GOODWILL AND STOCK IN TRADE. -and to confirm acts of purchasers. (except such debts as are entered, and now appear to be due or owing in the said books kept by the said A. B. for that purpose, and which have been delivered by the said A. B. to the said C. D. and E. F., as aforesaid), and that all the debts which by the said books of account appear to be due to the said A. B., and also all other the debts, the securities for which have been delivered over by the said A. B. to the said C. D. and E. F., as aforesaid, are justly due and owing to the said A. B., and that the said contracts and orders hereinbefore assigned are subsisting contracts and orders, and in nowise vacated or countermanded, and that he the said A. B. hath not at any time heretofore assigned, released, discharged, or received any of the said debts, effects, and premises, or done any other act whereby or by reason or means whereof the same may be impeached, charged, or incumbered, in anywise howsoever: AND that the said A. B., his executors or administrators, shall and will justify and allow, ratify and confirm all and whatsoever the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, or their or any of their substitutes, shall lawfully do or cause to be done in or about the premises, AND shall and will from time to time ther assurance. and at all times hereafter, at the request and costs and charges of the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, make, do, and execute all or any such further and other acts, deeds, matters, and things, for the further and better empowering and enabling the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, to recover, receive, and get in all or any of the goods, ware, merchandise, stock in trade, debts, effects, and premises hereinbefore assigned, or expressed and intended so to be, as by the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, or his or their counsel in the law, shall be lawfully and reasonably devised and required: AND ALSO, curing to pur- all such acts and things as shall be necessary for putting the said C. D. and E. F. in possession of the full benefit of the said goodwill hereinbefore assigned or intended so to be, -and for fur -and for se chasers the benefit of the goodwill GOODWILL AND STOCK IN TRADE. by introducing and recommending them to the customers and connexions in business of the said A. B., as by the said C. D. and E. F., or either of them, shall be reasonably required (i) AND MOREOVER, that he the said A. B., his and not to (i) This covenant should never be omitted in the assignment of a goodwill; for "good-will" is a term so vague in its meaning, that, unless there be some description of the acts to be done to give effect to the assignment, it is difficult for the purchaser to obtain any relief against the vendor for non-performance of the contract. (Bozon v. Farlow, 1 Mer. 459). It is proper, too, to fix a sum as liquidated damages for breach of the covenant. (See Shackle v. Baker, 14 Ves. 468; ante, pp. 111, n. (e), 134, n. (r).) There is no doubt that a goodwill is a subject of sale, and an article of property which may be bequeathed, and is assets in the hands of a personal representative. (1 Nev. & Per. 814; Giblett v. Reade, 9 Mod. 459; Worral v. Hand, Peake, N. P. C. 74; Coslake v. Till, 1 Russ. 376; Dakin v. Cope, 2 Russ. 170). A contract for the sale even of a professional business, with a covenant to recommend the purchasers to the connexion of the vendor, is valid; (Bunn v. Guy, 4 East, 190); although Lord Eldon doubted whether professional men could be recommended for a sum of money paid, instead of for skill and knowledge in their profession. (1 Jac. 231). A person, however, who contracts to purchase a goodwill, is left to his remedy at law, and will not be entitled to have a specific performance enforced by a decree of a court of equity, at least when there is no agreement between the parties corresponding to the covenant in the text. (Bozon v. Farlow, 1 Mer. 459). And it has been said, that in no case will a court of equity compel the specific performance of a contract for the sale of a goodwill. (Baxter v. Conolly, 1 Jac. & Walk. 580; Coslake v. Till, 1 Russ. 376; see, however, Dakin v. Cope, 2 Russ. 170). In one case, in which there was a stipulation, that the vendor should use his endeavours to secure the goodwill to the purchaser by circular letters and other usual means, the Court decreed the specific performance of the agreement to sell the goodwill of a trade, and the exclusive use of a secret connected with it. (Bryson v. Whitehead, 1 Sim. & Stu. 74). With respect to the exclusive use of a secret of trade, see ante, p. 187, n. (d). (Green v. Folgham, 1 Sim. & Stu. 398; Carte v. Grebye, 2 Keen, 581). In an agreement for the sale of a goodwill of a public-house, time is of the essence of the contract; (Coslake v. Till, 1 Russ. 376); but although the purchaser be decreed to perform the agreement, he cannot be made answerable for the trade carried on between the day in which the purchase ought to have been completed, and the day on which it was completed; and he cannot be compelled to take new stock in trade, which had been substituted for the old. (Dakin v. Cope, 2 Russ. 170). revoke power or release debts. Validity and means of enforcing a sale of a goodwill. GOODWILL AND STOCK IN TRADE. Witnesseth, venants by pur chasers. executors or administrators, shall not nor will revoke or make void (k) any of the powers or authorities hereby given to the said C. D. and E. F., or either of them, or their or either of their executors or administrators, or their or any of their substitutes, nor compound, release, or discharge any of the debts, effects, or premises hereinbefore assigned or intended so to be, nor compound, release, avoid, or become nonsuit in any action or suit which may be brought, commenced, or prosecuted, for or in respect of the same or any part thereof, nor do any act or thing whereby or by means whereof the recovery of the same premises or any part thereof may be impeded, delayed, or prevented, nor interfere nor intermeddle with the same premises further or otherwise than the said C. D. and E. F., their executors, administrators, or