plaintiff and continued falsely to imprison him until the 30th

of May, 1880.

The plaintiff claims £100 damages.

Defence.

1. The defendant is the Governor of the C. Gaol.

2. During the time mentioned in the statement of claim he detained the plaintiff in the C. Gaol under a warrant of commitment signed by A. B., Esq., and C. D., Esq., two justices of the peace acting in and for the borough of C., committing the plaintiff to the C. Gaol for one calendar month with hard labour, which is the grievance complained of.

4. Claim for Assault, False Imprisonment, and Malicious

Prosecution.

1. On the 1st of May, 1880, the defendant, in company with a police officer, arrested the plaintiff and took him into custody upon a false charge of larceny, and conveyed him to the B. Gaol, where he was falsely imprisoned.

2. On the 2nd of May, 1880, the defendant further maliciously and without reasonable and probable cause, preferred a charge of larceny against the plaintiff before a Justice of the Peace, causing the plaintiff to be sent for trial on the said charge.

3. The defendant at the ensuing Quarter Sessions for the borough of B. maliciously and without reasonable and probable cause, further prosecuted the plaintiff upon the said charge, when he was acquitted.

Particulars of special damage :

Mr. J. S., bill of costs, £30.

The plaintiff claims £400 damages.

Ferocious Animals (a).

1. Claim for Personal Injuries caused by the Bite of a Savage

Dog.

1. On the 13th of March, 1882, the plaintiff was bitten by a dog the property of the defendant.

(a) The owner of an animal which is ordinarily vicious, as a lion or a bear, is liable for its acts of ferocity, for he is bound to keep it secure at

2. The said dog at the time was a savage and vicious dog to the defendant's knowledge.

Particulars of special damage:

1. The said dog was not the property of the defendant.
2. The said dog was not a savage and vicious animal.

3. It was not savage and vicious to the defendant's knowledge.

The gist of his peril: but the owner of a domestic animal, as an ox or a dog, is only the action liable if he knows that the animal is accustomed to do mischief. (R. v. is the keep Huggins, 2 Ld. Raym. 1583.) The gist of the action is not the negligent ing with keeping, but the keeping at all with knowledge of the mischievous knowledge propensity. (May v. Burdett, 9 Q. B. 101 ; Jackson v. Smithson, 15 M. & W. 563.)

of the ferocity.

What

amounts to

such know. ledge.

The essential ingredients in an action against the owner of a dog or other domestic animal which has injured a man or woman, are-1, that the defendant knew the animal was vicious; 2, that after this knowledge he continued to keep the animal; and 3, that it inflicted an injury upon the plaintiff. Knowledge of the vicious nature of the animal need not be brought home to the defendant personally; knowledge by a servant who has charge of the dog is enough (Baldwin v. Casella, L. R. 7 Ex. 325; Applebee v. Percy, L. R. 9 C. P. 647; Gladman v. Johnson, L. J. 36 C. P. 153) ; and as to the extent of the defendant's knowledge of the animal's viciousness, it need not be shown that he knew the animal had actually bitten any one before. It is sufficient if it has evinced a savage disposition, as by flying at any one and attempting to bite. (Worth v. Gilling, L. R. 2 Č. P. 1.) The fact that the defendant has warned another to beware of the dog is evidence that he knew it had a vicious disposition. (Judge v. Cox, 1 Stark. 285.)

The defendant is liable though the animal is not really his property, if he knowingly harbours it on his premises; but where a defendant had done all that was reasonable to get rid of a stray dog which had come on to his premises, he was held not liable for an injury done by it. (Smith v. Great Eastern Rail. Co., L. R. 2 C. P. 4.) A person who keeps a vicious animal about his premises, except for the purpose of protecting his property, which he is entitled to do (Brock v. Copeland, 1 Esp. 203), is responsible though he has taken every precaution, as he fancies, to prevent its escaping and doing mischief. (Jones v. Perry, 2 Esp. 482). Though a man cannot recover damages for an injury done to himself by a ferocious dog, unless he can prove that its master knew of its ferocity, the owner of sheep or cattle can recover for an injury done to his sheep and cattle (including in this term, horses and mares, and perhaps pigs (Wright v. Pearson, L. R. 4 Q. B. 582), without averring or proving any such scienter, as it is phrased. This is provided by the 28 & 29 Vict. c. 60, to which the pleader is referred.

2. Claim for Injury done to Sheep by a Dog.

On the 1st of May, 1876, a dog which was then kept by the defendant upon his premises broke into the plaintiff's land and made an attack upon and bit and worried a flock of the plaintiff's sheep which were therein.

