pose of the agreement, the fact that the sum to be paid is a stated or stipulated amount, in the nature of liquidated damages, should not oust a court of equity of its jurisdiction to compel the party to carry out his agreement. In other words, naming a sum to be paid as liquidated damages does not in itself conclusively establish that the parties contemplated the right to do the act upon payment of the compensation, and make an alternative agreement for the benefit of the party who has done what he had agreed not to do.

A court of equity fastens on the real contract, and compels tre execution of the very thing covenanted to be done. French v. Macale, 2 Dr. & War. 269, 276. It was said in that case by Sir Edward Sugden, afterwards Lord St. Leonards, "A man cannot protect himself against discovery, if he has done the act which he has covenanted not to do, because a penalty is annexed; if he engages not to do the act, he cannot be heard to say, this is a penalty; and whether the whole is or is not recoverable, he must in this court make discovery whether he has done the act." It is obvious that the word "penalty" is not here used in its technical sense. See also Jones v. Green, 3 Yo. & Jerv. 298.

ness.

It is clear, upon examining the language of this agreement as applied to the subject matter of the sale, that its object is to secure absolutely to the plaintiff the exclusive right, as against the defendant, to pursue the business of manufacturing stoves and tin ware in Danvers. The defendant, having sold his interest and good-will, expressly stipulates not to engage in the busiThe language is, "I hereby agree not to manufacture or sell or become engaged in said business, either for myself or others, hereafter in the town of Danvers, under forfeiture of $1000 to be paid to said Ropes in case of a breach of these conditions." There is nothing here to show a right or option in the defendant to manufacture upon payment of the money, or that the agreement would be satisfied by the payment of the sum stated; it is an absolute engagement not to do certain acts, and thereby interfere with the plaintiff's business. This is a distinct agreement, independent of the stipulation as to the money to be paid, if he violates his agreement, or, to use the precise language, "in case of a breach of these conditions." These words show that the defendant could not engage in the business without break

ing the agreement not to do so. The substance of the whole paper is, that the defendant covenants that he will not do a particular thing, and then says, "If I do, I will pay you $1000 as satisfaction;" but this does not prevent a court of equity from enjoining him from doing that which he has agreed not to do. The language might well be treated as creating a penalty, except for the tendency of the courts in this class of cases, as before stated, to hold that liquidated damages were intended. But assuming this to be a case of liquidated damages, there is abun dant authority to show that the distinction contended for is not regarded by courts of equity.

In Sainter v. Ferguson, 1 Macn. & Gord. 286, the defendant agreed not to practise within seven miles of Macclesfield under a penalty of £500. Upon application for an injunction to restrain a breach of the agreement, the court ordered the motion to stand over with liberty to the plaintiff to take proceedings at law. The plaintiff brought his action and recovered £500 by way of liquidated damages. Sainter v. Ferguson, 7 C. B. 716. He then renewed his application for an injunction, but the court refused to interfere. Lord Cottenham, in delivering judgment, said: "It is true that, if the plaintiff had seen the difficulty which has since arisen, he might have put the matter so as to have had the option left to him either of exercising his legal right or his equitable remedy, and not to have been precluded from the alternative which, before the action, he had, either to ask for an injunction, or to obtain compensation at law. The order, however, does not provide for this; it places the plaintiff under no restriction; it only refuses to interfere until the legal right has been tried. It was then the plaintiff's own choice to go on; and the matter now stands just as if the plaintiff had brought the action first, and then come to this court for an injunction." 1 Macn. & Gord. 290. And in Fox v. Scard, 33 Beav. 327, it was held, on the authority of Sainter v. Fergu son, that where a person enters into an agreement not to do an act and gives his bond to another to secure it in a penal sum, the latter has a right in law and equity, and can obtain relief in either, but not in both courts.

Two cases decided by Lord Hatherley, when Vice Chancellor, are in point. In Bird v. Lake, 1 Hem. & Mil. 111, two persons

Hill and Lake, having been engaged in business as eating-house keepers, at two different houses, one 49 Cheapside, which had originally been Lake's, and the other 13 Gracechurch-street, which had from the first belonged to Hill, dissolved partnership and made an indenture by which it appeared that Lake had entered into a covenant that he would not use any means to obtain the custom or business of Hill, nor carry on the trade or business of an eating-house keeper, within one mile of Gracechurch-street, without paying Hill £1500, as or by way of stated or liquidated damages. It was held that this was an absolute covenant not to do an act, and that such covenant would not (in the absence of a bill to rectify the deed) be controlled by the recital in the deed in regard to the stated or liquidated damages. In Howard v. Woodward, 34 L. J. (N. S.) Ch. 47; S. C. 10 Jur. (N. S.) 1123, the condition of a bond contained the recital that the defendant had agreed to become the managing clerk of a solicitor, and that he would not practise at or within fifty miles of Weymouth, and if he did so, then, if he should pay to the solicitor £1000 as liquidated damages, the bond should be void. On breach by the defendant, it was held that the agreement was not intended to be satisfied by the payment of the sum named, and that the court would interfere by injunction. See also Coles v. Sims, 5 De G., M. & G. 1. The entry must therefore be Demurrer overruled.

