CHESMAN ex ux vers NAINBY see MaximNordenfelt company v Nordenfelt Ch ac  Dowden v Pook king b a bind to c condition in consideration of her teach b a  trade that b after leave her shall not either by herself or any other person  for her use carry on the trade or instruct any person to carry it on within  half a mile of b s now dwell house or of any other house she her executor or  administrator shall remove to be good where the breach be assign for instruct  b s husband in that trade within half a mile of a s then house l raym fort bro  par can viner vol p note to can vol p S c error of a judgement in c b in a  action of debt upon a bind enter into by the wife dumb sola the defendant  crave oyer of the condition which be set forth in haec word whereas the  abovenamed Margery Nainby at the special instance and request of the  abovebound Elizabeth vicar be to take her the say Elizabeth vicar for her hire  servant to attend in her shop and to inspect her customer there and to show  her good and further to stand by and assist her the say Margery in her say  trade and business of a linendraper whereby it be presume the say Elizabeth if  she continue any length of time in the say service of the say Margery may  become a perfect and know person in the say trade and mystery and whereas the  say Margery Nainby consent to hire and take the say Elizabeth vicar upon and  in consideration only upon the express promise and agreement of the say  Elizabeth that she the say Elizabeth shall not nor will at any time after she  shall have leave the service of her the say Margery set up or exercise the  trade or mystery of a linendraper either by herself or by any other person or  person in trust for her use either direct or indirect in any shop room or  place within the space of half a mile of the say now dwell house of the say  Margery Nainby situate in drurylane or any other house that she the say  Margery Nainby her executor or administrator shall think proper to remove to  in order to carry on the say trade of a linendraper nor shall she the say  Elizabeth within the same space of half a mile direct or indirect be concern  in or assist or instruct any other person or person in the manage and carry on  the say trade under colour or pretence of be a servant to such persono person  or under any other colour or pretence whatsoever which say express promise and  engagement strange join with the good character and opinion that she the say  Margery have in the integrity and honesty of her the say Elizabeth be the sole  consideration and inducement that have oblige the say Margery to take the say  Elizabeth into her service for the space of three year now the condition of  the above obligation be such that if the say Elizabeth vicar shall act  contrary to and in breach of the above recite promise and agreement accord to  the true intent and meaning thereof or of any part thereof that then and in  such case the say Elizabeth vicar her executor or administrator shall  thereupon pay or cause to be pay unto the say Margery Nainby her executor  administrator or assign the full and just sum of one hundred pound of good and  lawful money of great Britain without fraud or further delay the say sum of  one hundred pound be the consideration money which it be compute the say  Margery Nainby may reasonable expect with a apprentice to the say trade that  then this obligation to be void otherwise to be and remain in full force and  virtue in law who bed they plead that the defendant Elizabeth enter into the  service and continue from the time of the bind to April that the plaintiff  continue to live in drurylane to the bring the action and exercise her trade  there and that the defendant do not set up the trade or instruct any body  within the bind mention in the condition to this the plaintiff reply that the  defendant Elizabeth take the other defendant to husband strange report er p  and do within half a mile of the plaintiff house in drurylane instruct her  husband in the trade upon which they be at issue and it be find for the  plaintiff and on a writ of error in b r the general error be assign strange  pro quer in wandering argue that this be a void bind and consequent the  judgement give upon it for the plaintiff be erroneous and ought to be reverse  I take the law to be so full settle upon this head of contract in restraint of  trade by the case of Mitchel v Reynolds which be in this court hill Ann that I  shall not attempt to dispute the authority of that case or to revive the  distinction which before be give into between a bind and a promise but take  the law to be as it be settle by the several distinction make use of in the  judgement of the court in that case I shall only endeavour to show that the  case at bar be wide different from the case of Mitchel v Reynolds and do not  fall within the reason upon which the bind in that case be support in order to  do this it will be necessary to recite what the condition of the bind be in  that case it recite that the defendant strange have assign to the plaintiff a  lease for five year of a bakehouse in LiquorpondStreet in the parish of saint  Andrew Holborn if therefore the defendant do not exercise the trade of a baker  in that parish during the say five year the bind be to be void and it be  resolve by the court on solemn argument that in all case of restraint of trade  where nothing more appear the law presume it to be bad and that in order to  make it good it must appear to be confine to a particular place and upon a  consideration move from the obligee to the obligor and that all general  restraint be void whether by bind covenant or promise and though with a  consideration and so be also all particular restraint where there be no  consideration and to support this be cite cro Bulst Allen cro Elizabeth so  that take this case for law in order to support this bind it must be show that  it be upon a good consideration and that the restraint be confine to a  particular place but I hope to satisfy your lordship that here do not appear  to be any consideration to induce the obligor to part with his natural liberty  or if there shall be a consideration that yet the restraint be general and  consequent that the bind be void upon that account as to the consideration  your lordship will observe that in the case of Mitchell v Reynolds it appear  there be a actual assignment of the lease before make whereas here the  consideration be in become the bind only say that the plaintiff be to take the  defendant into her service here be nothing whereby the defendant can compel  the plaintiff to do it so that upon the foot of this agreement the defendant  be lie under a restraint though she be never receive into the service of the  plaintiff or gain that instruction in the trade which be to be the  consideration for lie herself under this restraint every consideration be  either execute or executory in carter it be define to be a meritorious cause  require a mutual recompense in fact or in law upon the face of the bind it  appear not to be a consideration execute and that which I can compel the  performance of can never be esteem a executory consideration unless I can  compel the party to perform the act it be as no consideration in the eye of  the law which