case mitchell against reynolds see S c p wms e r with note a bind condition  that the obligor shall not exercise his trade within a particular parish be  good S c ante S c fort S c Peer wms the resolution of the court be deliver by  Parker chief justice to the follow effect a action of debt be bring upon a  bind thus condition that whereas a have take the shop of b who be a baker for  the term of so many year and have give b so much money for it the condition of  the obligation be such that if during the term aforesaid b shall not exercise  the trade of a baker within the parish where the shop be that then the bind  shall be void otherwise remain in full force c and whether this be a good or a  void bind be the question we be all of opinion that the bind be good and that  the true distinction be not between a bind and a promise that a bind shall be  void and promise good but between contract whether by bind covenant or promise  enter into upon a just fair and reasonable consideration and those enter into  upon no consideration or a vicious one whether it be by bind covenant or  promise that the former will be good the latter void modern report case of  restraint of trade be either involuntary or voluntary involuntary be of three  sort first by grant or charter second custom three bylaw first by a new  charter grant a   a the grant of the sole use of a trade be void b   b but a  grant of a trade newlyinvented and for a time be good c godb c for the public  have a advantage in the invention of a useful trade which after a limit time  be to be public and the inventor industry be sufficient encourage by the sole  use of it secure to he by charter for such a time but a second grant will be  void even in this case and the statute James c limit the time for which such  grant may be make to fourteen year second by custom and this be either first  for the advantage of some particular person that have stock enough to serve  the place d Bulst roll d or second for the advantage of the corporation or  community of a certain place e dyer Jones carter e or three where person not  suppose to use the trade have yet a prerogative that nobody shall use such a  trade within such a compass without licence from they first obtain and this be  ration rule f see the case of the archbishop of York Reg f three by bylaw  bylaw to exclude foreigner where there be no custom to justify they be void g  carter g but if in affirmance of a custom they be good h roll h bylaw to cramp  and lie difficulty upon trade be void I more Bulst and statute car c I but  bylaw to regulate trade be good whether the be for the advantage of the town  king side raym king or of trade l   keb l modern report er p now I come to  voluntary restraint and here first all contract for restraint of trade over  all England be void whether by bind covenant or promise whether modern report  of that trade a man be bring up to or any other trade be afterward fall into m  cro Elizabeth cro James Allen m second contract to restrain trade in a  particular place be void if not do upon a fair just and good consideration n  see the yearbook Henry pl and the main point to this case more n three where  the contract for the restraint of trade in a particular place appear to have  be make upon a fair and just consideration the contract be good be it by bind  covenant or promise a Roger v Parry Bulst the case be there not well state but  may be find James roll a in joliffe v broad b cro James Jones b a remarkable  case the plaintiff and defendant be mercer live near to one another the  defendant desire the plaintiff to buy his old good which the plaintiff do at  such a price upon consideration that the defendant will not exercise his trade  within such a place in this case it be first observe that it be a voluntary  restraint and the rule be willing non sit in an unjust manner second that it  be make upon a valuable consideration the use of his trade be compensate to  the defendant by the price give he for his old good three that the agreement  be neither malum in see nor malum to hold before fourthly a man may bind  himself not to live in such a place and by consequence not to trade there and  five these kind of bind be very frequent in London in this case the material  difference I first lie down be establish and the judgement in this case as  appear be affirm upon error in the exchequer Chamber c cro James c the case of  Prugnel v gross d Allen palm march d be a remarkable case and the stress be  lie upon the consideration not whether it be by bind covenant or promise the  case of Thompson v Hervey e show S c comb e though but a imperfect report be  of a restraint from buy of a particular person and the same difference take f  sand f modern report shall now make a few useful observation first that a  restraint to obtain the sole use of trade through all England be void for it  be a monopoly second that a restraint from use one trade in a particular place  if do fair and upon a good and lawful consideration and with no intention be  good three that this be not in itself unlawful or unreasonable for then custom  can not make it good all unjust and unreasonable custom be void fourthly that  since it be agree on all hand that a action upon the case will have lie which  conclude ad damnum and there can be no damnum without in an unjust manner it  follow that the law reckon the breach of such a contract a unjust and  injurious action five that it be not unreasonable to enforce bylaw with a  penalty since no bylaw which be either unjust or unreasonable can ever be good  six the restraint of it must be upon good consideration and the breach of it  must apparent tend to the damage of the other for else the restraint be void  though for a particular