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must be of the person (11) of the defendant or his wife¤; one, who is a surety only, cannot plead that the bond was obtained by duress of the principal h, where the bond is joint and several. To the plea of duress the plaintiff may reply that the defendant was at large at the time of the execution, and that he sealed and delivered the bond voluntarily, and not by duress of imprisonment.
4. Illegal Consideration,
1. By the Common Law-Immoral-In Restraint of Trade, &c.
2. By Statute-Gaming-Sale of OfficeSimony-Usury.
1. By the Common Law-Immoral.-A bond may be avoided, if it has been made upon an immoral consideration; as where the condition of the bond was, that the obligee and obligor should live together in a state of fornication. But a bond given by a single man m, or a married man", in consideration of past cohabitation with an unmarried woman, is good; because it shall be intended as a compensation for the wrong done (12).
In Restraint of Trade.-With respect to bonds made in restraint of trade, it may be observed, that wherever a sufficient consideration appears to make it a proper and useful contract, and such as cannot be set aside without injury to a fair contractor, it ought to be maintained, provided the restraint is limited to a particular place; but, if the restraint is
g Bro. Abr. Duress, pl. 18.
h Huscombe v. Standing, 1 Cro. Jac. 187. Adjudged on demurrer.
i 1 Roll. Abr. 687. pl. 6. k Cl. Ass. 77.
1 Walker v. Perkins, 3 Burr. 1568. 1 Bl. Rep. 517. S. C.
m Turner v. Vaughan, 2 Wils. 339. n Nye v. Moseley, 6 B. and C. 133.
(11) In 1 R. Abr. 687. pl. 3. it is said, that if a person executcs a deed by duress of his goods, he may avoid the deed; and 20 Ass. pl. 14. is cited, where a release made by an abbot, by duress, of his cattle, was holden void. But in Sumner and Feryman, Hil. 1708. cited in 2 Str. 917. it is said to have been holden, that a bond could not be avoided by duress of goods. See also Bro. Abr. Duress, pl. 16. S. P.
(12) See Marchioness of Annandale v. Harris, 2 P. Wms. 432.— Priest v. Parrot, 2 Vez. 160. and Gray v. Mathias, 5 Ves. Jun. 286.
general, that is, not to exercise a trade throughout the kingdom, the bond is void (13). In debt upon bond, the defendant prayed oyer of the condition, which recited, that the defendant had assigned to the plaintiff a lease of a messuage and bakehouse in Liquorpond Street, in the parish of St. Andrew, Holborn, for the term of five years; and provided, that 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 501., then the bond should be void. The defendant then pleaded, that he was a baker by trade, that he had served an apprenticeship to it, by reason whereof the bond was void; wherefore he traded, as it was lawful for him to do. On demurrer, the court adjudged the bond to be good, on the ground, that from the particular circumstances and consideration set forth, the contract appeared to be lawful and useful, and that the restraint was a particular restraint, founded on a valuable consideration. See also the case of Chesman v. Nainby, 2 Str. 739. 3 Bro. P. C. 349. in which the Courts of Common Pleas, King's Bench, and House of Lords, successively recognized the same principle, viz. that contracts entered into between two persons, to restrain one of them from setting up or exercising a particular trade or employment within a certain limited district and for a valuable consideration, were valid in law.
o Mitchel v. Reynolds, 1 P. Wms. 181. cited in Homer v. Ashford, 3 Bing. 328.
(13) "The general rule is, that all restraints of trade (which the law so much favours,) if nothing more appear, are bad. This is the rule which is laid down in the famous case of Mitchel v. Reynolds, (which is well reported in 1 P. Wms. 181.; in which Lord Macclesfield took such great pains, and in which all the cases and arguments in relation to this matter are thoroughly weighed and considered.)— But to this general rule there are some exceptions; as first, that if the restraint be only particular in respect to the time or place, and there be a good consideration given to the person restrained, a contract or agreement upon such consideration so restraining a particular person, may be good and valid in law, notwithstanding the general rule, and this was the very case of Mitchel v. Reynolds.' Willes, C. J. in the Master, &c. of Gunmakers v. Fell, Willes, 388. See further on this subject Gale v. Reed, 8 East, 86. By common law, any person may carry on any trade in any place, unless there be a custom to the contrary, and if there be such a custom, then a by-law in restraint of trade warranted by such custom will be good; but if there be no such custom, a by-law in restraint of trade will be bad." Per Bayley, J. in Clark v. Le Cren, 9 B. and C. 58.
As to the limits within which a person may restrain himself from exercising his trade, it is impossible to lay down any rule for ascertaining in what cases such limits are reasonable and what not. In Chesman v. Nainby, the distance within which the obligor agreed not to exercise the same trade with the obligee, was half a mile only from the place. where the obligee resided. In Clerk v. Comer, Cas. Temp. Hardw. 53. and 7 Mod. 230. 8vo. edit. S. C. by the name of Colmer v. Clark, the condition was, not to carry on trade within the city of Westminster, or bills of mortality, and the bond was holden to be good. And in a more recent case of Davis v. Mason, 5 T. R. 118. where the defendant had bound himself not to practise as a surgeon within ten miles of the plaintiff's residence, the court did not think the limits unreasonable, and on the authority of Mitchell v. Reynolds, the bond, being founded on a valuable consideration, was adjudged good (14). In Leigh v. Hind, 9 B. and C. 774. where the assignor of the lease of a public house in London, had covenanted that he would not keep a public house within the distance of half a mile from the premises assigned; it was holden, that the true principle of admeasurement was, to take the nearest mode of access.
