expressed, though not of his manner of expressing it." Accordingly, such contracts have ever since been held void :

"The law," said Mr. J. Best, in Horner v. Ashford, 3 Bingh. 328, "will not allow or permit any one to restrain a person from doing what his own interest and the public welfare require that he should do. Any deed, therefore, by which a person binds himself not to employ his talents, his industry or his capital, in any useful undertaking in the kingdom would be void."

But here arises a distinction, which was first established by Lord Macclesfield, in the celebrated case of Mitchell v. Reynolds, 1 P. Wms. 181, and which has ever since been upheld. It is, that, though a contract in general restraint of trade is void, one in partial restraint of trade may be upheld; provided the restraint be reasonable, and provided the contract be founded upon a consideration. "It may often happen," *continued Lord Wynford, then Mr. J. Best, at [*127] the place which I have just cited, "that individual interest and general convenience render engagements not to carry on trade, or act in a profession, at a particular place proper." (a) Such restraints were upheld in

(a) This judgment is cited in that of the subsequent case of Mallan v. May, 11 M. & W. 653, where the principle on which partial restraints of trade are held legal, is thus enlarged on by the Court of Exchequer :

"Contracts for the partial restraint of trade are upheld not because they are advantageous to the individual to whom the contract is made, and a sacrifice, pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints on trade are perfectly consistent with public convenience and the general interest, and have been supported; such is the case of the disposing of a shop in a particular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is in effect the sale of a good-will, and offers an encouragement to trade, by allowing a party to dispose of all the fruits of his industry; (Prugnell v. Grosse, Alleyn, 67; Broad v.

*Chesman v. Nainby, 2 Str. 739, which was [*128] carried to the Lords, and is reported in 3 Bro. P. C. 349, in Davis v. Mason, 5 T. R. 118; in Proctor v. Sargent, 2 M. & Gr. 31, 40 E. C. L. R., and in Bunn v. Guy, 4 East, 190, where an attorney bound himself not to practise in London, or one hundred and fifty miles from thence. And, indeed, nothing, as you must be well aware, can be more common upon a dissolution of partnership, than for the retiring partner to covenant that he will not set up the same trade within a certain distance to the injury of the continuing partner. But these restraints must, in order to be upheld, be reasonable: that is, a greater restriction must not be wantonly imposed than can be necessary for the protection intended; (see Ward v. Byrne, 5 M. & W. 548; and the judgment in Horner v. Graves, 7 Bingh. 743, 20 E. C. L. R.; and such a contract, to be good, must be founded on a consideration, even although it be made by deed; see Hutton v. Harker, 7 Dowl. 439. (a)

Joliffe, Cro. Jac. 596; Jelliott v. Broad, Noy, 98.) And such is the class of cases, of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer, or professional man taking a servant or clerk into his service, with a contract that he will not carry on the same trade or professional duties within certain limits; (Chesman v. Nainby.) In such a case the public derives an advantage from the unrestrained choice which such a stipulation gives to the employer of able assistants, and the security it affords that the master will not withhold from the servant instruction in the secrets of his trade, and the communication of his own skill and experience, from the fear of his afterwards having a rival in the same business."

(a) A liberal discretion is necessarily left to the courts to determine what is or is not a reasonable restraint: it is purely a question of law, and not for the jury; (Mallan v. May.) In Proctor v. Sargent, supra, Tindal, C. J., thus upholds the rule laid down in Hitchcock v. Coker, "I think the rule is properly laid down in Hitchcock v. Coker, where it is said, 'that where the restraint of a party from

It was at one time thought that the Court

would enter into the question of the adequacy [*129]

carrying on a trade is larger and wider than the protection of the person with whom the contract is made can possibly require, such restraint must be considered as unreasonable in law, and the contract which would enforce it must therefore be void.' Although a contract restraining a party from carrying on the business of a dentist within 100 miles round York was decided to be unreasonable in Horner v. Graves, it does not follow that we are to hold in this case that a radius of five miles is also unreasonable. This must depend upon the population, the nature of the business, and how far it is ramified in that radius, and upon other circumstances of which we are not bound to take notice. Also I think that when we are deciding upon the unreasonableness of a contract of this kind, we cannot leave out of consideration the duration of the restraint; for although I admit that where we once hold a restriction to be unreasonable in point of space, the shortness of the time for which it is imposed will not make it good; yet where the question is, whether the restraint is unreasonable or not in point of space, that which would be unreasonable, were it to continue for any length of time, may not be so when it is to last only for a day or two." In Horner v. Graves, Tindal, C. J., laid it down as the best test 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." The Court of Exchequer, in the judgment in the case of Mallan v. May, cite the rule, and thus review the cases :