place I shall now give my reason why of involuntary  and voluntary restraint some be void and other good first for involuntary  restraint grant charter c erect monopoly be void for two reason first because  they be against the freedom and birthright of the subject second because they  be contrary to great Charta but it be otherwise where the grant or charter be  to enforce a custom for if the custom be good the charter enforce it must be  so too or where the grant or charter be make for the good regulation and  government of trade for the public good be ever to be prefer to a private loss  next in give the reason of voluntary restraint I shall proceed first negative  modern report er p and show what be not the modern report true reason and  second positive and point out the true one first that they be against great  Charta be no good reason because great Charta provide against force and power  not voluntary act of man second that they be against the liberty of the  subject be no good reason for what a man part with be no long his own if I  sell my liberty to trade it be no long I but his to who I sell it three it be  not a good reason that the condition be against law in a proper sense for  every thing that be against law in a proper sense must be either first malum a    light Perkins carter keb a or second omit or neglect what be a man duty b  palm Fitzherbert b or last encourage the commission of a evil action c brook  Abr condition yearbook Henry hob c I say condition against law in a proper  sense must fall under one of these head and this last head explain the reason  of the difference take Inst between a feoff and a bind that a feoff to a man  upon condition he will kill b shall be good but a bind with such a condition  shall be void for in the one case lest the man shall have any temptation to do  the act the law secure to he the possession of the land without perform the  condition and in the other free he from the penalty of the bind so that the  law have the same end in view in make the feoff good and the bind void  videlicet the prevention of the fact wherever there can be a way find out to  perform the condition without breach of the law the bind shall be esteem good  d Perk   hob Norton v sims cro Elizabeth d all thing that may be prohibit by  law may be so too by the condition of a bind e yearbook Henry e modern report  the condition of the bind before we be neither malum in see nor malum prohibit  for then neither custom nor covenant can make it good I come now to show  affirmative what be the true reason why of contract in restraint of trade some  be void and other good first because it be deprive the party of a mean of a  livelihood second because of the great abuse such bind be liable to as the  enable corporation to exclude foreigner which they have no right to do and  master to lie hardship upon their servant apprentice c three because it be a  condition of no use to the other party puffendorf a puff de jure nature lib  cap S a make all useless agreement as a agreement not to wash one hand c void  who good be ever of great weight in all agreement b yearbook Henry fol b  fourthly there may be several case where agreement for restraint of trade in  particular place may be of advantage to some and no disadvantage to the rest  and there they be good as for example where a town be overstock with person of  the same trade or in the case before cite of joliffe v broad where a man grow  old and unable to carry on his trade without blunder and have a good accustom  shop quid financial loss in such a agreement as be there enter into to either  but a apparent advantage to both five those contract in restraint of trade be  void where the performance be attend with a immediate and apparent damage to  the one side only to free the other from the fear of a distant damage that may  or may not happen c case of tailor of Ipswich c in the case of barrow v wood d  march d it be say than a agreement not to sow one land be void but the case in  the yearbook e mich Edward e upon which this assertion be find warrant no such  general position f Allen f modern report six suppose it do not appear in the  condition of the bind whether it be upon a fair and just consideration or not  be these bind prima fancy to be esteem void or shall they be esteem good until  the party for who advantage it be show in evidence the illegality of the  consideration upon which they be find modern report er p I answer first as to  equity the law may be settle either way provide it be know but second as the  law now stand they be prima fancy void and for these reason first on account  of the benignity of the commonlaw and the tender regard it have for the  liberty and right of the subject second for the apparent mischief to one side  and no visible advantage of the other side to counterbalance it which mischief  in the first place be not bare a private one but have a influence upon the  public that be interest in a man trade and in the second place there be not  only a visible prejudice of the one side and no apparent advantage of the  other but a great probability that there be none since to its be a advantage  to a man to leave his trade so many special circumstance be necessary as be  never to be presume where they do not appear from here constat first that all  bind for restraint of trade and no reason give be prima fancy void second  where the condition of the bind assign a just and fair reason the bind be good  until that reason can be falsify three from hence it appear why a bind for  restraint of trade all over England be the consideration what it will be void  because without doubt some place or other may be find where the party enter  into such a bind may use his trade without