1. The said dog was not kept on the defendant's premises,

nor was it his dog.

2. It did not bite or worry any of the plaintiff's sheep.

Fraud.

(See Misrepresentation).

Freight.

(See Bills of Lading-Carriers-Charter-party.)

Goods.

(See Sale of Goods.)

What passes

under sale

Goodwill (a).

1. Claim for the Agreed Price at which the Goodwill of a Business was Sold.

1. On the 10th of May, 1882, the plaintiff sold, and the defendant purchased, the goodwill of the business of a chemist and druggist which the plaintiff was then carrying on in Calne, for an agreed price of £20 to be paid on the said date by the defendant, and a further sum of £80 a month afterwards. 2. The defendant paid the said sum of £20, but at the expiry of a month he failed to pay the further sum of £80. The plaintiff claims £80.

(a) "An assignment of a business and its goodwill, without more, appears to us to pass now just as much and no more than in the days of Lord Eldon. As against the assignor it confers on the assignee the of goodwill. exclusive right to carry on the business assigned, and, as incidental to this, it also confers on him the exclusive right to represent himself as carrying on that business, and consequently the right, not only to sue the assignor for damages if he has infringed these rights, but to restrain him from infringing them if he manifests an intention of infringing them." (Per Baggallay, L. J. in Walker v. Mottram, 19 Ch. D. 355 (C. A.); 51 L. J. Ch. 108.) The vendor of a business and the goodwill thereof may, in the absence of express stipulation to the contrary, set up a business of the same kind either in the same neighbourhood or elsewhere, and he may publicly advertise the fact of his having done so. (Labouchere v. Dawson, 13 Eq. 322; 41 L. J. Ch. 427.) He may also deal with old customers; but he will be restrained from soliciting their custom. (Leggett v. Barratt, 15 Ch. Div. 306; 51 L. J. Ch. 90 (C. A.), disapproving Ginesi v. Cooper, 14 Ch. D. 596; 49 L. J. Ch. 601.)

Effect of

sale of goodwill by trustee in bankruptcy.

But the rule that a vendor of a goodwill will be restrained from soliciting his old customers only applies to voluntary alienations, and therefore a purchaser of the goodwill of a business from a trustee in bankruptcy or liquidation, has no right to restrain the bankrupt or liquidating debtor from setting up bonâ fide a fresh business, and soliciting the customers of his former business, and it is immaterial whether the bankrupt has or has not joined in the conveyance of the goodwill to the purchaser (Walker v. Mottram, quoted, supra). So a partner who has been expelled under a provision in the partnership articles, and has been repaid his share of the capital will not be restrained from carrying on business on his own account, and soliciting the old customers of the firm. (Dawson v. Beeson, 22 Ch. Div. 504.)

In the recent case of Arundell v. Bell, 52 L. J. Ch. 538, Jessel, M. R., intimated that as a general rule and in the absence of express contract there is not in a partnership between solicitors, any partnership asset capable of being sold or valued as the goodwill of the partnership business.

But though the vendor of the goodwill of a business will not be restrained from setting up a fresh business of the same kind, yet if (as is generally the case) he has as a term of the purchase and sale of the goodwill expressly agreed not to commence and carry on a business, he will be forbidden by injunction to do so.

Defence and Counter-claim.

Defence.

1. At the time of the making of the contract mentioned in the claim, the plaintiff fraudulently represented to the defendant that the takings of the said business had averaged during the past year from £28 to £30 a week, and by such representation induced him to agree to purchase the same.

2. The takings of the said business had not averaged during the past year from £28 to £30 a week, or anything like that sum, as the plaintiff at the time of making the said representation well knew.

3. As soon as the defendant discovered the said misrepresentation, he avoided the said contract, and he has never received any benefit under the same.

Counter-claim.

1. The defendant repeats all the allegations contained in the defence, and says further, that by means of the said false and fraudulent representations the plaintiff obtained from the defendant, on the said 10th of May, the sum of £20. The defendant claims the said sum of £20.

Reply.

1. The plaintiff joins issue upon the statement of defence. 2. As to the counter-claim, he denies that he ever made the representation alleged, or that the same was false.

3. The defendant has not avoided the said contract of sale, and he has derived benefit under it.

2. Claim for an Injunction against the Vendor of a Business who is soliciting the Old Customers.

1. By an agreement dated the 20th of August, 1880, made between the plaintiff and the defendant, the former purchased from the defendant the goodwill of the business of a tailor and draper, which the defendant was then carrying on, under the name and style of C. E. & Son, at Berwick, for the sum of £150.