GOODWILL TRADE. attorney. (Bunn v. Guy, 4 East, 190). Fifty miles seems to be permissible in the case of a dyer. (Bryson v. Whitehead, 1 Sim. & Stu. 74). AND STOCK IN An agreement by a servant, that she would not, at any time after she had left the service of her mistress, exercise the trade within half a mile of the residence of her mistress, or in any other house, her mistress, her executors, or administrators should move to, was held valid. (Chesman v. Nainby, 2 Stra. 739; S. C. 2 Ld. Raym. 1456; and 1 Bro. Parl. Cases, 234). The agreement may, it seems, extend to more than one place; for, where a person had hired himself for a term, as clerk, book-keeper, and traveller, and afterwards, in consideration of being allowed to deter mine his engagement and enter into partnership with a third person engaged in the same business, agreed not to solicit or take orders in certain specified places at certain times, this agreement was held to be binding. (Homer v. Ashford, 3 Bing. 322; see, too, Kimberley v. Jennings, 6 Sim. 340). And an agreement, by three persons, to divide England into districts, and not to trade in each other's districts, is valid. (Wickens v. Evans, 3 You. & Jer. 318). So, too, an agreement not to be concerned in any coach running from A. to B. is good; and is contravened by being concerned in running a coach from C. to B. through A., C. being a village six miles beyond the town of A. (Williams v. Williams, 2 Swanst. 253; see, too, Leighton v. Wales, 3 Mee. & Wels. 545). And so in the case of stage carriers. (Cruttwell v. Lye, 17 Ves. 335; Wallis v. Day, 2 Mee. & Wels. 273; Archer v. Marsh, 2 Nev. & Per. 562). There is another class of cases, in which the question relates, not to the locality in which the trade is to be carried on, but to the persons for whom and in what manner it is to be conducted. Thus, in Gale v. Reed, 8 East, 80, on a dissolution of partnership between A., B., and C. C. covenanted to employ A. and B. exclusively to make cordage for his friends, but A. and B. were not to be obliged to work for any other than such as they chose to trust; and this covenant was held to be valid, for C. was still at liberty to work for any of his friends whom A. and B. declined to trust, so that the restraint on C. was only coextensive with the benefit to A. and B., and could therefore be of no prejudice to the public trade. But an agreement by A. not to work for any other person than B., without the consent in writing of B., to be obtained on every occasion, with the exception of persons residing in London or within six miles thereof, is unreasonable; unless B. at the same time bound himself to furnish A. with an adequate quantity of work. (Young v. Timmins, 1 Cro. & Jer. 331). But a covenant by A. not to exercise the trade of a carrier in his own right, and to serve during his life as assistant to B. in that trade, B. covenanting to pay him a weekly sum, is valid. (Wallis v. Day, 2 Mee. & Wels. 273). The restriction may be indefinite in point of time. (Hitchcock v. Coker, 1 Nev. & Per. 796; and see 2 Nev. & Per. 568). It has been decided, that a contract with the proprietors of a theatre not to write dramatic pieces for any other, is legal; (Morris v. Colman, GOODWILL 18 Ves. 437); but it appears that Lord Eldon considered this as the case AND STOCK IN of a partnership. (6 Sim. 335, 338). A similar agreement of an author TRADE. Injunction in trade on sale of goodwill. restraint of with a bookseller will not be enforced in equity; (Clarke v. Price, 2 J. Wilson's C. C. 157); and an agreement by an actor to act during a certain time at a specified theatre, and not to act any where else, cannot be enforced by a court of equity as to the positive part, and will therefore not be aided as to the negative part. (Kemble v. Kean, 6 Sim. 333; see, too, Kimberley v. Jennings, 6 Sim. 340). If a goodwill be sold, with an agreement, or covenant, or bond, not to carry on the same business within certain limits, a court of equity will aid the purchaser by granting an injunction against the vendor to restrain him from violating his compact. (Sloman v. Walter, 4 Bro. C. C. 418; Hardy v. Martin, 1 Cox, 26; S. C. 4 Bro. C. C. 419, n.; Barrett v. Blagrave, 5 Ves. 555; Scott v. Mackintosh, 2 Ves. & Bea. 503; Williams v. Williams, 2 Swanst. 