In both cases, such restrictions only are permitted, as are deemed to be of public utility.

But devises and legacies on condition that the devisee or legatee does not marry, or on condition of their being enjoyed so long only as the devisee or legatee remains single, are treated as unconditional devises and bequests. The condition is only in terrorem, and is inoperative. The party does not forfeit the bequest by marrying, unless it be limited over by the testator.' This distinction, however, does not hold in cases of a condition precedent-as a legacy to be paid to A, on condition of his marrying B, or marrying C, with the consent of the executor, or other person named."

In favor of free and unconstrained marriages, very strict rules are applied to the limitation of legacies, and very liberal rules to the construction of consent to marriages by guardians, trustees, &c.3

The rule of the civil law is-matrimonium debet esse liberum; and all conditions, whether precedent or subsequent, annexed to gifts, bequests, &c. are void, if their tendency or design be to restrain the liberty of marriage.*

Contracts in restraint of trade are against sound policy. The distinction is well established between agreements that are intended for a general restraint of trade, and those which stipulate only for a particular restraint. All agreements not to exercise a particular trade or profession at any place are void, whether the agreement be by parol or by specialty. And it is immaterial whether it be the trade or pursuit which the party usually follows, or any trade or

11 Roper on Legacies, 3d ed. chapter xiii; 3 Ridgeway, 205, Keily v. Monck; 6 Mass. Rep. 169, Parsons v. Winslow.

Comyns's Rep. 726, Harvey v. Aston; S. C. Willes, 83; 4 Bur. 2052, Long v. Dennis.

* See Willes, 99, note (a.)

* See Comyns's Rep. 734-738.

pursuit, that he engages not to pursue. It is also immaterial whether the agreement is for the life of the party, or for a fixed and definite time. All such agreements are void, although made upon a valuable consideration; and they are denominated agreements for a general, or total, restraint of trade.'

But an agreement not to exercise a particular trade or business at a particular place, or not to trade with particular persons, is valid, if made on a valuable consideration. If without such consideration, the agreement is void, though it be by specialty. This is perhaps the only instance in which a contract by specialty does not import a consideration, which the party is by the common law estopped to deny. In this instance, however, though a consideration would probably be presumed, even if it did not appear on the face of the bond or other specialty, yet it may be disproved, and the contract avoided. And if a consideration is stated in the contract, yet it may be denied and disproved.

Agreements not to exercise a trade in a particular place, or to trade with particular persons, are denominated agreements for a particular, or partial, restraint of trade.

In England, an agreement restraining a party from pursuing a trade in any part of England, either for a limited time, or during his life, is intended by the phrase "an agreement in restraint of trade generally." Whether, in this country, the restraint must be confined to the state where the party resides, or may extend through the United States, might perhaps be questionable.*

11 Pow. Con. 167; 2 Comyn on Con. 467, 1st ed.

* See Mitchel v. Reynolds, 1 P. W. 181; 10 Mod. 27. 85. 130; 2 Comyn on Con. 1st ed. 467, where lord C. J. Parker examines and discusses all the prior decisions. 2 Saund. 156, note (1); 8 East, 80, Gale v. Reed; 8 Mass. Rep. 223, Pierce v. Fuller; Willes, 388; 2 Stark. Rep. 80, Woods v. Dennett; 1 Pick. 450.

Where a shopkeeper took a servant upon wages, in the business of a linen draper, which the servant was expected to learn and "become a perfect and knowing person in the said trade and mystery," and the servant gave the draper a bond of £100, conditioned to be void if he did not set up or exercise the trade of a linen draper within half a mile of his master's house, the contract was held to be valid. It appeared in the recital of the bond, that this contract was part of the master's inducement to take the servant into his employ, and that the £100 was the sum which the master might reasonably expect to receive from an apprentice to the trade. The consideration, therefore, was an adequate one.'

