(m) Pearce v. Brookes, 35 L. J. (Ex.) 134; L. R. 1 Ex. 213.

(n) 3 Q. B. D. 549, 551; 47 L. J. (Q. B.) 594, 595. See also Smith v. Sorby, 3 Q. B. D. 552, n.

1 Walker v. Gregory, 36 Ala. 180.-s.

Next, with regard to the second class-those, namely, which are void as contravening the policy of the law. It might, perhaps, have seemed more simple to have ranked this and the former in one and the same class, since it is obvious, that, wherever a contract has an immoral tendency, there it is opposed to the policy of the law. But the reason for dividing them into two classes is, that there are some contracts which involve no offence against the laws of morality, and nevertheless are opposed to policy; such, for instance, as contracts in general *restraint of trade, and which, therefore, are arranged in a class by themselves.

There seems to be nothing obviously immoral in a man's promising or covenanting not to carry on his trade within the limits of England. Nevertheless, such a covenant or promise has been held totally void. This was decided so long ago as in the reign of Henry V.; in the Year Book of the 2nd year of which reign, fol. 5, pl. 26, a bond restraining a weaver from exercising his trade was held void: and Judge Hull flew into such a passion at the sight of it, that he swore on the bench, and threatened to send the obligee to prison till he had paid a fine to the King; upon which Lord Macclesfield observes, in Mitchell v. Reynolds (o), "that he could not but approve of the indignation the judge expressed, though not his manner of expressing it." Accordingly such contracts were declared to be void in that case, and have ever since been held void (p).

" The law," said Best, C. J., in Homer v. Ashford (q), "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.

(o)l P.Wms. 181, 194; 1 Smith, L. C. 417,428,8th ed.; Gunmakers' Company v. Fell, Willes, 384.

(p) At any rate until quite recently. See post. p. *223. (q) 3 Bing. (11 E. C. L. R.) 322, 326.

Illegal Contracts

But here arises a distinction, which was first illustrated by Lord Macclesfield, in the celebrated case of Mitchell v. Reynolds, before mentioned, 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 Chief Justice Best), at 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." "Contracts for the partial restraint of trade are upheld," said the Court of Exchequer in Mallan v. May (r), "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 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 (r1). 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 (s). In such a case the public derives an advantage in the unrestrained choice which such 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." But it must always be borne in mind, "that contracts in restraint of trade are iv themselves, if nothing more appears to show them reasonable, bad in the eye of the law " (t)1

(r) 11 M. &. W. 563.

(r1) Prugnell v. Grosse, Alleyn, 67; Broad v. Jollyffe, Cro. Jac. 596; Jelliott V, Broad, Noy, 98.

Examples of what are considered partial restraints of trade are numerous in the books; they are usually partial in respect of time, as not to exercise it for a specified period; or in respect of space, as not to trade within a given district; and *a restraint limited as to space may be unlimited as to time and yet good (u). In Gale v. Reed (x), the contract was for one party not to trade with a certain class of persons in the mode specified, provided the other party traded with them therein. The defendant covenanted not to exercise the business of a ropemaker during his life, except on government contracts, and to employ the plaintiffs exclusively to make all the cordage which should be ordered of him by his connexion. The plaintiffs were to allow him 2s. per cwt. on the cordage made by them for such of his connexion whose debts should turn out to be good, but were not to be compelled to furnish goods to any whom they were not willing to trust. The Court considered that the defendant was not prevented from supplying those of his connexion whom the plaintiffs rejected, and consequently that the restraint to follow his trade was partial only. Such restraints were upheld in the case of Chesman v. Nainby, decided in the House of Lords upon writ of error (y), in which the agreement was, not to carry on the trade of a linendraper within half a mile of the place where the party was to serve as assistant; in that of Bunn v. Guy (z), where the agreement was, that one attorney *in London selling his business to others should not practice as an attorney within London, or 150 miles thereof; and in that of Proctor v. Sargent (a), where the servant of a cowkeeper in London engaged not to carry on the same trade as his master within five miles for twenty-four months after the determination of his service. 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.