253). And an injunction will be granted notwithstanding there may be a penalty affixed to the breach of the agreement; (Sloman v. Walter; Hardy v. Martin; Barrelt v. Blagrave; ubi supra); but not if the sum to be paid for the breach of the agreement appear to be intended as liquidated damages. (14 Ves. 469; see, too, ante, p. 111, n. (e). And even, if the vendor be not restrained from carrying on the business by an express agreement in writing, yet on parol evidence that such was the understanding of the parties, a court of equity will assist the purchaser by injunction. Harrison v. Gardner, 2 Madd. 198). writing, and no parol evidence of an not carry on the same business, he cannot be prevented from carrying it on in any place he chooses, however near to the place of the business he has sold. (Shackle v. Baker, 14 Ves. 468; Cruttwell v. Lye, 17 Ves. 335; see, too, Kennedy v. Lee, 3 Mer. 441, 452). (Shackle v. Baker, 14 Ves. 468; But if there be no agreement in agreement that the vendor should The right to enforce an agreement restraining trade may be lost by the covenantee's waiving the benefit of it for a long period. (Barrett v. Blagrave, 6 Ves. 104). And it seems, that a bill for an account under a covenant in restraint of trade is not usual; the usual course is a bill of discovery for the purpose of an action. (Scott v. Mackintosh, 2 Ves. & Bea. 503). XLIII. CONVEYANCE in FEE, with the RESERVA- CONVEYANCE WITH RESERV- MINES. THIS INDENTURE, made &c. BETWEEN A. B., of Parties. &c., [vendor], of the one part, and C. D., of &c., [purchaser], (a) A tenant in fee-simple is prima facie entitled to all mines and minerals, except mines of gold and silver. (See the resolution of the Judges, Plowd. 336 a, in the Case of Mines, Plowd. 313 a). And it is apprehended that mines and minerals under the ancient highways, and under the strips of waste land on the sides of such highways, belong to the proprietors of the adjacent lands. (See ante, page 60, note (o) ). All mines of gold and silver, whether in the lands of the crown or of subjects, belong to the crown by prerogative, with liberty to dig and carry away the ores thereof, and with such other incidents thereto as are necessary to be used for the getting of the ore. (Plowd. 336). This would have been of little practical importance if confined to mines of gold and silver only, but, as the law formerly stood, all ores or mines which contained any portion of gold or silver were taken as mines of gold or silver. (Ibid.) Now, however, by the statute 1 Will. & Mary, c. 30, explained by the statute 5 Will. & Mary, c. 6, it is enacted that no mine of copper, tin, iron, or lead shall be adjudged a royal mine, although gold or silver may be extracted out of the same, and the owners of such mines are empowered to work them. But the statute 5 Will. & Mary, c. 6, also provides that the crown may have the ore of such mines, paying for the same according to the rates therein expressed, and which, so far as regards lead, have been altered by the statute 55 Geo. 3, c. 134. (See further Vin. Abr. Prerogative, E. c. 3, and K. a; 4 Bac. Abr. 163, 204, 213, and the authorities cited). It has indeed been said that the crown has no power to grant a license to any person to go upon another man's estate, and dig upon his soil, and search for such mines, although when they are once opened the crown can restrain the owner of the soil from working them, and can either work them itself or grant a license for others to work them. (Lyddal v. Weston, 2 Atk. 19). But this position is liable to considerable doubt, as being inconsistent with Tenant in feesimple entitled to mines, Mines of gold and silver belong to the crown. CONVEYANCE WITH RESERV ATION OF MINES. Recital of contract for purchase. The ownership of the mines may subsist independently of the ownership of the soil. The rights of the owner of mines in another man's land. of the other part: WHEREAS the said C. D. hath contracted and agreed with the said A. B. for the absolute purchase the resolutions of the Judges in the Case of Mines. (Plowd. 310, 336; see, too, 16 Ves. 392). Even if the crown grant lands, and the mines therein contained, common or base mines only will pass, and not mines of gold or silver. (Plowd. 336; 1 Rep. 466, 52. a). But it is said, that if the crown have a royal mine in the lands of A. B., and makes a grant "ex gratia speciali, certa scientia, et mero motu " of all mines in the lands of A. B., the royal mines shall pass. (Plowden, 336, a). Much learning on this subject will be found in the authorities above referred to; but since the statute 1 Will. & Mary, c. 30, it is of little consequence in practice. It has been observed that the tenant in fee-simple of the soil is primâ facie entitled to the mines and minerals. But this primâ facie right is liable to be rebutted by evidence that the owner of the soil has not enjoyed the nines and minerals, and that they have been gotten by other persons. (Rowe v. Grenfell, Ry. & Moo. 396; Rowe v. Brenton, 8 B. & C. 737 S. C. 3 Man. & Ry. 133). And of course there may be an ownership in fee-simple, or for any less estate of the mines and minerals distinct from the ownership of the soil. (Harker v. Birkbeck, 1 W. Black. 