Holbrook v. Tobey. that for the five hundred dollars named in the contract as liquidated damages. The defendant, on the contrary, contended that the sum named in the contract should be treated as a penalty, and the damages assessed by the jury. The case was then by consent withdrawn from the jury, and reported to the full court. If the five hundred dollars named in the contract should be considered as liquidated damages, judgment to be rendered for plaintiff for that sum, otherwise the case to stand for trial, and the damages to be assessed by the jury. S. J. Walton & L. L. Walton, for plaintiff. The $500 named in the contract should be regarded as liquidated damages, because unaccompanied by any statement that the parties regarded it as penal. Gammon v. Howe, 14 Me. 250, 254. Even if the term "penalty" had been used, that of itself would not have been conclusive. Pars. on Cont., vol. 3, ch. 8, § 2, Dwinel v. Brown, 54 Me. 468, and opinion near close of p. 471, and opinion p. 475; Chase v. Allen, 13 Gray, 42, 45; Hodges v. King, 7 Metc. 583, 586. The parties intended to fix the amount of the damages, on account of the difficulty, if not impossibility, of ascertaining and computing them. Pars. on Cont., vol. 3, ch. 8, § 2. The sum fixed is reasonable; and the case does not come under any one of the exceptions, where the sum named has been regarded by the court as a penalty. S. D. Lindsey, for defendant. The primary undertaking of the defendant was not to pay money, but to close his house; and the sum specified is collateral. It is not named as damages. Forfeitures are not favored. If possible, the court will treat the sum as a penalty, and permit the defendant to show actual damages. To hold the damages liquidated might lead to inequitable results. Suppose he opened his house but for a single day, near the close of the term. There neither exists in this case the express stipulation that the $500 should be considered liquidated, nor is the nature of the contract such that the damages may not be satisfactorily ascertained. Shute v. Taylor, 5 Metc. 61: Stearns v. Barrett, 1 Pick. 443; Merrill v. Merrill, 15 Mass. 488; Lawrence v. Parker, 1 id. 191; Hig. Holbrook v. Tobey. ginson v. Weld, 14 Gray, 165; Fish v. Gray, 11 Allen, 133; 2 Greenl. Ev., § 258. WALTON, J. The defendant bound himself in the sum of $500, to close his house as a public house, and not to allow his house or his stables to be used for the accommodation of the traveling public for the next five years; and the only question is whether the sum mentioned shall be considered as liquidated damages or a penalty. We think it must be regarded as liquidated damages. The authorities run in nearly an unbroken current to the effect that where a party binds himself in a sum named not to carry on any particular trade, business, or profession, within certain limits, or within a specified period of time, the sum mentioned will be regarded as liquidated damages, and not a penalty. In Leighton v. Wales, 3 Mees. & W. 545, where the defendant bound himself not to run a coach over a certain road, at any time within one hour before or after certain specified hours of the day, under a penalty of £40, held, that the £40 must be construed as liquidated damages, and not as a penalty. In Crisdee v. Bolton, 3 Carr. & P. 240, where, in an agreement for the sale of a public house, the seller agreed not to be concerned in carrying on the business of a publican within a mile of the house he had sold, under the penal sum of £500, it was held that the whole sum was recoverable as stipulated damages. In Rawlinson v. Clarke, 14 Mees. & W. 187, where an apothecary sold out his business, and agreed not to carry on the business within three miles of the then place of business, and for a breach of the agreement, to pay £500, it was held that the measure of damages was the full sum named. In Price v. Green, 16 M. & W. 346, where the defendant bound himself in the sum of £5,000, not to engage in the business of a perfumer in London or Westminster, it was held that for a breach of the agreement the plaintiff was entitled to recover the whole sum of £5,000. In Galsworthy v. Strutt, 1 Exch. 659, where an attorney agreed that he would not within the next seven years engage, directly nor indirectly, in the business of an attorney or solicitor, within fifty miles of a place named, and, if he should violate his agreement, Holbrook v. Tobey. that he would pay the plaintiff £1,000, it was held that the sum named must be considered liquidated damages, and not a penalty. In Sainter v. Ferguson, 7 C. B. 716, where a surgeon agreed that he would not practice within seven miles of a place named, under a penalty of £500, it was held that the £500 was not a penalty, but liquidated damages. In Atkyns v. Kinnier, 4 Exch. 776, where a surgeon agreed that he would not practice within certain limits named, and, for a breach of the agreement, would pay £1,000, it was held that the £1,000 was liquidated damages, and not a penalty. In Pierce v. Fuller, 8 Mass. 223, where the defendant agreed not to run a stage on a certain road, under the penalty of $290, it was held that the sum named must be regarded as liquidated damages. In Dakin v. Williams, 17 Wend. 447; S. C., 22 Wend. 201, where the defendant sold a newspaper establishment, and bound himself in the sum of $3,000, not to publish a rival paper, the sum named was held to be liquidated damages. In Mott v. Mott, 11 Barb. 