WILLIAM SPARHAWK, administrator, vs. WILLIAM F. CLOON & another.

Essex. November 10, 1876; February 2.- August 31, 1878.

A testatrix devised all her property to a trustee to hold in trust for the sole use and support of her husband; to sell or exchange the property and reinvest the proceeds with his consent; to obtain his written receipt or assent for every payment of money or exchange and sale and reinvestment of property; to convey any part or all of the estate to such persons or associations and at such times as he might in writing designate and propose; and empowering the trustee "to relieve himself from trouble and care" by appointing her husband his agent or attorney. Held, that the husband took an equitable fee, which he might alienate, and which equity would apply to the payment of his debts.

BILL IN EQUITY against William F. Cloon and Francis Parton, to reach and apply a trust fund in the hands of Cloon in payment of a debt due from Parton to the plaintiff.

The bill alleged that the will of Mary R. Parton, dated February 5, 1863, contained the following provisions :

"Item 1. I give, bequeath and devise all the property I may own at the time of my death, whether real, personal or mixed, and all contingent right vested in me to any property, or easement or interest, to and unto William F. Cloon, of Marblehead, Massachusetts, to be held by him in trust for the sole use and support of Francis Parton, my husband, of Lynn aforesaid, the said Francis hereunto giving his assent to this bequest. And I hereby require said Cloon, as trustee, to advise with my said husband, and to appoint, according with his advice, one or more, to succeed him as my and his trustee, successors to hold my said property, in trust as aforesaid, should he desire to decline said trust, or be in apprehension of his own death. And said trustee is further empowered to sell or exchange any of my aforesaid estate, and reinvest the proceeds thereof whenever he and my husband may deem profitable. And said trustee is empowered to relieve himself from trouble and care by appointing my husband his agent or attorney. A receipt or a written assent, signed by my husband, shall free said trustee from legal 'iability for any money paid by him or for any act he may perform as my trustee. And such a receipt or written assent, signed by my husband, must be obtained in every such instance of payment, or exchange and sale, and reinvestment of property.

"Item 2. I hereby make it the duty of said trustee, and all he may appoint to succeed him, to convey by deed any part or all of my said estate to such associations, person or persons as my husband may designate and propose hereafter by certified written authority, leaving with my husband to fix the time of any such conveyance.

"Item 3. I hereby nominate and appoint Francis Parton, my husband, to be sole executor of this my last will and testament. And it is my desire and will, that he be not required to give a bond for the faithful performance of his duties as my exeo ator."

The bill further alleged that the will was duly admitted to probate; that Cloon accepted the trust, and held under it certain land and personal property, from which he received the rents, profits and income; that on June 20, 1876, Francis Parton executed an assignment under seal, which, after reciting the provisions of the will in his favor, and that he had been arrested on an execution issued on a judgment obtained by the plaintiff for debt, and that the magistrate, to whom he applied to take the oath for the relief of poor debtors, was in doubt whether he could properly administer the oath without such an assignment, proceeded as follows: "I, the said Francis Parton, do hereby assign, set over and convey to the said William Sparhawk all the assignable powers, privileges and interests which I may or can assign, or which I am under obligation to assign, in order to enable me to take the oath for the relief of poor debtors, it being understood that if the said Sparhawk is entitled to recover any part of the principal or income of said trust property he shall not be entitled to recover under this assignment a sum beyond the principal, interest and costs of said judgment. The said Parton not hereby intending to waive any rights by making this assignment, but intending to simply empower the said Sparhawk to reach and obtain any rights as a creditor he may have against the interest of said Parton as the cestui que trust under said will."

The bill further alleged that the plaintiff subsequently de manded of Cloon payment and transfer of Parton's interest in the trust fund, but that Cloon refused to pay to him any part of the income or principal of such fund.

The prayer of the bill was that Cloon might be ordered to pay the debt due to the plaintiff, either out of the principal or out of the income of the trust fund.

The defendants demurred, on the grounds that by the will Parton had no interest in the trust property, which the plaintiff, as his creditor or under the assignment, could reach and have applied to his benefit; that under the assignment the plaintiff acquired no rights in the trust property greater than he would have had without it; and for want of equity.

The case was heard on bill and demurrer, before Endicott, J., who reserved it for the consideration of the full court.