1854.

AVERY

v.

LANGFORD.

Judgment.

was contended, that, if he carried on any trade within this district in respect of which he might be made a bankrupt, that would be an infringement of the condition of the bond: but I think that a Court of law would not hold such a bond to be invalid because the terms of the condition were too large, but would construe that condition with respect to the nature of the trading establishment which was the subject of the sale, and would take it to mean that the Defendant was not to set up within this district any trading establishment which would interfere with that of the Plaintiff.

Decree.

Specific performance, with costs; the form of the bond to be settled in Chambers if the parties differ.

The validity of the restraint in these cases depends very much upon the nature of the trade, which may require a larger or smaller district to carry it on, according to circumstances.

The restriction as to place, therefore, having reference to the nature of the trade, is the most important consideration. The duration in time of the restraint seems not to be of so much consequence. Most commonly, it is during the life of the covenanting party; but in Archer v. Marsh (6 Ad. & El. 959), a restriction expressly extended to all time seems to have been supported.

The following short summary of the decisions on this question, since 1711, arranged in chronological order, may be of use:

In this division the restriction was held to be good:

Lifetime of vendor Between

of In Taunton, or within

three miles thereof. Between London and numerous other towns.

Lifetime of vendor Unlimited.

-

In this division the restriction was held to be good-continued:

In the following instances the restraint was held to be void :

1854.

SPICKERNELL v. HOTHAM.

July 14th.

THIS was a suit for administration of the estate of Statute of Li

mitations

The first Acknowledg

ment-Evi

George V. Drury, the testator in the cause. question that arose was, as to the effect of the following dence-Trustdocuments to prevent interest upon the debt being barred

by the Statute of Limitations.

"Kirby Hall, 10th October, 1834.

Life Interest,

A, gave to B. a promissory note, dated October, 1834, for 8371.

"I promise to pay to Miss Meyer, or her order, on de- 1s. 6d., payable

mand, the sum of 8371. 1s. 6d.

"GEORGE V. DRURY."

In December, 1834, Miss Meyer required payment of the money due upon this note, and G. V. Drury, being unable to pay, promised to pay interest at 4 per cent. from December 2nd, 1834; and his wife wrote the following letter accompanying a memorandum on the same sheet, which was signed by him, but was not stamped:

"As it is not any inconvenience to you to let the interest run on, we shall thank you to let it do so.

on demand. In
December,
1834, demand
was made, and
A. then pro-

mised to pay
interest, and
signed an un-
stamped memo-
randum, dated
ber 1834,
follows:-
"I promise to
pay to B. 8371.,
with 41. per
cent. interest
thereon. A."

the 2nd Decem

Drury will Neither princi

pal nor interest was paid; but,

in January, 1848, A. wrote to B. a letter referring to a promissory note for a debt which he acknowledged, and promised thereby to pay.

Held, that the memorandum of December, 1834, and a letter accompanying it, shewed that interest was running; and that, though in form a promissory note, and unstamped, it could be looked at to see to what debt this interest was to be referred; and that, as no other debt was proved to exist, the 8377. there mentioned was to be assumed to be part of the 8371. 1s. 6d. secured by the former promissory note.

Held, also, that, in the absence of proof of the existence of any other promissory note to which it could relate, the letter of 1848 must be taken to refer to the promissory note of October, 1834, and thus to take it out of the Statute of Limitations.

By a marriage settlement, dated in 1828, A. covenanted to transfer a sum of stock belonging to him to trustees, upon trust to pay the dividends to himself for life, and then upon trusts for the benefit of the intended wife and the issue of the marriage. The stock was not transferred: --Held, that A. was not a trustee of it within the exception of the Statute of Limitations; but, that it was a debt from him, and that, notwithstanding his life interest, time began to run against this debt from the execution of the settlement.

In 1825, A. borrowed from the executors in trust of a will, a fund which was thereby bequeathed to them in trust for himself for life and then for other persons, and gave to them a promissory note for the repayment of this sum to them as "executors in trust," with lawful interest:-Held, that A. borrowed the fund and promised to repay it as trust money, and therefore that lapse of time was no bar to the claim against him for repayment.

1854.

SPICKERNELL

write here the memorandum, and then you can tear it off.

'I promise to pay to Miss Meyer the sum of 837., with per cent. interest thereon.

'Buxton, 2nd December, 1834."

'George V. Drury.'

Neither principal nor interest was ever paid.

terms:-
·---

On the 18th of January, 1848, the said G. V. Drury wrote to the said Miss Meyer a letter in the following "In my next visit to you, when I was at Kirby, I purposed noticing the pecuniary obligation my dearest wife and myself were under to you, when my sudden unhappy departure deprived me of this opportunity. This money will be forthcoming whenever you will require it, and indeed would have been liquidated long ago, had not all my available funds been swallowed up (some thousands left by my predecessor, add to which the loss of the Crown grant of Mere in Wiltshire) in making this place habitable, and in repairing farm houses, and numerous other expenses. I am therefore only just beginning to feel my way. The first opportunity, I shall make it a point to repay you, with the grateful acknowledgments due to you, and, to prevent accidents or uncertainty, I have long previous to this mentioned the amount in my will, to be paid to you or your agents and executors, &c. Mrs. Drury I am not aware left any regular memorandum in her papers, nor was she sensible it was essentially necessary, as she knew I had given you a note of hand for the amount. Believe me, that, with my best acknowledgments, I own myself answerable for this debt; and if it will suit you to grant me a little longer credit, I will most cheerfully discharge the amount to your order."

The Master found that the principal sum secured by the promissory note of the 10th of October, 1834, was due, together with interest thereon from the 18th of January,