and the last stipulation in the above extract from the contract presupposes that he will become indebted to his workmen. and hence be obliged to give them "notes or other evidences of indebtedness," to be by them transferred for personal and family necessaries. Suppose such a case to occur. The lessee becomes indebted to his workmen. Perhaps the mine has not yet become productive, or the means of transportation are not obtainable, or the market for coal happens to be glutted. The workmen want provisions and clothing for themselves and families, and the notes of their employer to be negotiated in exchange for these necessaries; and these they can have, but in such a way only as to hedge them out from the benefit of competition among shopkeepers. They must take their notes to the store of Wick, and trust to his sensitive conscience and regard for fair and just dealing, first, as to the amount of discount they must allow him on their notes transferred to him, and second, as to the prices he will exact for the goods they receive in exchange. Again, the terms of the contract presupposes, and assuredly it is no violent presumption, that circumstances may exist which will render it necessary for the workman to anticipate his wages. Suppose such a case. Sorely needed wages are not yet earned. Perhaps he is ill, and has to await the return of health to earn them. At all events, pay-day is yet in the future. He goes or sends around. among the retail shops, and being known as one of Crawford & Murray's coal diggers, he finds that, from some inexplicable reason, prices of needed articles are high at Wick's, while at other shops they are comparatively low. The simple soul prefers to deal with some one of the latter. He goes to its proprietor, states his situation and necessities, and proposes the purchase of certain necessaries, and for the price of them to give an order on his employer, to be paid out of his wages when they accrue. The shopkeeper answers: "Yes, you can have what you need at the regular prices named, provided your employer will accept your order. Call again to-morrow, and in the meantime I will see him, and so be able to give you an answer." Accordingly on the next day, he calls again, and is told that his employer says that he is under a contract to accept no order from a workman unless it be given on Mr. Wick. And so he too is turned over to the alternative of

either doing without the things which he needs, or of subjecting himself to the tender mercies of "the party of the other part," to the store contract.

Having thus, in the most moderate colors which my estimate of the character and tendency of this store contract permits, endeavored to depict one of its characteristic features, I place it side by side with the time-honored principles announced by Chief Justice Wilmot, and submit it to the ordeal of those principles: "Whatsoever a man may lawfully forbear, that he may oblige himself against, except where a third person is wronged, or the public is prejudiced by it." "It is the duty of all courts of justice to keep their eyes steadily upon the interest of the public, even in the administration of commutative justice; and when they find an action is founded upon a claim injurious to the public, and which has a bad tendency, to give it no countenance or assistance in foro civili."

A majority of the court are of opinion that the particular segment of the store contract above commented on, being in restraint of trade, and naturally tending in its practical operation to inflict wrong, disadvantage and suffering upon third persons, is unlawful, and being in its character inseparable from the other provisions of the contract, it taints the whole: Metcalf, 216, 247; 11 Wheaton, 258.

I have invited special attention to that portion of the store contract above remarked upon, not because I regard the legal or moral character or the practical tendency of that portion of the contract as being exceptional when compared with its other provisions or with the contract as a whole, but rather by way of illustration of the character and tendency of the whole scheme which the contract embodies, organizes and discloses. It is but one of a litter, in which the family resemb'ance, apparent in the aspect of all, sufficiently establishes a common parentage, and precludes the hypothesis of a case of superfæetation by a plurality of sires.

It is said in Bacon's Abridgment, Vol. 2, p. 299, that "as to bonds entered into in restraint of trade, it seems to have been always admitted, and hath been frequently adjudged, that a bond restraining trade in general, as that a person shall not follow such a trade in any part of the kingdom, is void; the reasons whereof are that such bond tends to a

monopoly, and is against the public good; deprives the party of his means of livelihood; enables masters to lay hardships upon their servants" and "apprentices; tends to oppres sions," etc. And so on the next page it is added "if the condition of a bond is that the obligor shall not buy any sheepstrotters of any person of whom the obligee had bought or should buy, this is void, being a restraint of trade, and tending to a monopoly."

The majority of the court are of opinion that viewing this store contract as a whole, and the scheme which it embodies, it comes clearly within the reasons thus stated on the ground of which it is the policy of the law to avoid certain contracts, and to overthrow every superstructure which is reared upon them as a foundation. It tends to restrain trade in a manner operating naturally and almost inevitably to the injury of others; it tends to unwarrantable monopoly, to extortion, and to the depriving of the hireling of the full benefit of his wages when earned and of the benefit of such legitimate credit as he might have on the basis of wages to be earned.