"Applying this rule and referring to the analogous authorities, it appears to us that for such a profession as that of a dentist, the limit of London is not too large; in Davis v. Mason, 5 T. R. 118, Thetford, and ten miles round; in Hayward v. Young, 2 Chitty, 407, 18 E. C. L. R., twenty miles round a place was held a reasonable limit in the case of a surgeon; in that of an attorney, London, and 150 miles round, in Bunn v. Guy, 4 East, 190; and in Proctor v. Sargent, 2 Man. & Gr. 20, 40 E. C. L. R.; 2 Scott; N. R. 289, five miles from Northampton Square, in the county of Middlesex, was held reasonable in the case of a milkman. And it makes no difference, in our opinion, that it appears on the face of this record that London contains a million of inhabitants. We doubt, indeed, whether the comparative populousness of particular districts ought to enter into consideration at all; if it did, it would be difficult to exclude others, such as the number of men of the same profession, the habits of the

[*130]

of this consideration, and *would hold the contract void if the consideration were inadequate. However, it has lately been decided in the Exchequer chamber, after great consideration, that the question of adequacy or inadequacy cannot be entertained, but that the parties must judge of that for themselves; Archer v. Marsh, 6 A. & E. 966, 33 E. C. L. R.; Hitchcock v. Coker, 6 A. & E. 439; which cases you may perhaps remember my citing on the last evening as strong instances of the unwillingness of the Courts to enter into the question of the inadequacy of consideration at all. (b)1

people in that neighbourhood, and other matters of a fluctuating and uncertain character, which would produce great difficulty and embarrassment in determining such a question."

This clearly developes the principle which the Courts will apply to each case according to its facts; Rannie v. Irvine, 8 Scott, 674, and Green v. Price, 13 M. & W. 695, proceeded on the same principle; the former deciding that an agreement not to supply the same customers, as the master, was valid; and the latter, that an unreasonable restraint as to limit did not vitiate another reasonable restraint contained in the same bond. [So, in the very recent case of Elves v. Crofts, 10 Com. Bench, 259, it was urged that the class of cases cited, proceeded upon the assumption that the restriction was necessary for the protection of the covenantee, and hence that it must be construed as ceasing to operate in a case where the covenantee or his assigns had ceased to carry on the business. But it was held that if the covenant were binding to its full extent when made, its signification could not be varied by any subsequent occurrence, and that to hold otherwise, would be to render its import uncertain, and to impair its efficiency for that protection which the law contemplates as just.]

(b) See ante, p. 95, et seq.

1 See the note to Mitchell v. Reynolds, in 1 Smith's Leading Cases, 430. In this country, the general principle that contracts in restraint of trade, so far as they may prevent the exercise of a particular calling, are void, has been frequently recognised and enforced, as for example, a contract never to be engaged in the business of founding iron, Alger v. Thatcher, 19 Pick. 51; manufacturing chocolate, Vickery v. Welch, Id. 523; wool-carding, Pyke v. Thomas, 4 Bibb, 486, and the like, while the exception has been equally

restraint of mar

Another example of contracts illegal because in contravention of public policy, is afforded by those cases in which contracts in general riage have been held void. Peers, 4 Burr. 2225, a defendant entered into the following covenant:

Thus in, Lowe v.

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established of sanctioning such contracts where the restraint applies only to a particular locality; Pierce v. Fuller, 8 Mass. 223; Pierce v. Woodward, 6 Pick. 206; Noble v. Bates, 7 Cowen, 307; Palmer v. Graham, 1 Parson's Eq. Cases, 476. It is stated in the text that the later English cases show an unwillingness to enter into the question of adequacy of consideration, and a strong instance of this may be seen in the very recent case of Atkyns v. Kinnier, 4 Excheq. 776, where the defendant bound himself in the sum of £1000, as liquidated damages, not to practise as a physician within two miles and a half of a certain place. He did practise a few feet within that distance, measuring by a less frequented road than the usual thoroughfare, though by the latter he was beyond that distance, and there was no evidence that the plaintiff had sustained any damage from his having done so. The jury having, under the direction of the Court, found a verdict for £1000, the Court of Exchequer discharged a rule to reduce the damages to a shilling, and held that the defendant must abide by the contract he had made. But in New York, it has been held, that, prima facie, the law presumes even limited restraints on trade to be void, and that they will only be upheld upon sufficient proof of their reasonableness, both as to consideration and usefulness; Chapel v. Brockway, 21 Wendell, 158; Ross v. Sadgbeer, Id. 166. In the latter case, to a declaration on a bond conditioned that the defendant should not manufacture pearl ash for ten years, nor within forty miles of a certain place, a general demurrer was sustained by the Court, on the ground that the consideration imported by the seal did not afford a presumption of such circumstances and reasons as were requisite to uphold such a contract. Prior and subsequent decisions in that State have not, however, observed such a rule, and an agreement not to practise as a physician within six miles, or pay $500 for every month of such practice (Smith v. Smith, 4 Wendell, 468), and an agreement not to set up a rival newspaper, or pay $3000 (Dakin v. Williams, 17 Wend. S. C. in error, 22 Id. 201), were respectively enforced, and the sums named held to be liquidated damages and not a penalty.