moned and heard under the 98th section of 9 & 10 Vict. c. 95, and that it was not the intention of the legislature that he should be again summoned; but the court held, that those cases were not distinguishable in principle from the present one, and gave their judgment for the plaintiff on the broad and general principle that, in the case of a penal commitment, the party to be punished is entitled to be first heard in his defence; and that as the provisions of the act were not clearly inconsistent with this general rule of law and justice, the court would not infer that they were.

The result of this case is, that although the judge has power, after examination of the debtor under the 98th section, to commit such debtor forthwith, he has not power to make an order for committal to take effect at a future period, contingent on the event of the debtor not making such payments as may be ordered. "Before an order is made for his committal," said Maule, J., "ought he not to be summoned, and an opportunity given him to explain, if he can, why he has neglected to pay? No doubt, if he is ordered to pay forthwith, and he does not pay he may be committed forthwith; but the act does not say that the judge may order him to pay at the expiration of a given time, and if he does not pay then that he is to be imprisoned without further inquiry. It might be that, although the judge was perfectly satisfied and on good grounds, that the debtor would be able to pay at the end of six weeks, and made an order for him to pay then, yet that, when the day came, ample reason would be given to excuse the nonpayment, and induce the judge not to commit." The case of Re the Hammersmith Rentcharge, 4 Exch. 87, in which it was held that, under the Tithe Commutation Act, a judge might order a writ to issue to the sheriff upon an ex parte application, was distinguished from the present case upon the ground that that was civil process; but that here the imprisonment was the penalty, and which might be for forty days, or for less, according to the discretion of the court, and that consequently all the circumstances necessary for regulating such discretion ought to be before the court.

RESTRAINT OF TRADE-CONSTRUCTION OF COVENANT.
Elves v. Crofts, 19 Law J. C. P.

IT is now well established that a covenant is not void on account of its being in restraint of trade, if it be subject to a reasonable limitation, and that such limitation is to be ascer

tained by reference to local space, and not to duration of time. In Hitchcock v. Coker, 6 Ad. & El. 440, which has since become the leading authority on the subject, and was a decision of the Exchequer Chamber, it was held that the restraint was not shown to be unreasonable by the circumstance that its duration was not limited to the life of the covenantee, or to the time during which he should carry on the business which the covenantor contracted not to be engaged in. The court there considered that the absence of such a limitation in the covenant was the only effectual mode of securing to the covenantee the full benefit of the goodwill of his trade.

But that case, as well as Mallan v. May, 11 M. & W. 651, which followed it, was not decided in opposition to, but confirmed the rule laid down by Tindal, C. J., in Horner v. Graves, 7 Bing. 743, that whatever restraint is larger than the necessary protection of the party, with whom the contract is made, is unreasonable and void, as being injurious to the interests of the public. Were it not for the difficulty, if not impossibility, of applying the restriction to time, as well as to distance, the question of reasonableness with regard to what is required for such necessary protection of the covenantee should, in justice to both parties, be affected by the time being limited or not. Hitchcock v. Coker, and the subsequent cases decide, however, that the covenant is not unreasonable, where there is no such restriction as to time. But the decision of that case was only as regards the reasonableness of the covenant when made, and it left untouched the question whether a covenant in restraint of trade, reasonable at the time it is entered into, according to the rules of law which have been laid down, may not by circumstances, afterwards arising, cease to be so reasonable, and become no longer binding.

In the case at the head of this note, the contention on the part of the covenantor was, that when the restriction had ceased to be necessary for the protection of the covenantee, or his assigns, the restriction was altogether gone and the covenant could no longer be enforced. The point arose on the validity, after verdict, of two pleas in an action for the breach of a covenant, by which the defendant, on his assignment of the goodwill of his trade of a butcher to the plaintiff, covenanted not at any time thereafter to exercise or carry on the trade of a butcher within five miles of the premises on which the trade had previously to such assignment been carried on, nor to do any thing to the prejudice of the trade of a butcher, to be thereafter carried on by the plaintiff there. The defendant pleaded that before breach the plaintiff wholly discontinued the business of

a butcher, and the same had not since been carried on at the said premises or elsewhere, either by the plaintiff or his assignee or licensee; and he also pleaded that before breach the term in the premises had expired by effluxion of time. On both these pleas the defendant obtained a verdict, and he contended that they were an answer to the action; the court, however, considered that the restriction had not ceased to operate, by reason of what was stated in those pleas, for that the covenant, upon the authority of the cases to which we have already referred, was valid and binding at the time it was made, and that it could not be varied by any subsequent occurrence; they therefore gave judgment for the plaintiff on these pleas, non obstante veredicto. The court said, that if considerations of time or degree were to be permitted to affect the right to enforce such a covenant, its value would be diminished, and the saleable quality of the goodwill would be injured.

