free from the objection urged against it. The terms
are," in consideration that Sainter will (thereafter)
engage me, Ferguson, as assistant to him as a surgeon
and apothecary, I promise him that I will not at any
time practise, in my own name, or in the name or names
of
any other
person or persons, as surgeon or apothecary
at Macclesfield or within seven miles thereof, under a
penalty of 5001. And I, Sainter, do hereby agree with
Ferguson to engage him as an assistant to me as a
surgeon and apothecary, on the terms aforesaid." If the
plaintiff did not engage the defendant, the latter was
not restrained; if he did, then he was restrained. The
declaration avers that the plaintiff did engage the de-
fendant, that is, did contract with him to employ him
as his assistant. The cases cited as to forbearance of
a debt, proceeded upon the footing that there was no
agreement. Here, there was a contract, founded upon
some consideration: its adequacy is not in question:
Hitchcock v. Coker. It would be singular, indeed, if
such an inquiry could be entered into. The question,
then, is, was it reasonable that the defendant should be
restrained? As between the parties, it was undoubtedly
reasonable that they should be mutually bound by their
contract. Then, is it reasonable as far as the public is
concerned? It has been held, in many cases, that a con-
tract restraining a party from carrying on a particular
business, at a given place, or within a given district, is
valid. In Ward v. Byrne (a), Parke, B., says:
restraint prohibiting a party from carrying on trade
within certain limits of space would be good, and a con-
tract 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

"A

1849.

SAINTER

V.

FERGUSON.

1849.

SAINTER

v.

FERGUSON.

In

whom the contract is made." In the case of a cowkeeper, a limit of five miles from a certain spot was held not unreasonable: Proctor v. Sargent. (a) Mallan v. May (b), a stipulation that the defendant should not practise as a dentist in London, was held not an unreasonable restraint. So, here, I think the prohibition to practise in Macclesfield, or within seven miles thereof, is not, with reference to the public at large, an unreasonable protection to the plaintiff.

With respect to the damages, I concur in what has fallen from the lord chief justice and my brother Coltman. If there be only one event upon which the money was to become payable, and there is no adequate means of ascertaining the precise damage that may result to the plaintiff from a breach of the contract, it is perfectly competent to the parties to fix a given amount of compensation, in order to avoid the difficulty.

V. WILLIAMS, J. I am of the same opinion. It seems clear that the contract is not confined to a restraint durante servitio. And I think there was a sufficient legal consideration. Since the case of Hitchcock v. Coker, it has been uniformly held that the court will not inquire into the extent or the adequacy of the consideration for a contract of this sort. Primâ facie, all restraints of trade are bad. But, if the restraint is such as not to be unreasonable as between the parties, or injurious to the public, the rule does not apply. In cases like this, the restraint has been regarded rather as a necessary security for the employer, provided it be not larger than his protection reasonably requires.

As to the last point, I agree with the rest of the court, that it is competent to the parties by mutual

(a) 2 M. & G. 31., 2 Scott, (b) 11 M. & W. 653.

N. R. 289.

agreement to settle the amount of damages that are in their nature uncertain and difficult of estimation, where they depend upon the failure to perform a single act.

Rule refused.

1849.

SAINTER

V.

FERGUSON.

a

FRANCIS, a Pauper, v. WEBB. ASSUMPSIT, for a balance of 1721., due upon building contract, and for work and labour. Pending the cause (a), the plaintiff obtained leave to prosecute the action in formâ pauperis. Subsequently, the parties agreed to refer the matters in difference to two surveyors. The arbitrators allowed the time for making their award to elapse, and no leave was obtained

April 16.

