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Goodwill.

now

Connected with the subject of trade marks is that of goodwill. The goodwill of a trade or business is often of great value. It comprises every advantage which has been acquired by carrying on the business, whether connected with the premises in which the business has been carried on, or with the name of the firm by whom it has been conducted (h). On the dissolution of a partnership, each partner has a right, in the absence of any stipulation to the contrary, to use the name of the old firm (i); and if there be a stipulation that, in case of the decease of one partner, the surviving partner shall take the stock or capital at a valuation, the goodwill must be included in such valuation (k). The sale of the goodwill of a business will not prevent the vendor from setting up a similar business on his own account, even in immediate proximity to the premises on which the old business has been carried on (l): but, in such a case, the vendor is not entitled to represent that the new business, which he has set up, is the same as, or is carried on in continuation of the business, of which he has sold the goodwill (m). It It is now held, after considerable conflict of opinion, that the vendor of a business with the goodwill thereof, who has subsequently set up the same business for himself, will not be restrained from soliciting the customers of the old business to cease dealing with the purchaser, and to give their custom to himself (n). Upon the sale of a business with the goodwill, the purchaser should always

15, 26, 27, 29-39; Turton v.
Turton, 42 Ch. D. 678; Re Louis
Tussaud, Limited, 45 Ch. D.
577.

(h) Churton v. Douglas, John-
son, 174. See also James, L. J.,
Levy v. Walker, 10 Ch. D. 436,
445, 448; Thynne v. Shore, 45
Ch. D. 577.

(i) Banks v. Gibson, 34 Beav. 566; Gray v. Smith, 43 Ch. D. 208.

(k) Hall v. Barrows, 4 De G.

J. & S. 150.

(1) Cruttwell v. Lye, 17 Ves. 335; Hall v. Barrows, Churton v. Douglas, ubi supra; Labouchere v. Dawson, L. R. 13 Eq. 322,

324.

(m) Churton v. Douglas, Joh. 174.

(n) Pearson v. Pearson, 27 Ch. D. 145; Vernon v. Hallam, 34 Ch. D. 748; Bristol, &c. Co. v. Maggs, 44 Ch. D. 616, 620; overruling Labouchere v. Dawson, L.

insist on a covenant being entered into by the vendor not to carry on the business within so many miles of the old premises (o); which covenant, as we have seen (p), is valid. And it is also desirable, in the interest of the purchaser, that the vendor should further covenant expressly that, in case he shall set up a similar business without the prescribed limits, he will not privately solicit any customer of the business sold to deal with him or to cease dealing with the purchaser with respect to the class of business sold, either personally or by letter or circular, or by travellers or other agents (q).

There does not appear to be any direct process of exe- Alienation cution available against patents, copyrights, or the other for debt. rights of which we have treated in this chapter (). But the benefit of a bankrupt's letters-patent for an invention (8), or copyright passes to the trustee in his bankruptcy along with his other property. Such rights would appear to be things in action, so as to be excluded from the operation of reputed ownership clauses of the bankruptcy law (t). A trustee is expressly

R. 13 Eq. 322. As to the sale of the business of a bankrupt by his trustee, see Walker v. Mottram, 19 Ch. D. 355. As to the case of the expulsion of a partner from a business, see Dawson v. Beeson, 22 Ch. D. 505.

(0) See Bristol, &c. Co. v. Maggs,

ubi sup.

(p) Ante, p. 169.

(q) See Turner v. Evans, 2 De G. M. & G. 740; Leggott v. Barrett, 15 Ch. D. 306. Such a covenant would be valid; Rannie v. Irvine, 7 Man. & Gr. 969; see ante, p. 169. In Johnson v. Helleley, 2 De Gex, J. & S. 446, where the goodwill of a partnership business was ordered to be sold by the Court, a notice was directed to be inserted in the alvertisements and particulars of

sale, that the sale would not
prevent any person theretofore
interested in the business from
carrying on the like business in
the same town; see Taylor v.
Neate, 39 Ch. D. 538, 542.

(r) It seems, however, that such
property might be seized and sold
under process of sequestration,
which may be resorted to on non-
payment of an instalment of a
judgment debt ordered to be paid
by instalments; Willock v. Ter-
rell, 3 Ex. D. 323; 1 Seton on
Decrees, 395, 397, 5th ed.

(s) Hesse v. Stevenson, 3 B. & P. 565; Bloxam v. Elsce, 6 B. & C. 169.

(t) See 11 App. Cas. 438-440; Robson on Bankruptcy, 531532, 7th ed.

authorized to sell the goodwill of the bankrupt's business as part of his property (u); and is enabled to dispose, in connection with such goodwill, of all the advantages enjoyed by reason of the bankrupt's exclusive right to use any trade marks or trade name (x)..

(u) Stat. 46 & 47 Vict. c. 52, s. 56; ante, p. 240.

(x) See ante, pp. 327, 333, 334;

Robson on Bankruptcy, 598599, 7th ed.

PART III.

OF PERSONAL ESTATE GENERALLY.

CHAPTER I.

OF SETTLEMENTS OF PERSONAL PROPERTY.

life.

PERSONAL property is capable of being settled, but not No estate for in the same manner as land. Land being held by estates, is settled by means of life estates being given to some persons with estates in remainder in tail and in fee simple to others. But personal property, as we have already observed (a), is essentially the subject of absolute ownership. The settlement of such property, by the creation of estates in it, cannot therefore be accomplished. And there is a striking difference in many cases between the effect of the same limitation, according as it may be applied to real or to personal property.

As there can be no estate in personal property, it follows that there can be no such thing as an estate for life in such property in the strict meaning of the phrase. Thus, if any chattel, whether real or personal, be assigned to A. for his life, A. will at once become entitled in law to the whole. By the assignment the property in the chattel passes to him, and the law knows nothing of a reversion in such chattel remaining in the assignor. And this is the case even though the chattel be a term of years of such length (for instance,

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Bequest of a term for life.

Executory bequests.

1,000 years) that A. could not possibly live so long (b). The term is considered in law as an indivisible chattel, and consequently incapable of any such modification of ownership as is contained in a life estate.

An apparent exception to the above rule has long been established in the case of a bequest by will of a term of years to a person for his life in this case the intention of the testator is carried into effect by the application of a doctrine similar to that of executory devises of real estates (c). The whole term of years is considered as vesting in the legatee for life, in the sante manner as under an assignment by deed; but on his decease the term is held to shift away from him, and to vest, by way of executory bequest, in the person to be next entitled (d). Accordingly, if a term of years be bequeathed to A. for his life, and after his decease to B., A. will have during his life the whole term vested in him, and B. will have no vested estate, but a mere Possibility. possibility, as it is termed (e), until after the decease of A.; and this possibility, like the possibility of obtaining a real estate, was formerly inalienable at law unless by will (f), though capable of assignment in equity (g). But by the Act to amend the law of real property (l), which repeals an Act of the previous session passed for the same purpose (i), it is provided that an executory and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure may be disposed of by deed. B. may, therefore, during the life of A., assign his expectancy by deed; and such assignment will entitle the assignee to the whole term on A.'s decease. If, however, no such

Now alienable.

(b) 2 Prest. Abs. 5.

(c) See Williams, R. P. 367, 17th ed.

(d) Matthew Manning's case, 8 Rep. 95; Lampert's case, 10 Rep.

47.

(e) See Williams, R. P. 336, 17th ed.

(f) Shep. Touch. 230.
(g) Fearne, Cont. Rem. 548.
(h) Stat. 8 & 9 Vict. c. 106, s. 6
(i) Stat. 7 & 8 Vict. c. 76, s. 5.

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