ever a sufficient consideration appears to make it a proper and useful contract, &c., it ought to be maintained. But there is one material difference between a bond for payment of money, or for some act not against common right, and a bond in restraint of trade. The former needs no consideration, or rather the law presumes a consideration, and will not allow it to be questioned unless fraud be shown; but the latter must be made on a good and valuable consideration, or it will be void.2 Whether it is essential that the consideration should appear on the face of the instrument has never been decided. In the case first quoted the Court intimated an opinion that it might be averred in support of a bond or other contract under seal, and Best, J., in Homer v. Ashford,3 threw out a dictum to the same effect. And it seems the rules of evidence do not prohibit proof of a consideration consistent with the deed, though if it profess to be made on a particular consideration, evidence of a different consideration would be inadmissible. It is clear, however, that the consideration must be shown by the party pleading, in order that the Court may judge of its sufficiency in point of law. On this ground, it is probable the cases referred to in Prugnell v. Gosse proceeded. The one was a bond not to use the trade of a mercer in Nottingham, and the other a bond not to carry on the business of a haberdasher for four years, and both these were adjudged void. It is of course advisable, even if it should be held not to be necessary, to set out the consideration in the instrument, both to save the necessity of bringing evidence, and to estop the defendant from afterwards disputing it. In one case, where the declaration averred, that the defendants, "for the considerations in the deed mentioned," covenanted, &c., it was held, on general demurrer, that the consideration must be taken to be good and sufficient, and the plaintiff had judgment. In such cases, therefore, the objection must be taken by special demurrer.

If the contract be not under seal, the consideration must be set out in the instrument as well as averred in the declaration, since the law presumes nothing in favour of a parol contract.

Plow. 308; 7 T. R. 477.

2 See also Prugnell v. Gosse, All. 67; 10 Tailors of Ex. v. Clarke, 1 Sho. 350. 3 Bing. 322; 11 Moore, 91.

4 All. 67.

Homer v. Ashford, 3 Bing. 322.
Y

VOL. XXI. NO. XLIV.

2. As to the degree of restraint which the law allows. The modes by which a party may be restricted in the exercise of a trade or business are too diversified to admit of classification. The most common species of restraint is that by which a person is prohibited from carrying it on within certain limits, as to which the principle is thus stated by Lord Ellenborough: "The restraint on one side meant to be enforced should be coextensive only with the benefits meant to be enjoyed on the other." And by Tindal, C. J.: "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." This principle is equally applicable to every other species of restraint, and is the only measure the law could propound. To lay down any topical boundaries, would be to put a limit to men's enterprise, and thus defeat the end and object it contemplates, while it would be equally improper with a view to the rights of the restrained party, to leave them open to whatever limits the cupidity of the other might suggest.

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In the earlier cases on the subject, the restriction is generally confined to a certain spot, so that the question of extent did not arise. In Davis v. Mason, the condition of the bond was, not to exercise the business of a surgeon, apothecary, and man midwife within the distance of ten miles from Thetford, and the Court held it good. In the subsequent case of Haywood v. Young, twenty miles were considered not an unreasonable limit for a surgeon. In Hardy v. Moreton, the defendant, on dissolving partnership with the plaintiff, entered into a bond not to sell any quantity of brandy less than six gallons within the cities of London or Westminster, or within five miles thereof, and this was upheld both at law and in equity. But the strongest case is that of Bunn v. Guy,7 where it was held that a limit of 150 miles round London could not be considered unreasonable for an attorney. This case was recognised in the recent case of Horner v. Graves,8 where it was held, however, that an agreement not to practise 1 Gale v. Reed, 8 East, 80. 2 Young v. Timmins, 1 Tyr. 226.

9 Broad v. Jollyfe, Cro. Jac. 569; Bragg v. Tanner, Palm. 172; Rogers v. Parry, 2 Buls. 136; Prugnell v. Gosse, All. 67.

as a surgeon-dentist within 100 miles of York, was void for its extent.

The limit assigned by judicial decision as necessary for one kind of business, can of course afford no criterion for any other. The reasonableness of the restraint depends on the particular nature of the business, and the extent to which it may be carried on. The decision in Bunn v. Guy was sanctioned on the ground that an attorney might do so much by correspondence and agents, while the business of a surgeon could not be carried on but by personal attendance; and therefore a limit which was reasonable and necessary for the one, was highly unreasonable and unnecessary for the protection of the other.

