case mitchel versus reynolds follow master of Gunmakers c v fall will Davis v  mason t r refer to gate v reed east follow young v Timmins tyre Horner v grave  bing refer to Keppell v Bailey my king mallan v may m W follow Wilkinson v  Wilkinson l r Eq l I Ch lt W r refer to grave v Barnard l r Eq Collins v lock  App Cas Rousillon v Rousillon Ch d examine Davies v Davies Ch d refer to mogul  S S   v mgregor go   Q b d Clegg v hand Ch d n follow Nordenfelt v  MaximNordenfelt   a c see also smith l c that Edward ol p Mod fort resolution  of the court of b r a bind or promise to restrain oneself from trade in a  particular place if make upon a reasonable consideration be good so Davis v  mason t r by if it be on no reasonable consideration or to restrain a man from  trade at all debt upon a bind the defendant pray oyer of the condition which  recite that whereas the defendant have assign to the plaintiff a lease of a  message and bakehouse in liquorpond street in the parish of saint Andrew  Holborn for the term of five year now if the defendant shall not exercise the  trade of a baker within that parish during the say term or in case he do shall  within three day after proof thereof make pay to the plaintiff the sum of  fifty pound then the say obligation to be void who bed et hearing he plead  that he be a baker by trade that he have serve a apprenticeship to it ration  pron  interrog  the say bind be void in law per quod he do trade prout ei bene  to be for sale whereupon the plaintiff demurrer in law and now after this  matter have be several time argue at the bar Parker c I deliver the resolution  of the court peer William the general question upon this record be whether  this bind be make in restraint of trade be good peer William er p and we be  all of opinion that a special consideration be set forth in the condition  which show it be reasonable for the party to enter into it the same be good  and that the true distinction of this case be not between promise and bind but  between contract with and without consideration and that wherever a sufficient  consideration appear to make it a proper and a useful contract and such as can  be set aside without injury to a fair contractor it ought to be maintain but  with this constant diversity videlicet where the restraint be general not to  exercise a trade throughout the kingdom and where it be limit to a particular  place for the former of these must be void be of no benefit to either party  and only oppressive as shall be show by and by the resolution of the book upon  these contract seem to disagree I will endeavour to state the law upon this  head and to reconcile the jar opinion in order whereunto I shall proceed in  the follow method saint give a general view of the case relate to the  restraint of trade dly make some observation from they dly show the reason of  the difference which be to be find in these case and thly apply the whole to  the case at bar peer William as to the case they be either first of  involuntary contract against or without a man own consent or second of  voluntary restraint by agreement of the party involuntary restraint may be  reduce under these head saint grant or charter from the crown dly custom dly  bylaws grant or charter from the crown may be saint a new charter of  incorporation to trade general exclusive of all other and this be void   dly a  grant to particular person for the sole exercise of any know trade and this be  void because it be a monopoly and against the policy of the commonlaw and  contrary to great Charta two   dly a grant of the sole use of a new invent art  and this be good be indulge for the encouragement of ingenuity but this be tie  up by the statute of James cap sect to the term of fourteen year for after  that time it be presume to be a know trade and to have spread itself among the  people restraint by custom be of three sort saint such as be for the benefit  of some particular person peer William who be allege to use a trade for the  advantage of a community which be good   cro Elizabeth Leon mich h Bulst roll  Abr dly for the benefit of a community of person who be not allege but suppose  to use the trade in order to exclude foreigner dyer b W Jones   two   carter  hold good dly a custom may be good to restrain a trade in a particular place  though none be either suppose or allege to use it as in the case of Rippon  register restraint of trade by bylaws be these several way saint to exclude  foreigner and this be good if only to enforce a precedent custom by a penalty  carter   but where there be no precedent custom such bylaw be void roll Abr  hob Bulst keb but the case in Keble be misreport for there the defendant do  not plead a custom to exclude foreigner but only general to make bylaws which  be the ground of the resolution in that case dly all bylaws make to cramp  trade in general be void more Inst Bulst two dly bylaws make to restrain trade  in order to the better government and regulation of it re good in some case  videlicet if they be for the benefit of the place and to avoid public  inconvenience nuisance c or for the advantage of time trade and improvement of  the commodity side raym peer William keb and   b which last be upon the bylaw  for bring all broadcloth to Blackwell hall there to be view and mark and to  pay a per piece for mark this be penny hold a reasonable bylaw and indeed it  seem to e only a fix of the market for one end of all market be that the  commodity may be view but then they must not make people pay unreasonable for  the liberty of trade there in keb the case be upon a bylaw for restrain  silkthrowsters from use peer William er p more than such a certain number of  spindle and there the bylaw will have be good if the reason give for it have  be true voluntary restraint by agreement of the party be either saint general  or dly particular as to place or person general restraint be all void whether  by bind covenant or promise c with or without consideration and whether it be  