I have not been able to find any direct precedent for holding that a contract whereby the influence of an employer over his employes is sold to, and for the benefit of a third person, is void; nor have I been able to find any to the contrary. But knowing, as we do, that the relation of employer and employe is, to a great extent, one of mutual dependence, but a dependence generally preponderating in favor of the employer and against the employe, and when it is easy to see that in the fast coming future, as manufacturing and mining operations are enlarged and multiplied, as population becomes more dense, and the labor market becomes more and more choked by the increasing number of competing hands for its employ, the dependence of the laborer on his employer will become greater and more influential, I can not but think, and, speaking for myself alone, I must say, that such ought to be the law; and it seems to me that such a case would come clearly enough within the scope of principles already established, to warrant a court, governed by a just and forecasting judicial policy, in declaring that a contract for the sale of an employer's influence over his employes, in respect to matters

of trade, is, in itself alone, so liable to abuse, so dangerous in its tendency, and so likely to tempt hard, grasping and greedy men to the easy practice of extortion and oppression upon a dependent class, as in the language of Chief Justice Wilmot, to forbid its receiving either "countenance or assistance in foro civili."

The store contract, then, being wholly unlawful and void, the giving up of a claim of damages for a breach of its stipulations furnished no consideration for any new contract. And in so far as such relinquishment of claim entered into, and constituted the basis of the contract sued on, so far, to say the least of it, the latter was without consideration; and the court below erred in refusing so to charge the jury, and in its distinct recognition of the validity of the store contract in its charge as given.

Judgment reversed, new trial awarded, and cause remanded to the common pleas.

DAY, C. J., and WELCH and WHITE, JJ., concurred.

SCOTT, J. I concur in the judgment of reversal, in this case, solely on the ground indicated in the first proposition of the syllabus.

WHEATLEY V. WESTMINSTER BRYMBO COAL CO

(Law Reports, 9 Equity, 538. Before the Vice Chancellor, 1869.)

1Minimum rent-2Instroke-Specific performance of working covenants refused. The plaintiffs let a coal mine to the defendant, receiving a minimum rent of £720, to be increased to £1,000 in case pits were sunk upon the estate, with a royalty upon all coal gotten beyond a certain quantity; and the lessee covenanted to work the mine uninterruptediy, efficiently and regularly, according to the usual or most improved practice. The lessee paid the minimum rent, but only raised a small quantity of coal by working through an adjoining property, without sinking pits upon the estate. Plaintiffs desiring a larger amount of working, whereby an increased royalty would accrue, filed a bill for specific performance of the covenants in the lease: Held, that there was no obligation upon the defendant to sink pits, although that might be the 1 Gilmore v. Ontario Co., 86 N. Y. 455; Scioto Co. v. Pond, 38 Oh. St. 65. 2 Whalley v. Ramage, 8 M. R. 52; Tiley v. Moyers, 25 Pa. St. 397; Post WORKINGS.

most efficient mode of working; and that so long as the minimum rent was paid the defendants could not be compelled to work the mine at all; that the lessee had committed no breach of contract, but if they had, the remedy was at law and not in equity; and that the court could not, by a reference to chambers, give effect to the covenant by direction as to the management of a coal mine. Bill dismissed with costs. Relation of covenant for sleeping rent to the covenant to work the mine considered, upon the view that so long as this rent is paid the covenant to work is inoperative, such rent being the alternative to a covenant for royalty and a payment to the lessor while he keeps his coal.

This was a bill filed by Thomas Randall Wheatley and Moreton John Wheatley against the Westminster Brymbo Coal and Coke Company, limited, for a declaration that the defendant company was bound to work the Gwersylt Coal and Ironstone Mine, of which the plaintiff's were the owners, uninterruptedly, efficiently, regularly and according to the usual and most approved practice adopted in working mines of coal and ironstone, according to the provisions of the lease under which the company held the mines, and also that the company was bound to work the "Two-yard," "Brassey" and "Main" seams in such a manner as not to get one and leave the others ungotten.

On the 12th of February, 1859, the plaintiffs, being seized in fee of the Gwersylt estate, in Denbighshire, entered into an agreement with the company to grant them the lease in question. By this contract the lessees were to have two years for proving the coal, paying for all that should be gotten during that time, and at the expiration of the two years the lease, dated the 7th of July, 1862, was made between the plaintiffs of the one part and the defendants of the other part, by which the plaintiffs granted, demised and leased unto the defendants, their successors and assigns, the mines, seams, veins and beds of coal, and balls and bands of ironstone, under the Gwersylt estate, containing 465 acres, with full power and license to the lessees to enter upon the estate, and to erect or remove buildings and machinery necessary for setting the coal and iron works afoot, and to bore and search for coal, and to drive, sink and use any pit, shaft or tunnels, or, if necessary, subterraneous work, and to do all other acts, matters and things within, through, over or on the estate for working the mines