.

Davey, Q. C., and J. H. Boome, for plaintiff.

Martin, Q. C., and C. Mitchell, for defendants. We have a good right to set up in the same neighborhood a new business similar to that which we have sold to tho plaintiff, unless it has been expressly stipulated to the contrary. Cruttwell v. Lye, 17 Ves. 335; Churton v. Douglas, 33 L. T. Rep. (O. S.) 57; Johns. 174; Labouchere v. Dawson, 25 L. T. Rep. (N. S.) 894; L. Rep., 13 Fq. 322; Hudson v. Osborne, 39 L. J. 79, Ch.

JESSEL, M. R. Lord Justice James has said that the command "Thou shalt not steal," is as much a portion of the law of courts of equity as it is of courts of law. I proceed to consider the proposition, which, as I understand it, has been gravely argued before me. The facts are these: Two traders in London of considerable business, of the names of Cooper & Hampson, had carried on the business of stone merchants for a long time at three places of business, namely, Clarence Wharf, Rotherhithe, the Midland Railway, St. Paucras, and the Great Northern Railway, King's Cross, where they had what they called depots, and had established a valuable business as stone merchants, having formed a considerable connection. A gentleman of the name of Ginesi, who appeared to be a Yorkshireman, came from Leeds and wanted to buy this business. Negotiations then took place by letter, in which the defendants said, "You must pay us for the goodwill quite independently of the wharf and the stock in trade and every thing else." There was in fact a long negotiation, and that long negotiation ended in this Yorkshireman paying upward of 6,000l. for the goodwill, independently of paying a large sum of money for the stock-in-trade and so forth. Thereupon an agreement was made as to the use of the name, and the agreement recites that the defendants have sold the trade or business of stone merchants. Then there was an agreement that the purchaser should have the exclusive right of using the name for two years, that is to say, the name of Cooper, Hampson & Co., and after the two years that he might be described as the successor of Cooper, Hampson & Co., and that he was not to make Mr. Cooper or Mr. Hampson liable as partners; and that is all. Then when they had sold the business, in the month of November, 1877, they sent round circulars to their customers in these terms: "Dear sir. We beg to inform you that we have transferred our business with the whole of our stock and plant to Mr. Samuel Ginesi, of Leeds" (that is, the business and stock-in-trade), "who will carry on the trade in all its branches as heretofore, under the style

or firm of Cooper, Hampson & Co. We take this opportunity of very kindly thanking you for your patronage and support with which we have been favored for many years, and recommend our successor, who has had a great experience in the stone trade, and we have no doubt but he will give you every satisfaction by prompt and careful attention to all inquiries and orders intrusted to him." That was sent round to the customers, and then they sent round another circular to the customers, which is signed by both of them that last one was signed by Cooper & Hampson: "We beg to inform you that we have retired from business, and that our successor is Mr. Samuel Ginesi, of Leeds, who will carry on the business in all its branches as heretofore, under the style or firm of Cooper, Hampson & Co. We thank you for your kind attention to our orders, and trust the same courtesy will be extended to Mr. Ginesi as we have at all times received at your hands." Thereupon Mr. Cooper and Mr. Hampson do retire from business, and do not carry on business as stone merchants, at all events for two years. At the end of the two years Messrs. Cooper & Hampson were desirous of re-entering business. It seems that the old business had been carried on under the name of Cooper & Hampson, while it ought to have been carried on under the name of Cooper, Hampson & Co.; I suppose through some of the customers writing letters addressed to Cooper & Hamp

son.

