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. The case of Chesman v. Nainby, decided in the House of Lords upon writ of error (t), 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; that of Bunn v. Guy (u), where it was, that one attorney in London selling his business to others should not practise as an attorney within London, or 150 miles thereof; and that of Procton v. Sargent (x), 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,-are very important cases, and, together with the great case of Mitchell v. Reynolds, before mentioned, and Mr. Smith's note thereon, should be carefully studied (y).

(t) 2 Str. 739; 3 Bro. P. C. 349.

(u) 4 East, 190; Whittaker v. Howe, 3 Beav. 383; Dendy v. Henderson, 24 L. J. (Ex.)

324; Nicholls v. Stretton, 10 Q. B. 346.

(x) 2 M. & Gr. 20; Benwell v. Inns, 24 L. J. (Ch.) 663.

(y) 1 Smith, L. C., 5th ed.

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 But they must be wantonly imposed than can be necessary for the protection intended.

In Horner v. Graves (2), 100 miles from the place where a dentist carried on business was considered an unreasonable space from which to exclude an assistant and pupil from practising the same profession after his service was determined and his instruction completed. "We do not see," said Tindal, C. J., in delivering the judgment of the Court of Common Pleas, "how a better test can be applied to the question, whether reasonable or not, than by considering whether the restraint is such only as to afford a fair protection to the interests of the party. Whatever restraint is larger than the necessary protection of the party can be of no benefit to either; it can only be oppressive, and, if oppressive, it is in the eye of the law unreasonable. Whatever is injurious to the interests of the public, is void, on the grounds of public policy. In the case often referred to (Mitchell v. Reynolds), Lord Chief Justice Parker says, a restraint to carry on a trade throughout the kingdom must be void;

(2) 7 Bing. 735.

be reasonable.

a restraint to carry it on in a particular place is good; which are rather instances or examples than limits of the application of the rule, which can only be at last what is a reasonable restraint with reference to the particular case. In that case the plaintiff had assigned to the defendant the lease of a house in the parish of A. for five years, and the defendant entered into a bond conditioned that he would not exercise the trade of a baker within that parish during that term; and the restraint was held good, because not unreasonable either as to the time or distance, and not larger than might be necessary for the protection of the plaintiff in his established trade. No certain precise boundary can be laid down within which the restraint would be reasonable and beyond which excessive. In Davis v. Mason (a), where a surgeon had restrained himself not to practise within ten miles of the plaintiff's residence, the restraint was held reasonable. In one of the cases referred to by the plaintiff, 150 miles was considered as not an unreasonable restraint, where an attorney had bought the business of another who had retired from the profession. But it is obvious that the profession of an attorney requires a limit of a much larger range, as so much may be carried on by correspondence, or by agents. And unless the case was such that the restraint was plainly and obviously unnecessary, the Court would not feel justified

(a) 5 T. R. 118.

in interfering. It is to be remembered, however, that contracts in restraint of trade are in themselves, if nothing more appears to show them reasonable, bad in the eye of the law; and upon the bare inspection of this deed, it must strike the mind of every man that a circle round York traced with the distance of one hundred miles incloses a much larger space than can be necessary for the plaintiff's protection." À fortiori, where the plaintiff, a coal merchant in London, had taken the defendant into his service as town traveller and collecting clerk, and the defendant agreed that he would not, within two years after leaving the plaintiff's service, solicit or sell to any customer of the plaintiff, and would not follow or be employed in the business of a coal merchant for nine months after he should have left the employment of the plaintiff, the contract was decided to be void, as a restraint of trade unlimited in point of space (b). "I cannot express," said Parke, B., in this case, "the rule on this subject better than has been done by Tindal, C. J., in giving the judgment of the Court of Exchequer Chamber in Hitchcocke v. Coker (c), where he says, we agree in the general principle adopted by the Court of Queen's Bench, that, where the restraint of a party from carrying on a trade is larger and wider than the protection of the party with whom the contract is made can possibly require, such restraint must be considered as unreasonable in law, and the

(b) Ward v. Byrne, 5 M. & W. 548.

(c) 6 A. & E. 453.

contract that would enforce it must be therefore void. Now a restraint prohibiting a party from carrying on trade within certain limits of space would be good, and a contract entered into for the purpose of enforcing such an agreement as that would be valid; and the limit of the space is that which, according to the trade he carries on, is necessary for the protection of the party with whom the contract is made." The cases upon this branch of the subject are reviewed by the Court of Exchequer in the great case of Mallan v. May, before mentioned; and it may be convenient to the student to subjoin the brief observations made upon them by that Court in giving judgment (d) :

"Applying this rule and referring to the analogous authorities, it appears to us, that, for such a profession as that of a dentist, the limit of London is not too large. In Davis v. Mason (e), Thetford and ten miles round, in Hayward v. Young (ƒ), twenty miles round a place, were held reasonable limits in the case of a surgeon; in that of an attorney, London and one hundred and fifty miles round, in Bunn v. Guy (g); and in Proctor v. Sargent (h), five miles from Northampton Square, in the county of Middlesex, was held reasonable in the case of a milkman. And it makes no difference,

(d) 11 M. & W. 667.

(e) 5 T. R. 118.

(f) 2 Chit. 407; Atkyns v. Kinnier, 4 Ex. 776; Sainter v. Ferguson, 7 C. B. 716.

(g) 4 East, 190.

(h) 2 M. & Gr. 20; Pemberton v. Vaughan 10 Q. B. 87.