COUNTY COURT.-SERVICE OF JUDGMENT.

Ely v. Moule, 14 Jur. 1070.

In this case the question was, whether the order of a judge of a County Court for the payment of a debt, required to be served before execution, could be issued on it.

The plaintiff had been summoned to answer a plaint in a County Court but failed to appear, and in his absence the cause was heard, and an order made by the judge for the payment of debt and costs forthwith. On the same day on which the order was made the bailiff went to the plaintiff's house and demanded payment; and on his refusing, levied execution on his goods, under a warrant of execution from the court. The plaintiff afterwards brought an action of trespass for the seizure of his goods under such execution, contending that it was premature, as he had not been previously served with the order of the County Court, so as to afford him a reasonable opportunity of complying with it.

The court held that there was no necessity to serve the order, as the order was a judgment of the court and not in the nature of a rule; and that, therefore, on the principle that suitors of a court are to take notice of judgments given there without any notice served upon them, if the party on whom the order was made did not comply with its terms by paying within the time specified, the County Court was authorized to issue execution at

once.

The court said that it mattered not that the party was not personally present at the hearing, as by the 80th section of the statute, if he neglected to attend after having been summoned, the judge was enabled to proceed in his absence as if he were actually present, so that the judgment was given in the constructive presence of such party.

Much reliance was placed by the counsel for the plaintiff on the 14th rule, which had been framed by the judges of the superior courts, pursuant to the 78th section of the statute, empowering them to make "general rules for regulating the practice and proceedings of the County Courts." The 14th rule directs that certain rules as to the mode of service of summonses to appear to a plaint "shall apply to the service of all summonses, judgments, orders, &c. ;" and it was argued that the judges had therefore supposed cases in which judgments were to be served. In answer to this the court said that the rules were not a judicial exposition by the judges of the statute, and were not therefore binding on them as if they had been pronounced in cases in open court after argument; and also that they considered that the including "judgments" in the 14th rule was done for greater caution, in order that if there should be a case in which service of a judgment should be required, a direction was given in what way it was to be served, but that the judges never meant by the rule to decide that judgments were to be served. The statute certainly does not contemplate the service of any judgment, for, as was said by Platt, B., although Schedule D. provides for fees to the bailiff for serving the different processes of the court, it says nothing of fees for serving a judgment; nor is it easy to imagine any case in which the 14th rule can apply to judgments Baron Parke says, "I have looked in vain through the statute for a case where service is required of a judgment;" but he suggested that the judges might have considered some such a case as where a judge of the County Court might order payment to be made within a certain time after service of the judgment; and Alderson, B., intimated that it might be contended that if an order were made to vary a judgment already given, it was an order and not a judgment.

The result of the decision, however, relieves the proceedings of the County Courts from the serious consequences which would otherwise have ensued had the plaintiff succeeded on the point he had raised.

CRIMINAL LAW.

SHOOTING AT A FELON.

Reg. v. Dadson, 14 Jur. 1051.

THIS case, which has lately been before the Court of Criminal Appeal, is an important illustration of the rule laid down by the old authorities, that it is justifiable to slay or wound a felon when a felony has been committed, if the felon flies or resists and he cannot possibly be apprehended without so killing or wounding him. It is thus stated in 1 Hawkins, P. C., “If a person, having actually committed a felony, will not suffer himself to be arrested, but stand on his own defence, or fly, so that he cannot possibly be apprehended alive by those who pursue him, whether private persons or public officers, with or without a warrant from a magistrate, he may lawfully be slain by them."

In the present case it appeared that a constable employed to guard a copse from which wood had been stolen, saw a person come out from the copse carrying wood which he was stealing. The constable called to the man to stop but he ran away, and the constable having no other means of bringing him to justice fired and wounded the man in the leg. It was proved that this person was actually committing a felony, he having been before convicted repeatedly of stealing wood, but the constable did not know this and he was therefore found guilty. The Court of Criminal Appeal were of opinion that the constable had been properly convicted, as it was found that he was not aware that a felony had been committed at the time he fired at the man.

In this case the propriety of the conviction was held to depend on the knowledge of the constable that a felony had been committed. Had he known at the time he fired that such felony had been committed, he would probably have been justified in firing; but as he did not, his firing was not justifiable.