It also appears that both Mr. Cooper and Mr. Hampson were perfectly well aware of the value of their connection as stone merchants, that is the connection which they had acquired, because they asked for this large amount on the ground that their goodwill was not as other goodwills, and which they themselves designate in one of their letters as "bad wills," but a very good goodwill indeed; such a value was attached to their connection that they thought it necessary to ask this large amount for it. They do not suggest for a moment that if they change the wharf there is any thing attached to the wharf, or that they could not carry on the business next door or farther up. It is not like the case of a public house where the business has been carried on in a particular house. This is the case of a connection. It is the case of stone merchants who have a good connection (both in buying and selling; and in fact that is what they sold for 6,000l. Now the first question which I should have thought might have been put to Messrs. Cooper and Hampson, who are not here- and perhaps it is fortunate they are not-is whether they thought they had any right, as their counsel represents at the bar, to set up in business the day after at a wharf next door, and solicit the customers of the old firm to continue to deal with them. I am satisfied that no man could convince his brother commercial men that he was an honest man who pursued such a course of conduct as that. That being so, they did not have the right to set up the next day, as was argued by counsel, and of course they could not have a right to set up after two years. I am at a loss to account on any charitable view for Mr. Cooper's conduct, or to find a motive which induced him to act in the way he has done. After the two years had expired he did this. It seems that there was some private letter of his which in some way or other had got to the wharf. By some mistake it was sent there, and thereupon, as I understand it, a notice was sent to the post-office, who accordingly send to him the regular notice, which he fills up and returns to the post-office. That is how I understand the evidence, and the notice is as follows: "Notice of removal to the Postmaster: I request that any letters, &c., addressed to me or to Cooper & Hampson, at Clarence Wharf, Rotherhithe, may be redirected to Fair Lawn, Hayward's Heath, Sussex. (Signature) Samuel Cooper. Cooper & Hampson." He must have known that the letters then addressed

after two years to Cooper & Hampson at the wharf were letters containing orders or other communications relating to the plaintiff's business, and that if the request contained in this form were complied with, he would have got the letters intended for the plaintiff. It is my opinion that he knew it full well. He has not given any explanation in his affidavit; the explanation offered by his counsel is that he thought after two years he might resume the business. As I said before, in the absence of an affidavit, I could not believe that he really thought so, and I must now add that if he had made an affidavit to that effect I should not have believed it either. Then Cooper & Hampson do this: They start in business as stone merchants, under the old style of Cooper & Hampson. They send a former clerk or manager of theirs, who had been in the service of the plaintiff, to solicit the old customers, that is their customers before they sold the business to Ginesi, and asking them to deal with them. [Davey.— They called themselves "Samuel Cooper & Co."] It is the same firm, although not under the same name; I have got the card before me, and it says "Samuel Cooper & Co." They induce this man, who had taken service, as I said before, with the plaintiff, and was his manager, to act for them, and I am told they got hold of him actually before he had quitted the plaintiff's service, and it is for that conduct that the plaintiff has brought this action, and now seeks at my hands an injunction. In my opinion, having sold the business, the attempt to take it away from the plainttiff in the way I have mentioned is neither a lawful nor an honest attempt, and I consider that I should not be performing my duty in an adequate and proper manner if I hesitated to state for a moment that that was my opinion. Then I am told that there is some authority which compels me to say that men who have sold their business for 6,000l. are entitled to solicit the old customers of the business, and to carry on the old trade which they have sold. I should have been very much surprised if any equity judge had ever laid down any such proposition. The exact contrary was decided in the case of Labouchere v. Dawson. That case is an authority for saying that a man who has sold the goodwill of his business must not solicit the old customers to deal with him; but I go further and say that he must not deal with the old customers. It is not absolutely necessary, perhaps, to decide that on the present occasion, but I state it because I think the proposition should be thoroughly understood as to what the meaning of selling a trade is. The present injunction asked for from me is only to restrain them from soliciting the customers and from taking away the plaintiff's business, which of course must be right anyhow; but if I had been asked, I certainly should have prevented their dealing with the old customers. Now I will look at the authorities which were cited to me. In the case of Churton v. Douglas, Wood, V. C., says: "It was argued that Lord Eldon had laid down the principle that an assignment of the 'goodwill' of a trade simpliciter" (this is where they contracted to sell the trade or the business as well as the goodwill) "carries no more with it than the advantage of occupying the premises which were occupied by the former firm, and the chance you thereby have of the customers of the former firm being attracted to those premises. But it would be taking too narrow a view of what is there laid down by Lord Eldon, to say that it is confined to that. Goodwill,' I apprehend, must mean ‘every advantage-every positive advantage, if I may so express it, as contrasted with the negative advantage of the late partner not carrying on the business himself - that has been acquired by the old firm carrying on its business, whether connected with the position in which the business was previously carried on or with the name of the late firm, or with any other matter carrying with it the benefit of the business." Now I cor

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