assigns shall direct or require : AND THIS INDENTURE FURTHER WITNESSSecondly, co ETH, that, for further effectuating the said arrangement, and in consideration of the premises, they the said C. D. and E. F. do for themselves, their heirs, executors, and administrators, and each of them doth for himself, his heirs, executors, and administrators, hereby covenant with the said A. B., his executors and administrators, that they the said C. D. and E. F., or one of them, their or one of their heirs, executors, or administrators, shall and will, with all convenient speed, well and truly pay or cause to be paid all and every the debt and debts and sum and sums of money due and owing from or by the said A. B., and which appear in the said books of account so delivered by the said A. B. to the said C. D. and E. F. as aforesaid, to be so due or owing from or by the said A. B.: AND shall and will save, defend, keep harmless and indemnified the said A. B., his heirs, executors, and administrators, and his and their estates and effects, of, from, and against all costs, charges, losses, damages and expenses which shall or may be sustained or incurred, or which may become payable for or by reason or means of the non-payment of the said debt or sums of money, or any of them, or any part -to pay trade debts. --and indemnify vendor. (k) See supra, n. (ƒ). GOODWILL AND STOCK IN TRADE. ment of debts so long as he is indemnified. thereof, or for or by reason of any action, suit, account, reckoning, claim, or demand, which shall or may be brought or prosecuted in the name of the said A. B., by virtue of or under any power or authority hereby given, or in pursuance hereof to be given, to the said C. D. and E. F., or either of them, their or either of their executors, administrators, or assigns, or any other person or persons: PRO- Vendor not to VIDED ALWAYS, and it is hereby agreed and declared require paybetween and by the parties to these presents, that the said A. B., his executors or administrators, shall not be entitled to require payment of the debts hereinbefore covenanted to be paid by the said C. D. and E. F., with all convenient speed as aforesaid, or any of them, so long as the said A. B., his heirs, executors, and administrators, and his and their estates and effects, are indemnified and saved harmless, according to the true intent and meaning of the covenant last herein before contained (1): AND FOR FURTHER effectuating the said arrangement, he the said A. B. doth hereby for himself, his heirs, executors, and administrators, covenant with the said C. D. and E. F., their executors and administrators, that he the said A. B. will not at any time or times hereafter, at any place or places within twenty miles (1) A proviso to this effect should always be inserted, unless it be intended that the covenantor should immediately pay the debts. For where a person sold an estate which was charged with annuities, but which he was not personally liable to pay, and took a covenant from the purchaser to pay the annuities and indemnify the vendor against them, it was held that the vendor could sustain an action for non-payment of the annuities without shewing that he had been damnified by the non-payment. (Saward v. Anstey, 2 Bing. 519; S. C. 10 J. B. Moore, 55). And of course if there be simply a covenant to pay, and no covenant to indemnify, the covenantee can enforce immediate payment. (Lethbridge v. Mytton, 2 B. & Ad. 772). So, too, where in a deed an agreement was recited that A. B. should convey certain estates to C. D., and that C. D. in consideration thereof should pay certain debts, and accordingly a conveyance of the estates was made, and C. D. covenanted to indemnify A. B. against the debts; it was held, that the covenant must be construed as a covenant not merely to indemnify against, but also to pay the debts. (Carr v. Roberts, 5 B. & Ad. 78; see, too, Huntley v. Sanderson, 1 Cro. & Mee. 47). Covenant by carry on trade within a spe vendor not to cified distance. Covenant to pay not qualified by a covenant to in demnify. GOODWILL AND STOCK IN TRADE. Restraints on trading. What con sideration ne port. When reasonable. of street aforesaid, either solely or jointly with, or as (m) It has long been well settled that voluntary restraints on trading by agreement between parties, if they amount to a general restraint of trading by either party, are void; but particular restraints of trading, if made upon a good and adequate consideration, and so as the restraint be reasonable, are valid. (Mitchel v. Reynolds, 1 P. Wms. 181; in which all the earlier cases are cited). It seems, too, to be settled, that the consideration required is simply a good and valuable consideration, such as cessary to sup- would support a contract not under seal, and that the Court will not go into the question whether it be adequate in value. (Hitchcock v. Coker, 1 Nev. & Per. 796; Leighton v. Wales, 3 Mee. & Wels. 545; Archer v. Marsh, 2 Nev. & Per. 562). But the question, what is a reasonable restraint, has given rise to much litigation. The test to be applied is the consideration, whether the restraint imposed is such only as to afford a fair protection to the interests of the party in favour of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and if oppressive, it is in the eye of the law unreasonable. Whatever is injurious to the interests of the public is void on the grounds of public policy. (7 Bing. 743). A restraint against trading in a particular place, or within a given distance from it, is reasonable; (Mitchel v. Reynolds, ubi supra; and cases infra). But the distance which will be deemed reasonable cannot be precisely laid down, and varies with the nature of the trade. (7 Bing. 743, 744). Thus, a restraint on trading as a baker within a particular parish is good. (Mitchel v. Reynolds, ubi supra). It has been decided, that ten miles from a particular place is a reasonable distance in the case of a surgeon; (Davis v. Mason, 5 T. R. 118); and twenty miles in the case of an apothecary. (Haward v. Young, 2 Chit. 407). One hundred miles is unreasonable in the case of a dentist; (Horner v. Graves, 7 Bing. 735); but 150 miles is allowable in the case of an |