It is not only a defence to a contract that it requires of the defendant, or that the defendant by it promised to do an act which the law forbade his doing, but it may also be a defence, it is unlawful to ask what it would be lawful to do. But the distinction exists, and may be well illustrated by certain contracts which are called "contracts in restraint of trade," and which the policy of the law is said to make illegal and void. If, therefore, an action be brought on such a contract to recover damages for carrying on the trade which it is agreed shall be abandoned, the defence of illegality may be made. And yet it is certain that every one is at full liberty to abandon or to vary his trade or occupation at his own pleasure. By these contracts, which the law makes void, such a promise is made; that is, one who exercises a certain trade, business, or occupation, promises to abandon the same, and thereafter exercise it no more.

* that by the contract the defendant undertook to do what the plaintiff was forbidden by law to ask of him. Generally, these two cases would be the same; for it is not often that that the money was to remain in deposit for a certain time, it was held, that such agreement was illegal and void, under the Revised Statutes, c. 36, § 57, as being a contract by the bank far the payment of money at a future day certain; and that no action could be maintained by the depositor against the bank upon such express contract; but that he might recover back the money in an action commenced before the expiration of the time for which it was to remain in deposit, the parties not being in pari delicto, and the action being in disaffirmance of the illegal contract; and that such action might be maintained without a previous demand. And the following cases were relied upon as showing that money advanced upon an illegal contract may be recovered back: Bartlett v. Vinor, Carth. 252; De Begnis v. Armistead, 10 Bing. 110; Langton v. Hughes, 1 M. & S. 696; Gallini v. Laborie, 6 T. R. 242; Springfield Bank v. Merrick, 14 Mass. 822; Wheeler v. Russell, 17 Mass. 258; Lacaussade v. White, 7 T. R. 636; Cotton v. Thurland, 5 id. 405; Smith v. Bickmore, 4 Taunt 474; Scott v. Nesbit, 2 Cox, 183; Parker v. Rochester, 4 Johns. Ch. 330; Wheaton v. Hibbard, 20 Johns. 290; Fitzroy v. Gwillim, 1 T. R. 153; Robinson v. Bland, 2 Burr. 1077; Tenant v. Elliott, 1 B. & P 3; Utica Ins. Co. v. Scott, 19 Johns. 1; Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Utica Ins. Co. v. Kip. 8 Cowen. 20; Utica Ins. Co. v. Cadwell, 8 Wend. 296.

(w) Foote v. Emerson, 10 Vt. 338; Dixon v. Olmstead, 9 Vt. 310; Pepper v. Haight, 20 Barb. 429; Lubbock v. Potts, 7 East, 449; Howson v. Hancock, 8 T. R. 575.

(x) See White v. The Franklin Bank, 22 Pick. 181; Peck v. Burr, 10 N. Y. (6 Seld.) 294.

(y) See ante, pp. *73, *74.

1 Hooker v. De Palos, 28 Ohio St 251.

The history of the law upon this subject is somewhat peculiar. So long ago as in times of the Year-Books the courts frowned with great severity upon every contract of this kind. But after a while this excessive aversion became much mitigated. Many exceptions and qualifications were allowed. These were gradually enlarged, until it became the settled rule that while a contract not to carry on one's trade anywhere was null and void, a contract not to carry it on in a particular place, or within certain limits, was good and enforceable at law.

If the series of cases in relation to this subject are critically examined, (z) l and considered in connection with the contem(z) The principal cases on this subject are here stated in chronological order. The first reported case to be found is in Year-Book, 2 Hen. V. fol. 6, pl. 26 (1416). There a writ of debt was brought on an obligation by one John Dier, in which the defendant alleged the obligation in a certain indenture which he put forth, and on condition that if the defendant did not use his art of a dyer's craft, within the city where the plaintiff, Ac., for a certain time, to wit, for half a year, the obligation to lose its force; and said that he did not use his art of dyer's craft within the limited time, which he averred, and prayed judgment, etc. Hull. In my opinion you might have demurred upon him, that the obligation is void, inasmuch as the condition is against the common law; and by G- (per Dieu), if the plaintiff were here, he should go to prison till he paid a fine to the King. In