So of a bond, on a similar consideration, wherein the obligor engaged not to exercise his trade within the city and liberties of Westminster. So also of a bond-in consideration that the obligee had taken the obligor as an assistant in the business of a surgeon and apothecary, "for so long a time as it should please the obligee," not to practise on his own account, for fourteen years, within ten miles of the place where the obligee lived. The consideration, in this case, was the being admitted as an assistant with an established practitioner, with a view to the credit to be derived from that situation. So of a contract, in consideration of money and an annuity, by which an attorney engaged to relinquish his business and recommend his clients to another attorney, and not to practise within one hundred and fifty miles of London. So of a contract on sufficient consideration, not to carry on the business of a rope-maker during

1 2 Stra. 739, Chessman v. Nainby; S. C. 2 Ld. Raym. 1456.

* Cunningham's Rep. 51, Clarke v. Comer; S. C. 7 Mod. 230.; Rep. Temp. Hardw. 53.

3 5 D. & E. 118, Davis v. Mason; S. P. 2 Chitty's Rep. 407, Hayward v. Young.

44 East, 190, Bunn v. Guy.

life, except on government contracts, and for such of the party's friends as the obligee should refuse to supply on credit; otherwise it seems, of a contract not to carry on the business with any private individuals.'

An agreement not to run a stage-coach between Providence and Boston, in opposition to the plaintiff's stage-coach, was held good. Also an agreement not to be interested, directly nor indirectly, in any voyage to the north-west coast of America, or in any traffic with the natives of that coast, for seven years. And it is a breach of such agreement to own and fit out a vessel for such voyage, though the party divest himself of all interest in the vessel and cargo before her departure on the voyage. Also an agreement that one person shall give another all his freighting of goods on Connecticut river at the customary prices, to be paid in goods, and shall not encourage any other boatman to compete with the plaintiff in the business of boating. The consideration is the plaintiff's undertaking to do all the defendant's freighting, and take his pay in goods.*

The consideration which will support an agreement for a particular, or partial, restraint of trade, seems to be the same that will support any other agreement, as appears from the cases already cited. In Bragg v. Tanner," the sum of ten shillings was held to be a sufficient consideration for an agreement not to keep a draper's shop in Newgate market. And one dollar was held to be a sufficient consideration for a covenant not to run a stage-coach in opposition to the plaintiff. In Stearns v. Barrett,' the plaintiff's engagement was held to be a sufficient consideration for that of the de

18 East, 80, Gale v. Reed.

2 8 Mass. Rep. 223, Pierce v. Fuller; S. P. 2 Chitty's Rep. 407, Hearn v. Griffin.

39 Mass. Rep. 532, Perkins v. Lyman.

43 Pick. 188, Palmer v. Stebbins.

5 Cited in Cro. Jac. 597.

8 Mass. Rep. 223.

71 Pick. 443.

fendant; and in Palmer v. Stebbins,' the consideration was of a similar nature. In all cases, the facts being found, the court is to decide whether there is any consideration which the law recognizes; and in this class of cases, it seems, from the books, that the court is to determine whether the consideration is sufficient to sustain the contract.

No case has been found, in which a contract for a particular restraint of trade was avoided for insufficiency of consideration.

Lord chief justice Parker, in Mitchel v. Reynolds,' notices the cases of grants or charters, customs and by-laws, in restraint of trade. Monopolies are odious, and generally contrary to the policy of the common law. They are said to be contrary to Magna Charta. A grant, however, of the sole use of a newly invented art is held to be good, being indulged for the encouragement of ingenuity. But by the English statute of James I. and by the patent laws of the United States, such grants are limited to a few years. Agreements, therefore, concerning the disposition and use of patented machines, &c.-though in restraint of trade-are not, for that reason, void. And a bond, or other specialty, by which a patentee should engage not to use his machine, could hardly be avoided for want of consideration. Indeed, a transfer of his right, per se, renders him legally liable to damages, if he should afterwards use the invention. That he may make such transfer without consideration, if he please to give it away, would not seem to admit of doubt.

Patented inventions, and secrets of art or trade, not patented, are not within the scope of the law against restraint of trade. Thus, it has been decided that a trader may sell a secret in his trade, and restrain himself, generally, from the use of it."

13 Pick. 188.

21 P. W. 181.

31 Sim. & Stu. 74, Bryson v. Whitehead; Vickery v. Welch, in the Supreme Court of Massachusetts, Norfolk County, Oct. 1837.