(t) Mouflet v. Cole, L. R. 8 Ex. 32 (Ex. Ch.), S. C. 42 L. J. (Ex.) 8, affirming L. R. 7 Ex. 70; S. C. 41 L. J. (Ex.) 28; Duignan v. Walker, Johns. 446; 28 L. J. (Ch.) 867.
(u) Young v. Timmins, 1 C. & J. 339. See also Collins v. Locke, 4 App. Cas. 674; 48 L. J. (P. C.) 68.
(x) 7 Dowl. 739.
Tiff within ten miles of the town of Sheffield, some consideration must be shown on the declaration, in order to make it good; and the Court refused to presume one. But where an artisan agreed with manufacturers to serve for seven years, and not work for any other without leave; that in times of depression of trade he should be paid part only of his wages, but if ill, another was to be employed in his room; and that they should pay him wages and house rent, but be at liberty to dismiss him on a month's notice; the Court, thinking that the manufacturers were bound to employ him for seven years, subject to their power of dismissal, held that there was a good consideration for the artisan's promise to serve them exclusively(y).1
(y) Pilkington v. Scott, 15 M. & W. 657; Sainter v. Ferguson, 7 C. B. (62 E. C. L. R.) 716. See 1 Smith, L. C. 435-437, 8th ed.
1 See the note to Mitchell v. Reynolds, in 1 Smith's L. C. 736. In this country, the general principle that contracts in restraint of trade, so far as they may prevent the exercise of a particular calling, are void, has been frequently recognized and enforced, as, for example, a contract never to be engaged in the business of founding iron: Alger v. Thatcher, 19 Pick. 51; manufacturing chocolate : Vickery v. Welch, lb. 523; wool-carding : Pyke v. Thomas, 4 Bibb, 486, and the like; while the exception has been equally established of sanctioning such contracts where the restraint applies only to a particular locality: Pierce v. Fuller, 8 Mass. 223; Pierce v. Woodward, 6 Pick. 206.; Nobles v. Bates, 7 Cow. 307; Palmer v. Graham, 1 Parsons' Eq. 476. It is stated in the text that the later English cases show an unwillingness to enter into the question of adequacy of consideration, and a strong instance of this may be seen in the very recent case of Atkyns v. Kinnier, 4 Exch. 776, where the defendant bound himself in the sum of £1000, as liquidated damages, not to practice as a physician within two miles and a half of a certain place. He did practice a few feet within that distance, measuring by a less frequented road than the usual thoroughfare, though by the latter he was beyond that distance, and there was no evidence that the plaintiff had sustained any damage from his having done so. The jury having, under the direction of the Court, found a verdict of £1000, the Court of Exchequer discharged a rule to reduce the damages to a shilling, and held that the defendant must abide by the contract he had made. But in Kew York, it has been held that, prima facie, the law presumes even limited restraints on trade to be void, and they only will be upheld upon sufficient proof of their reasonableness, both as to consideration and usefulness: Chapel v. Brockway, 21 Wend. 158; Ross v. Sadgbeer, lb. 166. In the latter case, to a declaration on 16 241
It was at one time thought that the Courts would enter into the question of the adequacy of this consideration, and would hold the contract void if the consideration were inadequate. However, *it has been decided in the Exchequer Chamber, after great consideration, that the question of adequacy or inadequacy cannot be entertained, but that the parties must judge of that for themselves (z); a doctrine you may remember my citing as a strong instance of the unwillingness of the courts to enter into the question of the adequacy of consideration at all (a). The reason of this last rule is very succinctly expressed by Alderson, B., in Pilkington v. Scott, above referred to: "Before the decision in Hitchcock v. Coker," he says, "a notion a bond conditioned that the defendant should not manufacture pearl ash for ten years, nor within forty miles of a certain place, a general demurrer was sustained by the Court, on the ground that the consideration imported by the seal did not afford a presumption of such circumstances and reasons as were requisite to uphold such a contract. Prior and subsequent decisions in that State, have not, however, observed such a rule, and an agreement not to practice as a physician within six miles or pay $500 for every month of such practice: Smith v. Smith, 4 Wend. 468; and an agreement not to set up a rival new-paper, or pay $3000: Dakin v. Williams, 17 Wend. 447; Williams v. Dakin, 22 lb. 201, were respectively enforced, and the sums named held to be liquidated damages, and not a penalty.-R.
(2) Hitchcock v. Coker, 6 A. & E. (33 E. C. L. R.) 438; .Archer v. Marsh, lb. 966; Price v. Green, 13 M. & W. 698; per Parke, B.
(a) Ante, p. *176, et seq.
A contract in general restraint of trade is void; but if in partial restraint of trade only, it may be supported, provided the restraint be reasonable, and the contract be founded on consideration: Holmes v. Martin, 10 Ga. 503; Bowser v. Bliss, 7 Blackf. 344; Butler v. Burleson, 16 Vt. 176; Noah 0. Webb, 1 Edw. Ch. 604; Alger v. Thacher, 19 Pick. 51. An agreement between two persons for the manufacture and sale of a certain patented article, which provides for the continuance of the manufacture by one of them, and that the other after a certain time shall abstain therefrom, is not an agreement in restraint of trade: Kinsman v. Parkhurst, 18 How. 289; and see Whitney v. Slayton, 40 Me. 224; Van Marter v. Babcock, 23 Barb. 633; Alcock v. Gib-berton, 5 Duer, 76; Heichew v. Hamilton, 3 Iowa, 596; Beard v. Dennis, 6 Ind. 200; California Steam Co. v. Wright, 6 Cal. 258; Duffy v. Shockey, 11 Ind. 70.-s. 242 prevailed that the consideration must be adequate to the restraint; that was, in truth, the law making the bargain, instead of leaving the parties to make it, and seeing only that it is a reasonable and proper bargain."