Mitchel v Reynolds
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1711 |
| Date | 01 January 1711 |
| Court | High Court of Chancery |
English Reports Citation: 24 E.R. 347
RESOLUTION OF THE COURT OF B. R.
Followed, Master of Gunmakers, &c. v. Fell, 1742, Willes, 388; Davis v. Mason, 1793 5 T. R. 120. Referred to, Gale v. Reed, 1806, 8 East, 85. Followed, Young v. Timmins, 1831, 1 Tyr. 241; Horner v. Graves, 1831. 7 Bing. 741. Referred to, Keppell v. Bailey, 1834, 2 My. & K. 529; Mallan v. May, 1843, 11 M. & W. 665. Followed, Wilkinson v. Wilkinson, 1871, L. R. 12 Eq. 604; 40 L. J. Ch. 242; 24 L. T. 314; 19 W. R. 558. Referred to, Gravely v. Barnard, 1874, L. R. 18 Eq. 523; Collins v. Locke, 1879, 4 App. Cas. 686; Rousillon v. Rousillon, 1880, 14 Ch. D. 364. Examined, Davies v. Davies, 1887, 36 Ch. D. 386, 390, 397. Referred to, Mogul S. S. Co. v. M'Gregor, Gow & Co., 1889, 23 Q. B. D. 627; Clegg v. Hands, 1890, 44 Ch. D. 509, n. Followed, Nordenfelt v. Maxim-Nordenfelt Co., [1894] A. C. 535. See also Smith's L. C. 10th ed. vol. 1, p. 391.
[181] de term. S. hillarii, 1711. B. R.. Case 44.-mitchel versus reynolds. [1711.] [Followed, Master of Gunmakers, &c. v. Fell, 1742, Willes, 388 ; Davis v. Mason, 1793^ 5 T.R. 120. Referred to, Gale v. Reed, 1806, 8 East, 85. Followed, Young v. Timmins, 1831, 1 Tyr. 241; Earner v. Graves, 1831. 7 Bing. 741 Referred to, Keppell v. Bailey, 1834, 2 My. & K. 529; Mallan v. May, 1843, 11 M. & W. 665. Followed, Wilkinson v. Wilkinson, 1871, L. R. 12 Eq. 604; 40 L. J. Ch. 242 ; 24 L. T. 314; 19 W. R. 558. Referred to, Gravely v. Barnard, 1874, L. R. 18 Eq. 523 ; Collins v. Locke, 1879, 4 App. Gas. 686 ; Rousillon v. Rousillon, 1880, 14 Ch. D. 364. Examined, Dames v. Davies, 1887, 36 Ch. D. 386, 390, 397. Referred to, Mogul S.S. Co. v. McGregor, Gow & Co., 1889, 23 Q. B. D. 627 ; Clegg v. Hands, 1890, 44 Ch. D. 509, n. Followed, Nordenfelt v. Maxim-Nordenfelt Vo., [1894] A. C. 535. See also Smith's L. C. 10th ed. vol. 1, p. 391.] 10 Mod. 27, 85, 130 ; Fort. 296. Resolution of the court of B. R. A bond or promise to restrain oneself from trading in a particular place, if made upon a reasonable consideration, is good. (So Davis v. Mason, 5 T. R. 118.) Secus if it be on no reasonable consideration, or to restrain a man from trading at all. Debt upon a bond. The defendant prayed Oyer of the condition, which recited, that whereas the defendant had assigned to the plaintiff a lease of a messuage and bakehouse in Liquorpond Street, in the parish of St. Andrew's Holborn, for the term of five years : now if the defendant should not exercise the trade of a baker within that parish during the said term, or, in case he did, should within three days after proof thereof made, pay to the plaintiff the sum of fifty pounds, then the said obligation to be void. Quibus lectis et auditis, he pleaded, that he was a baker by trade, that he" had served an apprenticeship to it, ratione cujus the said bond was void in law, per quod he did trade, prout ei bene licuit. Whereupon the plaintiff demurred in law. And now, after this matter had been several times argued at the bar, Parker, C. J., delivered the resolution of the court. [182] The general question upon this record is, whether this bond, being made in restraint of trade, be good 1 348 MITOHEL V. REYNOLDS 1 P. WMS. 183. And we are all of opinion, that a special consideration being set forth in the condition, which shews it was reasonable for the parties to enter into it, the same is good ; and that the true distinction of this case is, not between promises and bonds, but between contracts with and without consideration ; and that wherever a sufficient consideration appears to make it a proper and an useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained; but with this constant diversity, vie. where the restraint is general not to exercise a trade throughout the kingdom, and where it is limited to a particular place; for the former of these must be void, being of no benefit to either party, and only oppressive, as shall be shewn by and by. The resolutions of the books upon these contracts seeming to disagree, I will endeavour to state the' law upon this head, and to reconcile the jarring opinions ; in order whereunto, I shall proceed in the following method :- 1st, Give a general view of the cases relating to the restraint of trade. 1 'idly, Make some observations from them. i -H 3dly, Shew the reasons of the differences which are to be found in these cases; and- i -jj ithly, Apply the whole to the case at bar. ' *4 [183] As tothe cases, they are either, first,of involuntarycontracts,against,or without, a man's own consent; or secondly, of voluntary restraints by agreement of the parties. Involuntary restraints may be reduced under these heads :- 1st, Grants or charters from the crown. Idly, Customs.(l) 3dly, By-laws. Grants or charters from the crown may be- 1st, A new charter of incorporation to trade generally, exclusive of all others, and this is void. 8 Co. 121. Idly, A grant to particular persons for the sole exercise of any known trade; and this is void, because it is a monopoly, and against the policy of the common law, and contrary to Magna Charta. 11 Co. 84. Zdly, A grant of the sole use of a new invented art, and this is good, being indulged for the encouragement of ingenuity; but this is tied up by the statute of 21 Jac. 1, cap. 3, sect. 6,(2) to the term t f fourteen years ; for after that time it is presumed to be a known trade, and to have spread itself among the people. Restraints by custom are of three sorts :- 1st, Such as are for the benefit of some particular persons, [184] who are alledged to use a trade for the advantage of a community, which are good. 8 Co. 125 ; Cro. Eliz. 803 ; 1 Leon. 142 ; Mich. 22 H. 6, 14 ; 2 Bulst. 195 ; 1 Roll. Abr. 561. Idly, For the benefit of a community of persons who are not alledged, but supposed to use the trade, in order to exclude foreigners. Dyer, 279 b ; W. Jones, 162 ; 8 Co. 121; 11 Co. 52 ; Carter, 68, 114, held good. Zdly, A custom...
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