482; S. C. 3 Burr. 1556; Houghton v. Leigh, 1 Taunt. 402). A mere license to work mines confers no estate in them. (See 19 Ves. 158). And as to what will constitute a freehold interest in mines, see Doe d. Thompson v. Pearce, (Peake's Add. Cases, 242). The liberty of getting minerals in another man's soil does not confer an exclusive right to the minerals so as to preclude the owner of the soil from also getting them. (Lord Mountjoy's case, 1 And. 307; S. C. Godb. 17; 4 Leon. 147; Chetham v. Williamson, 4 East, 468; S. C. Smith, 277; see, too, Doe d. Earl of Falmouth v. Alderson, 1 M. & W. 210). If mines are excepted out of a conveyance, a right to get the mines and to do all things necessary for obtaining them is excepted also. (Sheppard's Touchstone, 100; 2 B. & C. 207). But this incidental right would warrant nothing beyond what was strictly necessary for the convenient working of the mines; it would allow no use of the surface, no deposit upon it to a greater extent or for a longer duration than should be necessary, no attendance upon the lands of unnecessary persons. It would be questionable at least whether it would authorize a deposit upon the land for the purposes of sale or the introduction of purchasers to view the minerals. (2 B. & C. 211; see, too, as the right of roadway to carry away the minerals, Simpson v. Selwright, 2 Lutw. 1247). And hence, when minerals are excepted out of a conveyance, it is usual to except all such powers and privileges for the raising, working, and selling them as experience has shewn to be desirable. See the precedent in the text. A person being seised in fee of the manor of F., and the demesne lands of the closes or parcels of land hereinafter particularly CONVEYANCE mentioned, and intended to be hereby released, with their thereof, and of all the coal mines lying under the manor, enfeoffed another of certain closes, except and always reserved to the feoffor, his heirs and assigns, all tithes of corn and grain, and also except and always reserved unto the feoffor and his heirs, all the coals under the said closes, "together with free liberty for them, the said (feoffor) and his heirs, and his, and her, and their assigns and servants, from time to time and at all times thereafter during the time that the said (feoffor) and his heirs should continue owners and proprietors of the demesne lands of F., to sink and dig pits, or otherwise to sough and get coals in all and every the said lands, woods, grounds, and premises, and to sell and carry away the same with carts and carriages, or otherwise to dispose of the same coals at his and their wills and pleasures, he the said (feoffor) and his heirs," making such satisfaction for damages &c. as should be awarded by two arbiters "chosen by the said (feoffee) and (feoffor), their heirs and assigns." The heirs of the feoffor conveyed to a purchaser in fee the manor of F. and its demesne lands, with its appurtenances, and all the coal mines under (among other lands) the closes sold to the former feoffee; and on a dispute arising, it was held that the coals under those closes were by the exception reserved to the feoffor in fee, and therefore that they passed from his heirs to the purchaser, and that such purchaser was entitled, under the express liberty reserved, as well as under the incidental right, to enter upon the lands, to dig pits, and get the coals, so long as he remained owner of the demesne lands. (Earl of Cardigan v. Armitage, 2 B. & C. 197 ; S. C. 3 Dow. & Ry. 414). And no length of time is of any avail against an exception or reservation of mines. (Adair v. Shaftoe, 19 Ves. 156). In the Earl of Cardigan v. Armitage, ubi supra, the exception was made on a conveyance in 1649, and the working of the mines did not take place till shortly before 1823. In Seaman v. Vawdrey, on a conveyance in 1704, the salt mines and rights of working had been reserved, but no claim had been made down to 1809, and in 1761 the lands had been conveyed without taking any notice of the reservation. It was, however, held that a purchaser could not be compelled to presume that a release had been made of the mines and rights of working, for that the relinquishment of a right to work mines never could be presumed from the non-exercise of it. (16 Ves. 390; see, too, Norway v. Rowe, 19 Ves. 144, 156). In Lyddal v. Weston, (2 Atk. 19), Lord Hardwicke held that a purchaser could not object, on the ground of a reservation of mines to the crown on a conveyance 113 years before, there being a strong probability that no mines existed, and his lordship being of opinion that the crown had no power to work the mines even if they did exist. But the authority of this case WITH RESERV ATION OF MINES. Length of nondestroy a right of mining. user does not |