It is observable that many other circumstances which would seem involved in the inquiry, whether a given limit be necessary to another's interest, such as his capacity and skill, the populousness of the neighbourhood, the number of competitors, &c. &c., have never been taken into account in estimating the legality of the restraint, though in the case of Hitchcock v. Coker, the Lord Chief Justice intimated that such circumstances might affect the question of extent. But great difficulties would follow the introduction of such an inquiry. Circumstances such as these are of too fluctuating and adventitious a character, besides being too difficult of proof, to afford a safe ground of decision. The better mode seems to be in dealing with this to confine the inquiry, as in the question of consideration, to what might under any circumstances and to any individual be a necessary limit for the protection of the business in question, leaving the rest to the discretion of the contracting parties. It is for this reason that the legality of the restraint is a question for the Court, not for the jury. If these circumstances were taken into the account, it would be purely a question of fact, and the jury alone must decide it.

It is not necessary that the contract should contain any limitation as to time. In Broad v. Jollyfe, the agreement was, that the defendant would not "any longer" keep a shop in Newport. In Bragg v. Tanner, the assumpsit alleged was to pay 1007. if the defendant "thenceforward" kept a draper's

shop in Newgate Market. And in Prugnell v. Gosse,1 Cheesman v. Nainby, and the more recent cases of Young v. Timmins,3 Horner v. Graves, and Bunn v. Guy, above alluded to, the restraint was indefinite in point of time. But in Cheesman v. Nainby, the counsel for the plaintiff seemed to admit that the bond could not be put in suit after the death of the obligee; and the Court of Queen's Bench were of opinion, in the case of Hitchcock v. Coker, that an agreement "that if the defendant should at any time thereafter carry on the trades of a chemist and druggist, or either of them, within the town of Taunton, or within three miles thereof, then that he would pay to the plaintiff, his executors, administrators, or assigns, the sum of 5007.," was void, the prohibition attaching on the defendant after the plaintiff's death, and being therefore larger than was necessary for his protection. But the Court of Exchequer Chamber reversed the judgment: "The good-will of a business," said Tindal, C. J. in giving judgment, " is a subject of value and price. It may be sold, bequeathed, or become assets in the hands of the personal representative of the trader. And if the restriction as to time is to be held to be illegal if extended beyond the period of the party, by himself carrying on the trade, the value of such good-will, considered in those various points of view, is altogether destroyed. If, therefore, it is not unreasonable, as undoubtedly it is not, to prevent a servant from entering into the same trade in the same town in which the master lives, so long as the master carries on the trade there, we cannot think it unreasonable that the restraint should be carried further, and should be allowed to continue if the master sells the trade or bequeaths it, or it becomes the property of his personal representatives; that is, if it is reasonable that the master should by an agreement secure himself from a diminution of the annual profits of his trade, it does not appear to us unreasonable that the restriction should go so far as to secure to the master the enjoyment of the price or value for which the trade would sell, or secure the enjoyment of the same trade to his purchaser, or legatee or executor. And the only effectual mode of doing this appears to be, by making the restriction of the

servant's setting up or entering into the trade or business within the given limit co-extensive with the servant's life.”

Another class of cases depending upon the same principle is where the restraint has reference to dealing with particular customers. The first of this kind is the case of Hunlocke v. Blacklowe, reported in 2 Saund. 156, in which the defendant having assigned his business to the plaintiff, bound himself not to exercise the trade of a tailor with any of the customers named in the schedule. The judgment for the plaintiff proceeded on another ground; but in a note the learned editor says, "though a bond not to use a trade anywhere in England is void, as being too general a restraint of trade, yet if such bond be not to use a trade at a particular place it is good. For the same reason, it seems, a bond not to use a trade with particular customers by name, if founded on a good consideration, is also valid." The case of Thompson v. Harvey1 is not an authority against this position. The restraint there is of a different nature, and it does not appear that the obligee could have any interest in enforcing it. It was an action of debt on bond conditioned "not to buy sheep's feet, &c. of any others but such and such, and not to buy above a certain quantity.” The latter stipulation is clearly illegal, and the Court held the instrument void.

As a party may be prohibited by contract from dealing with particular customers, so he may be bound to trade exclusively with another. Restraints of this kind frequently occur in public house leases, obliging the tenant to buy all his beer, &c. of the lessor, and though the Courts have frequently expressed their disapprobation of them, they have been uniformly upheld. There is one condition, however, which the law incorporates into all contracts of this kind, namely, that the article supplied be good and saleable. In Thornton v. Sherratt, a case turning on the same principle, the defendant, an innkeeper, having compounded with his creditors, they had given him a release, which contained a proviso that he should continue to deal with them in the articles of their respective trades during the residue of his term in the public house which he then occupied. The action was brought by a brewer, and the question submitted to the jury was, whether the beer supplied by him was good and saleable, which direc