of the party own trade or not cro James Bulst Allen particular restraint be  either saint without consideration all which be void by what sort of contract  soever create h more Leon cro Elizabeth Noy Owen keb march show not well  report sand or dly particular restraint be with consideration peer William  where a contract for restraint of trade appear to be make upon a good and  adequate consideration so as to make it a proper and useful contract it be  good Bulst Roger v Parry though that caseis wrong report as appear by the roll  which I have cause to be search it be b r Trin James rot and the resolution of  the judge be not ground upon its be a particular restraint but upon its be a  particular restraint with a consideration and the stress lie on the word as  the case be here though as they stand in the book they do not seem material  Noy W Jones cro James in that case all the reason be clear state and indeed  all the book when careful examine seem to concur in the distinction of  restraint general and restraint particular and with or without consideration  which stand upon very good foundation willing non fit in an unjust manner a  man may upon a valuable consideration by his own consent and for his own  profit give over his trade and part with it to another in a particular place  palm Bragg v Stanner the enter upon the trade and not whether the right of  action accrue by bind promise or covenant be the consideration in that case  vide march Rep but more particular allen where there be a very remarkable case  which lie down this distinction and put it upon the consideration and reason  of the thing second I come now to make some observation that may be useful in  the understanding of these case and they be peer William saint that to obtain  the sole exercise of any know trade throughout England be a complete monopoly  and against the policy of the law dly that when restrain to particular place  or person if lawful and fair obtain the same be not a monopoly dly that since  these restraint may be by custom and custom must have a good foundation  therefore the thing be not absolute and in itself unlawful thly that it be  lawful upon good consideration for a man to part with his trade thly that  since action upon the case be action in an unjust manner it have be always  hold that such action will lie for a man use a trade contrary to custom or his  own agreement for there he use it injurious thly that where the law allow a  restraint of trade it be not unlawful to enforce it with a penalty thly that  no man can contract not to use his trade at all thly that a particular  restraint be not good without just reason and consideration three I propose to  give the reason of the difference which we find in the case and this I will do  saint with respect to involuntary restraint and peer William dly with regard  to such restraint as be voluntary as to involuntary restraint the first reason  why such of these as be create by grant and charter from the crown and bylaws  general be void be draw from the encouragement which the law give to trade and  honest industry and that they be contrary to the liberty of the subject dly  another reason be draw from great Charta which be infringe by these act of  power that statute say nullus libre a human being c disseizetur de book  tenement well freedom well book custom nest c and these word have be always  take to extend to freedom of trade but none of the case of custom bylaws to  enforce these custom and patent peer William er p for the sole use of a new  invent art be within any of these reason for here no man be abridge of his  liberty or seize of his freehold a custom be law loci and foreigner have no  pretence of right in a particular society exempt from the law of that society  and as to new invent art no body can be say to have a right to that which be  not in be before and therefore it be but a reasonable reward to ingenuity and  uncommon industry I shall show the reason of the difference in the case of  voluntary restraint saint negative dly affirmative saint negative the true  reason of the disallowance of peer William these in any case be never draw  from great Charta for a man may voluntary and by his own act put himself out  of the possession of his freehold he may sell if or give it away at his  pleasure dly neither be it a reason against they that they be contrary to the  liberty of the subject for a man may by his own consent for a valuable  consideration part with his liberty as in the case of a covenant not to erect  a mill upon his own land I Jones mich Edward and when any of these be at any  time mention as reason upon the head of voluntary restraint they be to be take  only as general instance of the favour and indulgence of the law to trade and  industry dly it be not a reason against they that they be against law I mean  in a proper sense for in a improper sense they be all the instance of  condition against law in a proper sense be reducible under one of these head  saint either to do something that be malum in see or malum to hold before Inst  dly to omit the do of something that be a duty palm hob Norton v sims dly to  encourage such crime and omission Fitzherb title obligation bro title  obligation dyer such condition as these the law will always and without any  regard to circumstance defeat be concern to remove peer William all temptation  and inducement to those crime and therefore as in I Inst a feoff shall be  absolute for a unlawful condition and a bind void but from hence I will infer  saint that where there may be a way find out to perform the condition without  a breach of the law it shall be good hob cro car Perk dly that all thing  prohibit by law may be restrain by condition and therefore these particular  restraint of trade not be against law in a proper sense as be neither mala in  see nor mala prohibit and the law allow they in some instance as in those of  custom and assumpsits they may be restrain by condition dly affirmative the  true reason of