It is impossible to enumerate every species of illegality for which a bond may be avoided: but, before I close this head, I cannot forbear to mention one case relative to it, which underwent a long and serious discussion. The case alluded to is that of Collins v. Blantern, reported in 2 Wils. 347. It was an action of debt on bond, dated the 6th of April, 1765, in which defendant was jointly and severally bound with A. and B. in the penal sum of 7007. conditioned for the payment by A. and B. and the defendant, of the sum of 3507. on the 6th of May following. The defendant, having prayed oyer of the bond and condition, pleaded that two of the obligors, A. and B. and three other persons, stood indicted by John Rudge, on five several indictments, for wilful and corrupt perjury, and had severally pleaded not guilty; that the several tra
p Cited in 5 East, 298.
(14) In Bunn v. Guy, 4 East, 190. an agreement entered into by a practising attorney in London, to relinquish his business and recommend his clients to two other attornies, and that he would not himself practise in such business within London and 150 miles from thence; and that he would permit them to make use of his name in their firm for one year; was holden to be a valid agreement.
verses on the indictment were coming on to be tried at the assizes in Stafford, whereupon it was unlawfully and corruptly agreed, between Rudge the prosecutor, the plaintiff, and the five persons indicted, that the plaintiff should give Rudge his notes for 350l., payable one month after date, for not appearing to give evidence at the trial, and the obligors should execute a bond to the plaintiff, of the same date with the note, as an indemnity to the plaintiff for giving such note. The plea then stated the carrying this agreement into effect, on the 6th of April, 1765, and concluded with an averment, that the bond was given for the said consideration, and no other, and that the obligors were not indebted to the plaintiff in any sum of money, and therefore the bond was void in law. On demurrer, the court gave judgment for the defendant on these grounds: 1st, That the whole transaction was to be considered as one entire agreement; for the bond and note were both dated upon the same day, for payment of the same sum of money on the same day; that it was an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth: that the promissory note was certainly void, and consequently the plaintiff was not entitled to recover upon the bond which was given to indemnify him from such note: they were both bad, the consideration for giving them being wicked and unlawful. 2ndly, That the bond was void, because it was given for the purpose of tempting a man to transgress the law. 3dly, That the special matter might be pleaded, although it was objected, that the law would not endure a fact in pais dehors a specialty to be averred against it, and that a deed could not be defeated by any thing less than a deed; for the condition, in this case, was for the payment of a sum of money; but, that payment to be made, was grounded upon a vicious consideration, which was not inconsistent with the condition (15), but struck at the contract itself, in such a manner as shewed that
q S. P. admitted per Cur. in Cuthbert v. Haley, 8 T. R. 390.
(15) "The general rule, that matters dehors the deed cannot be pleaded, does not apply to this case; the true meaning of that rule is, that matter inconsistent with or contrary to the deed, cannot be alleged*, but matter consistent with the deed may; the bond in the present case is for the payment of money: the plea admits this, and the averment alleges upon what consideration that money was to be paid, and therefore is not inconsistent with or contradictory to, the condition of the bond; this rule of pleading applied to the cases of
* Buckler v. Millerd, 2 Ventr. 107. Mease v. Mease, Cowp. 47.
the bond never had any legal entity, and if it never had any being at all, then the maxim, that a deed must be defeated by a deed of equal strength, did not apply to this case. The averment pleaded in this case was not contradictory to, but explanatory of, the condition: as to the argument, that if there was not any consideration for the bond it was a gift; that was to be repelled by shewing it was given upon a bad consideration: this destroyed the presumption of donation. 4thly, That the plea was properly concluded, "and so the said bond is void," or at least this conclusion was well enough upon general demurrer.
In debt on bond, conditioned for the payment of a sum of money in case the defendant did not procure I. S. then impressed, to appear and deliver himself to the plaintiff when called upon the defendant pleaded that I. S. having been unlawfully impressed, the plaintiff was unwilling to discharge him, unless he would agree to pay a certain sum of money, and would procure the defendant to become bound, and thereupon it was unlawfully agreed, that the plaintiff should discharge I. S. on the defendant becoming bound for that sum, and, therefore, the bond was void. To this plea there was a general demurrer, which was endeavoured to be supported, on the ground that the defendant could not aver matter inconsistent with the condition of the bond; that it appeared by the condition, that the party was impressed, which meant legally ex vi termini. But the court overruled the demurrer, and held the plea to be good. So where the condition of the bond stated, that the defendants had taken up, borrowed, and received of the plaintiffs a sum of money, which was to run at respondentia interests, on the security of certain goods shipped from Calcutta to Ostend. The defendants pleaded, that the bond was given to cover the price of goods sold by the plaintiffs to the defendants, for the purpose of an illegal traffic from the East Indies, and that the plaintiffs knowingly assisted in preparing the goods for carriage upon such illegal voyage. On demurrer to this plea, it was urged, in r Pole v. Harrobin, E. 22 G. 3. B. R. s Paxton v. Popham, 9 East, 408. 9 East, 416. n.
simony, duress, coverture, infancy, &c." Argument for defendant, S. C. 2 Wils. 347. "Since the case of Pole v. Harrobin, E. 22 G. 3. B. R. it has been generally understood, that an obligor is not restrained from pleading any matter which shews that the bond was given upon an illegal consideration, whether consistent or not with the condition of the bond." Per Lord Ellenborough, C. J. in Paxton v. Popham, 9 East, 421, 2.