giving judgment, Parke, B. said, "The rule as laid down by Lord Macclesfield (e) and Lord Chief Justice Willes (f) is, that total restraints of trade, which the law so much favours, are absolutely bad, and that all restraints, though only partial, if nothing more appear, are presumed to be bad; but, if the circumstances are set forth, that presumption may be excluded, and the Court are to judge of those circumstances and determine whether the contract be valid or not; Mitchell v. Reynolds (g). Contracts in restraint of trade are in themselves, if nothing shew them to be reasonable, bad in the eye of the law;' per Tindal, C. J., in Horner v. Graves (h). Therefore, if there be simply a stipulation, though in an instrument under seal, that a trade or profession shall not be carried on in a particular place, without any recital in the deed, and without any averments shewing circumstances which rendered such a contract reasonable, the instrument is void. Such are the cases cited in Prugnell v. Gosse (i), and the case of The Ten Tailors of Exeter v. Clarke (k), and Claygate v. Bachelor (1); Year Book, 2 H. 5, fo. 5 (m). But if there are circumstances recited in the instrument (or probably if they appear by averment), it is for the Court to determine whether the contract be a fair and reasonable one or not, and the test appears to be-whether it be prejudicial or not to the public interest, for it is on grounds of public policy alone that these contracts are supported or avoided. Contracts for the partial restraint of trade are upheld-not because they are advantageous to the individual with 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 (e) In Mitchell v. Reynolds, 1 P. Wms. 180. (f) Willes, 388, Gunma kers' Company v. Fell. (g) 1 P. Wms. 196. (h) 7 Bing. 744. (i) Aleyn, 67, (k) 2 Show. 350. (1) Owen, 143. See S. C. Cro. Eliz. 872, nom. Colgate v. Bachelor. (m) See note, ante, p. 52, as to this case in the Year Book. in effect the sale of a goodwill, and offers an encouragement to trade, by allowing a party to dispose of the fruits of his industry; Prugnell v. Gosse (n); Broad v. Joliffe (o); Jelliott v. Broad (p). 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 profession within certain limits; Chesman v. Nainby (q). In such a case the public derives an advantage in the unrestricted 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." Nainby. Upon these principles agreements in partial restraint of trade have, in a variety of instances, been upheld and enforced. Thus in Chesman v. Nainby (q), where the Chesman v. defendant, who was a linendraper, on taking the plaintiff's wife, before marriage, into her service, made her enter into a bond not to carry on the business of a linendraper within half a mile of the defendant's house, the bond was held good. And so where the defendant (r), in consideration that Colmer v. the plaintiff, who was a tallyman, would take him into Clark. his family and instruct him in the trade, with a provision of meat, &c., and an allowance of twenty pounds wages a year, promised to serve the plaintiff for five years, and not to exercise the trade himself for seven years after that time within the city and liberty of Westminster and bills of mortality; the agreement was held good. Mason. And in another case (s) where the defendant, in con- Daris v. sideration of the plaintiff's taking him into his service as assistant in the business of a surgeon, &c., agreed with the plaintiff not to exercise that business on his own (n) Aleyn, 67. (q) 2 Ld. Raym. 1456; S. C. 2 Str. 739. (r) Colmer v. Clark, 7 Mod. 230; S. C. Cas. temp. Hard wicke, 53. (s) Davis v. Mason, 5 T. R. 118; and see Hayward v. Young, 2 Ch. Rep. 407, where a bond by an apothecary not to set up business within twenty miles was upheld. Sainter v. Ferguson. How distance to be measured. Leigh v. Hind. Whether or not is a account within the distance of ten miles from Thetford, where the plaintiff resided, for fourteen years; the agreement was held good. And in a recent case (t), an agreement by the defendant, in consideration that the plaintiff would engage him as assistant to the plaintiff as a surgeon and apothecary, that the defendant would not at any time practise in his own name, or in the name or names of any other person or persons as a surgeon or apothecary at M., or within seven miles thereof, was also held good. When an agreement not to carry on a trade within a certain distance of a particular place has been established, the distance should be measured by the nearest mode of access, and "that is to be considered the nearest way of access which a person, making the best of his way from house to house, would be likely to take that is, using the footway where there was one and where it was most convenient to use it, and the carriage way, either where it could be most conveniently used, or where there was no footpath" (u). And "the nearest mode must be taken according to the existing state of the streets. If, subsequently to the covenant, the covenantor took a public-house, the distance of which, by the then shortest way of access, would be greater than that agreed upon from the one he sold, and a new street were afterwards opened whereby the distance, by the shortest way of access, became less than that mentioned in the covenant, the covenantor would