Cruttwell v Lye. [HIGH COURT of CHANCERY]

cruttwell v. lye. Nov. 20th and '21st, 1810. sl I/"''.." &&$.&$. [Considered, Ginesi v. Cooper & Company, 1880, 14 Ch. D. 596, 600. Followed, Walker v. Mottram, 1881, 19 Ch. D. 355, 363. See Pearson v. Pearson, 1884, 27 Ch. D. 153 ; Trego v. Hunt, [1896] A. C. 15.] [S. C.] 1 Rose Bank, Gas. 123.-Sale of a trade with the Good-will does not prevent the Vendor's setting up again a similar trade without express covenant; or fraud, by representing it as a continuation of the old trade, or by conduct encouraging others to involve themselves, in the confi.denee that he would not trade again; &c. Sale under a Commission of Bankruptcy of the Waggon Trade from. Bristol and Bath to London with the Good-will. Another concern from Bristol and Bath to War minster and Salisbury being purchased in trust for the bankrupt, having obtained his Certificate, he commenced trade again to London by that road; soliciting customers by advertisement, and cards, stating generally that being reinstated by his friends iri the Carrying Business his waggons set out at the usual hours, &c. An Injunction was refused. In the year 1804 George Lye, being at that time engaged in the carrying trade by waggons from Bristol [336] through. Bath and Warminster to Salisbury, purchased C. xiv.-5 130 CRUTTWELL V. LYE 17 VES. JUN. 337. from the executor of Wiltshire his carrying trade by waggons from Bristol through Bath to London ; with the premises, engaged in that business ; consisting of a warehouse in Peter Street, Bristol, and extensive warehouses in Bath. He afterwards took his son. Edward Lye into partnership with him; and they continued to carry on both those concerns, until a commission of Bankruptcy issued against them ; having extended the Warminster and Salisbury concern by setting up a waggon from Salisbury to London. The assignees under the commission put up to sale by auction, the whole of this carrying business in different lots ; the particular describing Lot 1 as the carrying business of George and Edward Lye ; together with the good-will of the extensive premises in Broad Street, Bath, used for many years in the business of a common carrier from Bath to London, &c.; also the premises in Peter Street, Bristol, together with the good-will of the long-established trade, &c.: Lot 2 was described, generally, as the interest of the bankrupts in the carrying trade from Bristol to Warminster and Salisbury : stating that the purchaser was to take the stock, upon the respective promises ; and specifying some particulars, as to the hours, at which the waggon would be at the respective places, &c. The first lot was purchased by the Plaintiff for £4000. The second lot was purchased by the nephew of one of the assignees ; and after Edward Lye had obtained his certificate, he was again put into business in that concern ; on which occasion he stated both by advertisement, and by hand-bills distributed, that being reinstated by his friends in the carrying business, he informs the public, that his waggons set out at the usual hours ; describing the course, not by the direct road to London, but by the road through Yfar-l^yjl-minster and Salisbury. It was stated by affidavit that one of the Assignees, an uncle of the bankrupt, assisted him by the use of his books in soliciting the customers. Under these circumstances the Plaintiff moved for an injunction. Sir Samuel Romilly and Mr. Heald in support of the Motion. The right of the bankrupt to sot up, and carry on, again, the same trade, and in the same place, is not disputed : but the objection, that will maintain an Injunction, is, that after this trade has been sold, as the good-will of the old established trade, he has set up the same trade ; represented as the continuation of that trade, arid soliciting the customers of that ancient establishment. In that view of the case therefore the question is, not, whether the Defendant has a right to prosecute the business of a carrier from Bristol to London, but whether he can represent himself as continuing the same trade, which had been sold, with the good-will : attached, not to the premises, but to the name ; and is justified in soliciting the customers not to deal with the person., to whom that sale was made. That this is not the trade of a carrier, generally, or to Warminster, but to London, is evident from the advertisement ; representing the bankrupt as being reinstated by his friends in the carrying business; enumerating all the particulars of that trade, which he had carried on before the...