the distinction upon which the judgement in these case of  voluntaryrestraints be find be saint the mischief which may arise from they  saint to the party by the loss of his livelihood and the subsistence of his  family dly to the public by deprive it of a useful member another reason be  the great abuse these voluntary restraint be liable to as for instance from  corporation who be perpetual labour for exclusive advantage in trade and to  reduce it into as few hand as possible as likewise from master who be apt to  give their apprentice much vexation on this account and to use many indirect  practice to procure such bind from they lest they shall prejudice they in  their custom when they come to set up for themselves dly because in a great  many instance they can be of no use to the obligee which hold in all case of  general peer William restraint throughout England for what do it signify to a  tradesman in London what another do at Newcastle and sure it will be  unreasonable to fix a certain loss on one side without any benefit to the  other the Roman law will not enforce such contract by a action see puff lib c  sect h thly the four reason be in favour of these contract and be that there  may happen instance wherein they may be useful and beneficial as to prevent a  town from be overstock with a that particular trade or in case of a old man  who find himself under such circumstance either of body or mind as that he be  likely to be loser by continue his trade in this case it will be better for he  to part with it for a consideration that by sell his custom he may procure to  himself a livelihood which he may probable have lose by trade long peer  William er p thly the law be not so unreasonable as to set aside a man own  agreement for fear of a uncertain injury to he and fix a certain damage upon  another as it must do if contract with a consideration be make void barrow v  wood march Rep mich Edward Allen   but here it may be make a question that  suppose it do not appear whether or no the contract be make upon good  consideration or be mere injurious and oppressive what shall be do in this  case resp I do not see why that shall not be show by plead though certain the  law may be settle either way without prejudice but as it now stand the rule be  that peer William wherever such contract stat indifferently and for ought  appear may be either good or bad the law presume it prima fancy to be bad and  that for these reason saint in favour of trade and honest industry dly for  that there plain appear a mischief but the benefit if any can be only presume  and in that case the presumptive benefit shall be overbear by the apparent  mischief dly for that the mischief as I have show before be not only private  but public thly there be a sort of presumption that it be not of any benefit  to the obligee himself because it be a general mischief to the public every  body be affect thereby for it be to be observe that though it be not show to  be the party trade or livelihood or that he have no estate to subsist on yet  all the book condemn those bind on that reason videlicet as take away the  obligor livelihood which prove that the law presume it and this presumption  answer all the difficulty that be to be find in the book as saint that all  contract where there be a bare restraint of trade and no more must be void but  this take place only where the consideration be not show can be no reason why  in case where the special matter appear so as to make it a reasonable and  useful contract it shall not be good for there the presumption be exclude and  therefore the court of justice will enforce these latter contract but not the  former dly it answer the objection that a bind do not peer William want a  consideration but be a perfect contract without it for the law allow no action  on a naked bargain but every contract must have a consideration either express  as in assumpsits or imply as in bind and covenant but these latter though they  be perfect as to the form yet may be void as to the matter as in a covenant to  stand seize which be void without a consideration though it be a complete and  perfect deed dly it show why a contract not to trade in any part of England  though with consideration be void for there be something more than a  presumption against it because it can never be useful to any man to restrain  another trade in all place though it may be to restrain he from trade in some  unless he intend a monopoly which be a crime thly this show why promise in  restraint of trade have be hold good for in those contract it be always  necessary to show the consideration so that the presumption of injury can not  take place but it must be govern by the special matter show and it also  account not only for all the resolution but even all the expression that be  use in our book in these case it at least excuse the vehemence of judge hall  in h fol quint for suppose as that case seem to be a poor weaver have just  meet with a great loss shall in a fit of passion and concern be exclaim  against his trade and declare that he will not follow it any more c at which  instant some design fellow shall work he up to such a pitch as for a trifle  matter to give a bind not to work at it again and afterward when the necessity  of his family and the cry of his child send he to the loom shall take  advantage of the forfeiture and put the bind in suit I must own I think peer  William this such a piece of villainy as be hard to find a name for and  therefore can but approve of the indignation that judge express though not his  manner of express it sure it be not fit that such unreasonable mischievous  contract shall be countenance much less execute by a court of justice as to  the general indefinite distinction make between bind and promise in this case  it be in plain word this that the agreement itself be good but when it be  reduce into the form of a bind it immediate become void but for what reason  see lev now a bind man be consider two way