The court will not interfere, even in the case of a plaintiff suing in formâ pauperis, to prevent effect being given

to a settle

evident that although it be

costs,

will lose his unless the settlement

be clearly collusive.

to enlarge it. On the 1st of January, 1849, the plain- ment between tiff's attorney gave the defendant's attorney notice of the parties,trial for the first sitting in the next term. On the 3rd, the defendant, as he swore, "in consequence of the the attorney plaintiff's prosecuting the action in formâ pauperis, and being well assured that he was not indebted to the plaintiff, but in order to save the heavy expenses attendant on the further prosecution of the reference, entered into a negotiation with the plaintiff to pay him 1007.," which sum he paid to the plaintiff on the following day, taking from him a receipt in full of all demands. On the 4th, the plaintiff's attorney gave a notice to the defendant and also to his attorney, as follows: "I hereby give you notice, that I have a lien on the debt in this action, for costs; and you are hereby required not to settle or

(a) As to leave to proceed in formâ pauperis obtained pendente lite, see Bland v. Lamb, 2 Jac. & W. 402. ; Brunt v. Wardle, 3 M. & G.

Dowl. N. S. 229.; Doe d. Ellis
v. Owens, 9 M. & W. 455., 1
Dowl. N. S. 404.; Hall v. Ive,
7 M. & G. 1001., 8 Scott, N.
R. 715., 2 D. & L. 610.

1849.

FRANCIS

v.

WEBB.

compromise this action with the plaintiff, without my written consent. And I further give you notice, that, if you do so compromise this action in any way with the plaintiff, or any other person than myself in this behalf, until my lien aforesaid has been first paid, I shall hold you liable to pay over again the amount thereof to me." On the 9th, the defendant's attorney gave the plaintiffs notice that the action had been settled, and required him to withdraw the notice of trial. On the 12th, a notice to produce and to inspect and admit certain documents in the cause, was served upon the defendant's attorney. And on the 19th, a judge's order was obtained by the plaintiff's attorney, making the cause a remanet to the second sitting. On the 20th, an order was made by Coltman, J., to produce certain documents in the custody or power of the defendant, to be stamped, the plaintiff's attorney undertaking to pay the costs of that application. On the 22nd, the defendant's attorney delivered a bill of costs, with an appointment to tax indorsed thereon. On the 25th,

Archbold, for the defendant, obtained a rule nisi to set aside the judge's order, and for a stay of proceedings, for irregularity.

This rule was afterwards enlarged until the first day of Easter term, on the usual conditions.

Parry and Metcalfe now appeared to shew cause, when,

Byles, Serjt., objected that the affidavits to be used in opposition to the rule had not been filed a week before the term, as required by the practice of the court. (a)

(a) See 6 Scott, 900.

Parry produced an affidavit to explain the reason of the omission. It appeared that the attorney's clerk went to the office for the purpose of filing the affidavits, on Thursday the 5th of April, but found it closed for the Easter holidays, and consequently he was unable to file them until the following Wednesday. It was submitted, that, as the defendant could not, if the affidavits had been duly filed, have obtained copies of them until after the holidays, he had sustained no injury, and the case might fairly be held to fall within Hoare v. Hill (a) and re James Mackay (b), in the former of which it was held that affidavits might be read, though, by accident, not filed in due time; and, in the latter, that the party was estopped from taking such an objection, where he had obtained office copies of the affidavits. [Wilde, C. J. The rule was distinctly laid down in Turner v. Unwin (c), that nothing will excuse the omission to file the affidavits pursuant to the rule, but some inevitable accident; as was the case in Mackay, ex parte. The provision as to filing affidavits a week before the term is a bargain between the parties, which the court ought not to interfere with.]

Byles, Serjt., proposed, and Parry agreed, that the affidavits should be read, it being understood that the defendant should not be charged with the expense of them in the event of the rule being discharged.

Parry and Metcalfe accordingly proceeded to shew cause. They submitted, that the affidavits, which stated, that, about the time of the settlement of the action, the plaintiff and defendant were seen drinking and going about together to places of amusement, and that the plaintiff had been heard to use expressions

(a) 1 Chitt. Rep. 27.

(c) 4 Dowl. P. C. 16.

1849.

FRANCIS

บ.

WEBB.