127, where the defendant bound himself in the sum of $500 not to practice medicine within a certain town named, for five years, it was held that the $500 must be regarded as liquidated damages, and not as a penalty. In this case the court recognize the principle that where a certain sum has been agreed upon as damages for the violation of an agreement restraining a party from the use of a trade or profession, the sum named will, in general, be considered as liquidated damages. In Streeter v. Rush, 25 Cal. 67, a butcher sold out, and bound himself in the sum of $400 not to go into business again in the same place, without the plaintiff's consent; and in Duffy v. Shocky, 11 Ind. 70, the defendant agreed not to have a marble shop within certain territory under a penalty named; and in Gresselli v. Lowden, 11 Ohio St. 349, that he would not work a laboratory, claimed to be a nuisance to the plaintiff's premises, and if he did, to pay $3,000; and in Jaquith v. Hudson, 5 Mich. 123, a retiring partner agreed to forfeit $1,000 if he went into business again in the same place within a certain time; and in Cushing v. Drew, 97 Mass. 445, the defendant sold out an express business, and agreed not to engage in the same business again in the same place, so long as the Goss v. Coffin. plaintiff should continue in it; and in all these cases the sums named were held to be liquidated damages, and not penalties. We think the case now before us falls clearly within the principle of these decisions, namely, that where a party binds himself in a sum certain not to carry on, or allow to be carried on, any particular kind of business, within certain territory, or within a certain time named, the sum mentioned will, in general, be regarded as liqui lated damages, and not as a penalty. Of course, if the sum named should be out of all proportion to any possible damage which the plaintiff could sustain, the court would hold otherwise, upon the very reasonable presumption that the parties never could have intended that the sum named should be regarded as liquidated damages. But in all ordinary cases, where there is no such disproportion, we think the sum agreed upon should be the amount recoverable. In this case there is no such disproportion, and our conclusion is that the defendant must abide by the agreement which he thought proper to make. Judgment for plaintiff for $500. Goss v. Coffin. (66 Me. 432.) Bankruptcy — title of assignee. An assignee in bankruptcy, in the absence of fraud, takes no title to land of the bankrupt as against a grantee of the bankrupt by deed made before bankruptcy, although the deed is not recorded, and the receiver had no notice of it. RESPASS for taking and carrying away hay from lands in Bethel. Both parties claimed right to possession of the land through one Goss; the plaintiff by a life lease, dated March 24, 1859, and reciting that it was "in consideration of a deed of the farm of the same date from Thomas Goss, and that all crops of hay therefrom are at all times the sole property of the said Thomas Goss during his natural life." In consideration of the same deed, Daniel M. Goss gave a bond of the date of the lease, for the maintenance of Thomas Gos8. VOL. XXII. — 74 Goss v. Coffin. The defendant claimed directly from Josiah A. Bucknam, who took possession of the farm, as assignee in bankruptcy of Daniel M. Goss, as a part of his effects mentioned in the schedule by him in the proceedings in bankruptcy. There was evidence showing that Bucknam had no knowledge of the existence of the lease from Daniel M. Goss to Thomas Goss, until after he sold the hay to Coffin, the defendant. The defendant at the trial contended, as the lease from Daniel M. Goss to Thomas Goss had never been recorded, and the deed from Thomas to Daniel was recorded in the registry, December 20, 1859, and as the record showed the title to be in Daniel, when the petition in bankruptcy was filed against him by his creditors, May 14, 1874, that the lease was not valid against Bucknam, nor against the defendant who purchased the hay of Bucknam. He further contended that the lease was not in fact executed at the time of its date, but was, after the proceedings in bankruptcy, and in fraud of the creditors of Daniel M. Goss. The presiding justice, among other things, instructed the jury, that if the plaintiff's lease was executed before the bankruptcy of Daniel M. Goss, and was free from fraud, it gave to the plaintiff a better title than that of Bucknam, under whom the defendant claimed, and he was legally entitled to the possession of the farm, and the growing grass, and to recover for the hay in suit; but if the lease was not executed till after the bankruptcy, or was fraudulent as against the creditors of Goss, Bucknam, his assignee, had a legal right to enter and dispossess the plaintiff, and cut the grass, and the action could not be maintained against the defendant who held under him. The verdict was for the plaintiff for $55; and the defendant alleged exceptions. T. B. Swan, for defendant. David Dann, for plaintiff. VIRGIN, J. The defendant contended before the jury that the lease was in fact executed after the proceedings in bankruptcy, and in fraud of the creditors of the bankrupt. The presiding justice instructed the jury "that if it were executed after the bankruptcy of the bankrupt, or it were fraudulent as to his creditors, this action could not be maintained; but if it was executed before the |