any prejudice to the obligee unless  the obligee intend by this bind to make a monopoly of the trade which reason  be better let alone than give fourthly by this the difference take in some of  our old book between bind and covenant or promise may be very well account for  videlicet because upon a bind modern report there be no necessity for the  reason and nature of the contract to appear whereas in promise or covenant the  whole nature and all the circumstance of the contract must appear to the jury  before they can determine the damage they be to give for the breach of the  covenant five this not only account for the judgement give but also the  expression use in those case as in the yearbook of Henry the five a Henry pl a  the consideration of the bind not appear and therefore be to be presume a  oppressive bind the indignation of the judge though not the way of express it  swear may be excuse perhaps it be such a case as this a weaver force by the  necessity of his circumstance to sell to his loss another take he thus  chagrine to the tavern where for a trifle he extort such a bind from he and  when the cry and tear of his halfstarved wife and child call he again to the  loom this bind be put in suit against he this be a crime I be at a loss to  find a name for if accord to puffendorf by the law of nature useless contract  be void how much more oppressive one and now I come to consider the case of  clerk v tailor of Exeter b lev b wherein it be say that such a contract by  bind be void by promise good and here first upon the face of it this appear  very harsh doctrine for a bind may be consider in a twofold respect first as a  security for not break this contract and can a man be bind too fast not to  break his word second the penalty may be consider as a compensation for the  breach of the agreement as a price of repurchasing the liberty restrain by the  bind and this settle by person of full age that be both most capable of it and  have likewise the best right to do it as a man may to go from his jure so he  may do it upon what term he think fit a man may say I will not absolute  exclude myself from do such a thing but I will modern report bind myself in a  bind of such a penalty not to do it that so if I think fit to forfeit the  penalty I may be at my liberty a see Bracton bk cap a and certain it will be  very strange that the law of England that delight so much in certainty shall  make a bind void only because the damage be there ascertain by the party  themselves who be the proper person to do it and make a covenant or promise  good only because the damage must there be reduce to certainty by a jury  second as this be very harsh doctrine so it be a opinion not at all necessary  for the judgement give in that case which stand unimpeached upon the ground I  have all along go upon in this case so that it be only the reporter opinion  find upon march a very indifferent reporter and the reason give for the modern  report er p difference videlicet that in a bind the whole penalty be forfeit  whereas in a contract it be to be recover in damage to be assess by a jury be  a reason that hold as well against all bind in general as this there can be  but two reason for leave it to a jury either that the jury may see whether it  be a lawful contract or not which be proper for the consideration of the court  not the jury or else because not know quod damnum but this be no reason here  because the damnum be fix by the consent of the party let it be further  consider that the party can suffer nothing but by be a knave and shall a court  of justice assist a man to play the knave freedom to trade be as much bind by  consent as custom and the case of penalty make for the enforcement of such a  custom seem to I a strong case for there the party be as it be judge in his  own case whereas here the penalty be fix by consent of both side such a  agreement in take all apprentice be good and may be consider not as a  prejudicial or restrain agreement but as a favourable and advantageous one as  put a apprentice in a capacity of get his live in any part of England but  where it will be to modern report the prejudice of his master when without it  he call gain it no where this case have be compare to that of a infant who a  contract for necessary will bind but not a bind but this be nothing to the  purpose for it stand clear upon the incapacity of the infant to make any  contract at all but such as shall be for his advantage and it can never be for  his advantage to enter into a penalty that this be so be plain from hence that  if a infant and a surety enter into a bind for necessary for the infant the  bind be good as to the surety though not the infant so that it be not the  nature of the bind but incapacity of the infant that make the bind void this  case have also be compare to bind take by sheriff for their fee which be void  but here first the sheriff by the commonlaw be to take no fee at all for do  his office and therefore as these fee be give by Act of parliament the Act  must be strict pursue but second and principal those bind be void from the  apparent probability that they will make use of they to support their  oppression there be but one objection that seem to have any colour in it  videlicet that false recital of consideration will make those bind good that  ought to be void but first this be to be fear no more than false testimony  second this special matter may be give in evidence to conclude the bind in the  case before we be good and enter into upon a just and fair consideration for  the restraint be exact proportion to the consideration videlicet the term of  seven year only and the interest of the public be not at all concern a see  Davis v mason term Rep a