either as a security or as a  compensation and peer William er p saint why shall it be void as a security  can a man be bind too fast from do a injury which I have prove the u sing of a  trade contrary to custom or promise to be dly why shall it be void as a  compensation be there any reason why party of full age and capable of contract  may not settle the quantum of damage for such a injury bract lib c it will be  very strange that the law of England that delight so much in certainty shall  make a contract void when reduce to certainty which be good when lose and  uncertain the case in march Rep and also show be but indifferent report and  not warrant by the authority they build upon saint object in a bind the whole  penalty be to be recover but in assumpsit only the damage peer William resp  this objection hold equal against all bind whatsoever d objection another  objection be that this be like the case of a infant who may make a promise but  not a bind or that of a sheriff who can take a bind for fee resp the case of a  infant stand on another reason videlicet a general disability to make a deed  but here both party be capable neither be it the nature of the bind but mere  the incapacity of the infant which make a bind by he void since there a surety  will be liable but it be otherwise here also the case of a sheriff be very  different for at commonlaw he can take nothing for do his duty but the statute  have give he certain fee but he can neither take more nor a chance for more  than that allow he d object it be further object that a promise be good and a  bind void because the former leaves the matter more at large to be try by a  jury but what be there to be try by a jury in this case resp saint it be to be  try whether upon consideration of the circumstance the contract be good or not  and that be matter of law not fit for a jury to determine dly it be to  ascertain the damage but who good say they shall that be do be it for the  benefit of the obligor resp certain it may be necessary on that account for  these reason peer William saint a bind be a more favourable contract for he  than a promise for the penalty be a repurchase of his trade ascertain before  hand and on payment thereof he shall have it again he may rather choose to be  bind not to do it under a penalty than not to do it at all dly however it be  it be mrs own act dly he can suffer only by his knavery and sure court of  justice be not concern lest a man shall pay too dear for be a knave thly  restraint by custom may as I have prove be enforce with penalty which be  impose without the party consent may by the injure party without the  concurrence of the other and if so then a strong he may bind himself by a  penalty object it may perhaps be object that a false recital of a  consideration in the condition may subject a man to a inconvenience which the  law so much labour to prevent resp but this be no more to be presume than  false testimony and in such a case I shall think the defendant may aver  against it for though the rule be that a man be estopped from aver against  anything in his own deed yet that be suppose it to be his feed for where it be  void it be otherwise as in the case of a usurious contract the application of  this to the case at bar be very plain here the particular circumstance and  consideration be set forth upon which the court be to judge whether it be a  reasonable and useful contract peer William the plaintiff take a baker house  and the question be whether he or the defendant shall have the trade in this  neighbourhood the concern of the public be equal on both side what make this  the more reasonable be that the restraint be exact proportion to the  consideration videlicet the term of five year to conclude in all restraint of  trade where nothing more appear the law presume they bad but if the  circumstance be set forth that presumption be exclude and the court be to  judge of those circumstance and determine accord and if upon they it appear to  be a just and honest contract it ought to be maintain for these reason we be  of opinion that the plaintiff ought to have judgement peer William er p see  mayor of Winton v Wilks salk salk and ld ray S c as to copyright see saint  whether c g c g c g c g c and see Evans saint as to property in print see g c  g c g c in model g c g c and in pattern g c and g c wolley v idle burr Bodwic  v fennel will vide Harrison v Godman burr hesketh v Braddock burr adley v beef  m S king v Cooper company t r king v Tappenden east Wannell v Chamber of the  city of London stram the king v Harrison burr pierce v Bartrum Cowp Eagleton v  e company Bos pull king v Faversham t r and see adley v Whitstable company Ves  the instance there mention be that if any shall agree not to wash their land  or change their linen for such a time there can be no need to trouble a  magistrate on the breach of such agreement which will tend to no consequence  when put in execution hall express himself thus a man intent vous purres aver  demurrer sur ill and Le obligation be void eastern and Le condition be  encounter common lie et per dieu si Le plaintiff to be icy ill irra all prison  tanq ill burn fait fine au roy say vide hardy v Martin bro c c note S c Cox  Collins v Blantern will the business of a attorney arise from the confidence  which other repose in his personal skill and integrity it seem doubtful  whether a court of equity will decree specific performance of a contract for  sale of it Bozon v Farlow mere though it have be determine that a agreement by  a attorney to relinquish his business and recommend his client to another and  not to practice himself within certain limit be valid in law Bunn v guy east  so Chesman v Nainby stram and bro p c S c and Edward bro PC and see gale v  reed east barrett v Blagrave Ves Ves shackle v baker Ves cruttwell v lie Ves  Kennedy v lee mere Harrison v gardener mad Baxter v Conolly James W William v  William swan Bryson v Whitehead si stuff peer William de term paschae