will never suffer I to part with so valuable a privilege and at  the same time stand to the courtesy of another whether I shall have any thing  for it or not there ought at least to have be a mutual covenant but it will be  object that this want of a consideration execute upon the face of the bind be  cure strange by the plea which show that the defendant do afterward enter into  the service of the plaintiff and continue there for some time I admit the plea  to be so but that be not enough this case must be take as it stand at the time  of execute the bind and be not to be make better or worse by matter ex post  facto your lordship must determine upon the face of the bind whether it be  good in point of law or not and as the defendant can not be receive to aver  against a consideration if it have be recite so neither can the plaintiff be  receive to support her bind by any thing that do not appear in the instrument  itself nay if the plaintiff be to pray in aid of our plea yet upon that it do  not appear the whole consideration be perform for by the condition the  plaintiff be to instruct her for three year and if it be take upon the plea it  appear she be not there so long in Yelv it be hold that where the  consideration be in become a strict performance must be show strange report er  p but whatever shall be your lordship opinion upon this part of the case with  regard to the want of a consideration yet I apprehend the bind will be void  upon another account as be a general restraint the first part of the restraint  be indeed only particular the defendant be particular restrain from set up the  trade within half a mile of the dwell house of the plaintiff in drurylane so  far it may be good but then it be add or any other house that she the say  Margery Nainby her executor or administrator shall think proper to remove to  this make it a general restraint because it put it in the power of the  plaintiff to prevent the defendant from exercise the trade in any part of the  kingdom the reason why particular restraint be allow be because the public be  not concern so long as the party exercise the trade somewhere but if it tend  to prevent the exercise of it any where it be not to be endure because the  public lose the benefit of the party labour and the party himself be render a  useless member of the community I beg leave to put the case that the defendant  in order to comply with this bind shall take a house and settle herself at a  mile distance from the plaintiff and get into business there will it not be  exceed hard that the plaintiff shall have it in her power malicious to deprive  her of this by remove it into her neighbourhood or even by make a person in  that neighbourhood her executor for so the bind be that she shall not exercise  the trade within half a mile of the habitation of the executor or  administrator nay the bind may be forfeit notwithstanding all the caution in  the world on the defendant side for the plaintiff strange may come and live in  that neighbourhood before the defendant have notice or any time to remove  another difference between this case and that of Mitchell v Reynolds be that  that be confine to the set up the trade as a master but the defendant here be  restrain even from get her livelihood as a servant in one the restraint be for  five year only in the other it be indefinite suppose the defendant shall after  leave the plaintiff service be bind out as a apprentice to a linen draper in  the plaintiff neighbourhood as she may against her consent be it reasonable  that the act of the justice which she can prevent shall make her liable to the  penalty of this bind in the case of Mitchell v Reynolds it be urge for one  reason against the allowance of a general restraint that it be to fix a  disadvantage on one side without a benefit to the other for though it may be  for my benefit that one of the same trade shall not come and set up by I yet  it can be of no advantage to one in London to restrain another from exercise  the same trade in York now this restraint be to operate even after it cease to  be any benefit to the plaintiff for the defendant can exercise the trade in  drurylane though the plaintiff shall die or leave it off for the word about  carry on the trade be confine to any other house she shall remove to in order  to carry on the trade but as to the house in drurylane the restraint be to  take place whether the plaintiff use the trade or not or even though she shall  not so much as live in that place I shall add but a word more and that be as  to the replication and verdict the replication be that she instruct her  husband within half a mile of the plaintiff house in drurylane and so be the  verdict but it do not say he carry on the trade within half a mile the man may  live many mile off and yet the wife may talk with he at the plaintiff door  about the trade and that will never be a forfeiture of the bind and yet  notwithstanding the verdict this may be all that be do by the defendant wife  upon the whole therefore I must submit it that here be no consideration appear  upon the face of this bind so as to establish it within the reason of the case  of Mitchell v Reynolds that it be likewise void within the resolution of the  same case as be a general restraint even though there shall be a consideration  and therefore I pray that the judgement give below in favour of this bind may  be reverse strange Whitaker sergeant contra the bind appear to have be take at  the request of the obligor in lieu of l which the plaintiff will otherwise  have have with a apprentice I do not think myself oblige to maintain every  part of the condition of this bind I be afraid if the breach have be assign  upon the elsewhere or upon the clause which speak of executor and  administrator it may be difficult to support strange report er p it but what I  rely upon as a answer in this case be that the condition be good as to that  part whereon the breach be assign this be not a bind which be make void by  statute but if any part of it be void it be so at commonlaw and therefore  accord to the case in hob it be sufficient to maintain the action if the  breach be assign upon that part which be good as to the objection to the  replication we have follow the word of the plea which will therefore be well  enough et per curian here be a plain and a reasonable consideration for so  much of the restraint as the breach extend to which be no more than what be  determine to be good in the case of Mitchel v Reynolds as to there be no  covenant on the part of the plaintiff to instruct her it be reasonable to  suppose there be another distinct bind though if there be not yet the bind be  accept by the plaintiff will be a good evidence of the agreement the  distinction out of hob be certain right the agreement be a very reasonable one  for it be to give her the benefit of the trade whenever she will pay what  shall have be give with her as a apprentice the judgement of c b must be  affirm clerk v comer Cas tempt Hardw Davis v mason term Rep S p February on  error in parliament the judgement be affirm there we take it up upon the  general reason of the law without regard to the case of Mitchel v Reynolds the  twelve judge all attend and be unanimous for affirm