Colgate v. Bacheler, Cro. Eliz. 872, it was held, that a bond conditioned to pay £20 if A shall use the trade of a haberdasher within a certain time and place, is void. But in Rogers v. Parrey, 2 Bulstr. 186, the court declared, that a man may be well bound and restrained from using his trade for a time certain and in a place certain. See also Jelliet v. Broade, Noy, 96, where the court declared substantially the same doctrine. See also Prugnell v. Gosse, Aleyn, 67; Clerk v. Tailors of Exeter, 8 Lev. 241. In Broad v. Jollyfe. Cro. Jac. 596 (1621), the principle was expressed thus: "Upon a valuable consideration one may restrain himself that he shall not use his trade in such a particular place; for he who gives that consideration expects the benefit of his customers. And it is usual here in London, for one to let his shop and wares to his servant when he is out of his apprenporary * alterations in the law or usage in other re spects, we cannot but think that much reason will be ticeship; as also to covenant that he shall not use that trade in such a shop or in such a street. So for a valuable consideration, and voluntarily, one may agree that he will not use his trade; for volenti non fit injuria." But the leading case on this subject is Mitchell v. Reynolds, Fort. 296,1 P. Wms. 181. There the condition of a bond was, that neither the defendant nor his assigns should keep a victualling house, or vend liquor therein, or in any other place within a mile of Rosemary Lane, during twenty-one years. The consideration was, that the defendant had assigned his interest in this house to the plaintiff. It was held, that this bond was valid, because grounded on a special consideration, set down in the bond, which made it a reasonable contract; but otherwise, if there had been no particular consideration to balance the restraint of trade. So a bond, conditioned not to set up trade in any part of England, is void, because this cannot be any advantage to the obligee, and serves only the purpose of oppression. This was followed by Cheesman v. Ramby, Fort. 207, 2 Stra. 739, where the condition of a bond was, that the defendant should not set up trade within half a mile of the plaintiff's then dwelling-house, or any other house that she, her executors or administrators, should think fit to remove to, to carry on the trade of a linen-draper. The consideration was, that the plaintiff was to take the defendant's wife as a hired servant to her, to assist her in the trade of linen-draper for three years without any money, whereas she did reasonably deserve £100 with such servant. It was. held, that the bond was valid; because it was grounded on a good consideration, and did not amount to a general restraint In Davis v. Mason, 5T.R. 118 (1793), the same question was before the court. There, in consideration that A would take B as an assistant in his business as a surgeon, for so lone a time as it should please A, B agreed not to practise on his own account for fourteen years, within ten miles of the place where A lived, and gave a bond for this purpose. This bond was held good in law. Still again, in Bunn v. Guy, 4 East, 190 (1803), a contract entered into by a practising attorney to relinquish his business, and recommend his clients to two other attorneys for a valuable consideration, and not to practise himself in such business within certain limits, and to permit them to make use of his name in their firm for a certain time, but without his interference, etc, was holden to be valid in law. Three years afterwards, in the same court, in Gale v. Reed, 8 East, 80 (1806), the question was presented in a somewhat different form. By indenture between A and B and C, dissolving their partnership as rope-makers, A and B covenanted to allow C, during his life, 2s. on every cwt. of cordage which they should make, on the recommendation of C, for any of his friends and connections, and whose debts should turn out to be good; and that A and B should stand the risk of such debts incurred, but should not be compelled to furnish goods to any of C's connections whom they should be disinclined to trust. And C covenanted not to carry on the business of a rope-maker during his life (except on government contracts); and that all debts contracted, or to be contracted, in his or their names, pursuant to the indenture, should be the exclusive property of A and B, and that C should, during his life, exclusively employ A and B, and no other person, to make all the cordage ordered of him, by or for his friends and connections, on the terms aforesaid, and should not employ any other person to make cordage, on any pretence whatsoever. Held, that the covenant by C to employ A and B exclusively to make cordage for his friends, and not to employ any other, etc., A and B not being obliged to work for any other than such as they chose to trust, was not illegal and void, as being in restraint of trade without adequate consideration, for the whole indenture must be construed together according to the apparent reasonable intent of the parties; and the general object being only to appropriate to A and B so much of C's private trade as they chose to give his friends credit for, so much only was covenanted to be transferred, and C was still at liberty to work for any of his friends who were refused to be trusted by A and B, by which construction the restraint on C was only coextensive, as in reason it could only be intended to be, with the benefit to A and B; and therefore the restraint on C could be no prejudice to public trade. And, in Hayward v. Young, 2 Chitty, 407 (1818), it was held, that a bond by an apothecary not to set up business within twenty miles, is not illegal, as in restraint of trade. In Bryson v. Whitehead, 1 Simons & S. 74 (1822), the Vice-Chancellor of England, Sir John