thereupon incur a breach of covenant" (v). But although agreements in partial restraint of trade are in many cases upheld, yet, in order to be valid, they must be reasonable, even though under seal (w). The reasonable question, whether or not any particular agreement of question for this sort is reasonable, is one for the determination of the Court (r). No certain precise boundary can be There is no laid down, within which the restraint would be reasonprecise rule able, and beyond which, excessive. But "a better test the Court. (t) Sainter v. Ferguson, 7 C. B. 716. (u) Per Park, J., in Leigh v. Hind, 9 B. & C. 775; and see Atkyns v. Kinnier, 19 Law J., N. S., Exc. 132. But see Reg. v. The Inhabitants of Saffron Walden, 9 Q. B. 76. (v) Per Littledale, J, in Leigh v. Hind, ubi supra. (w) See Hutton v. Parker, Dowl. 739, and cas. cit. infra. (x) Homer v. Ashford, 3 Bing. 322; Mallan v. May, 11 M. & W. 653. ject. A test. cannot be applied to the question-whether reasonable on the subor not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party in favour of whom it is given, and not so large as to interfere with the interests of the public. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either, it can only be oppressive, and if oppressive, it is, in the eye of the law, unreasonable" (y). Where res Applying this test to an agreement (2), whereby the Horner v. defendant covenanted with the plaintiff that he, the Graves. defendant, would faithfully serve the plaintiff as an traint held assistant in the business and profession of a surgeon- unreasondentist for five years: and the plaintiff, in consideration able. of such service and of the covenants of the defendant, did covenant with the defendant to pay him the yearly salaries therein mentioned, and to instruct him in the business or profession of a surgeon-dentist: and the defendant covenanted that he would, during the said term of five years, faithfully and diligently serve the plaintiff as his assistant, and would not depart from his service without giving him three calendar months' notice in writing of such his intention; "and that the defendant should not nor would, at the expiration or other sooner determination of the said term (provided the said plaintiff were then living and practising in the said business or profession), exercise and practise the said business or profession at or within the distance of one hundred miles of the city of York, without the previous consent in writing of the said plaintiff, under the penalty of 1000l. the restriction was held unreasonable, and judgment arrested. Upon the same principle, part of the agreement in Mallan v. Mallan v. May (a),-that part namely which restrained May. the defendant from practising as a surgeon-dentist in (y) Per Tindal, C. J., in Horner v. Graves, 7 Bing. 743; and see Mallan v. May, ubi supra; Ward v. Byrne, 5 M. & W. 548, 561; Procter v. Sargent, 2 M. & G. 32. As to how far an agreement to serve a particular master, and no one else, for seven years, is void, as being an unreasonable restraint of trade, where the (z) Horner v. Graves, ubi (a) 11 M. & W. 653, ante. p. 53. 58 Price v. Cases in which res to be reasonable. any of the towns or places in England or Scotland where the plaintiffs, or the defendant on their account, might have been practising before the expiration of the defendant's service,-was held to be unreasonable and void. And in Price v. Green (b), a covenant not to carry on the trade of a perfumer, toyman, and hair merchant within the cities of London and Westminster and the distance of six hundred miles from the same respec· tively, was held to be void as to the six hundred miles, though good as to London and Westminster. But agreements not to carry on the business of an traint held attorney in London, or the distance of one hundred and fifty miles round (c); or in Great Britain for the space of twenty years (d); have been held not unreasonable. And "five miles from Northampton Square in the county of Middlesex," in the case of a milkman (e), and "London," in the case of a surgeon-dentist, were considered not unreasonable distances (f). Agreements not under traint of trade must shew con In the case of an agreement in partial restraint of seal in res trade not under seal, it is necessary, not only that it should be reasonable, but also that there should appear to be a consideration to support it,-otherwise it would sideration. be merely nudum pactum and void. An opinion at one time prevailed (g), or, more accurately speaking, was supposed to prevail, that the Courts would also inquire Courts will into the adequacy of the consideration. But that opinion not inquire is now entirely exploded (h). into ade quacy of consideration. If an agreement in partial restraint of trade be in other respects valid, it is no objection that the restraint be imposed for the whole life of the party subject to it. restraint (in Thus where it appeared that the plaintiff (i), who was Duration of (g) See per Alderson, B., in Pilkington v. Scott, 15 M. & W. 660. (h) Hitchcock v. Coker, 6 A. & E. 456; and see also Archer v. Marsh, 6 A. & E. 959; Leighton v. Wales, 3 M. & W. 551; Pilkington v. Scott, ubi supra; Sainter v. Ferguson, 7 C. B. 716; and see per Parke, B., in Moss v. Hall, 5 Exc. 49, 50. (i) Hitchcock v. Coker, 6 A. & E. 438. |