1793.

DAVIS

against

MASON.

for fourteen years,) was that the defendant would not exercise the business, &c. within that distance, &c. The defendant pleaded that before the execution of the bond it was agreed between the plaintiff and the defendant that the latter should become an assistant to the former, in the above business," for (sptt. "so long a time as it should please the plaintiff," and that the con defendant should not exercise that business on his own account within the distance, &c.; that the defendant in pursuance of such agreement should execute the bond; that the defendant accordingly entered into the plaintiff's service on the 18th of July 1789; that on the 15th of August 1791, the plaintiff "without the consent of or any misconduct or default in or auction. "by the defendant and against his will dismissed the defendant "from his service as an assistant," &c.; and that the defendant lawfully served an apprenticeship in this business, wherefore he exercised it on his own account within ten miles, &c.; concluding that the agreement and bond were void in law. The plaintiff replied that the defendant was guilty of misconduct when in the plaintiff's service, for which he was dismissed, &c. To this there was a special demurrer; assigning for causes, that the replication neither admitted and avoided or denied the defendant's right to practise the business, &c. and neither admitted or denied that the bond was void; that the fact attempted to be put in issue by the replication was wholly immaterial to the condition of the bond, on which no decisive or proper issue could be taken; and that it was not alleged in the replication how or in what respect the defendant was guilty of misconduct, &c.

The Court said that the pleadings were entirely beside the question, and desired the counsel to confine themselves to arguments on the validity of the bond.

Lawes in support of the demurrer admitted, on the authority of Mitchell v. Reynolds (a), that bonds which restrain a person from exercising a particular trade in a particular place are not necessarily void, but contended from the same authority that such a bond ought to be founded on a reasonable and an adequate consideration; which did not appear in the present case. The bond in question was unreasonable both in the duration and limits of the prohibition. The duration of time (fourteen years) is much longer than in any of the decided cases; and though such an obligation might be good for some

(a) 1 Pr. Wms. 181.

period,

DAVIS

against MASON.

1793. period, yet it will not follow that it will for any period of time. The limits of ten miles all round from Thetford are also too extensive. It has either been confined to the limits of a parish, as in Mitchell v. Reynolds, or to some short distance, as half a mile, as in Chesman v. Nainby (a). But the limits in question are much too wide to be called reasonable. There is another argument against this bond which may fairly arise from the nature of the defendant's employment, in which the public health is materially interested. It is repugnant to every principle of justice that a medical man should be restrained by law from giving his assistance even in the greatest extremity, and when there is no time to wait for other help. But above all, the consideration is inadequate; for although the defendant was to become bound to the extent above stated in consideration of the advantage he was to derive from being in the service of the plaintiff, yet the contract is so unequal that the moment after the defendant had executed the bond the plaintiff might have dismissed him. Had the plaintiff engaged to instruct the defendant in his profession, or to pay wages, or to retain him in his service for any certain length of time, either of these might have been a sufficient and legal consideration: but neither appears. On the ground of inadequacy, therefore, the bond is clearly void.

Lord KENYON, Ch. J. (stopping Dampier, who was to have argued on the other side.)-This question has been at rest ever since the case of Mitchell v. Reynolds. A bond in restraint of trade cannot be arbitrarily taken, and without consideration; some consideration must appear. But here, the plaintiff being established in business as a surgeon at Thetford, the defendant wished to act as his assistant with a view of deriving a degree of credit from that situation; on which the former stipulated that the defendant should not come to live there under his auspices and steal away his patients: this seems to be a fair consideration for the bond. Then it was objected that the limits within which the defendant engaged not to practise are unreasonable: but I do not see that they are necessarily unreasonable, nor do I know how to draw the line. Neither are the public likely to be injured by an agreement of this kind, since every other person is at liberty to practise as a surgeon in this town.

(a) 2 Str. 739.

Judgment for the Plaintiff (b).

(b) Vide Colmer v. Clarke, 7 Mod. 230.

1793.

OUTRAM against MOREWOOD.

Monday, Jan. 28th.

Entries

RESPASS for breaking and entering the plaintiff's close, made by a Talled The Cob Close, in the parish of Alfreton. Plea, third per

son, deceas

books of re

his tenant

for a parti

cular estate

are not evidence to identity of

prove the
the land in

a

cause be

tween two

others.

"

not guilty, and several special pleas justifying under a right ed, in his to dig coals in the locus in quo, as parcel of the lands of which ceipts of Sir John Zouch was formerlyseised. SirJohn Zouch being seised rent from of certain lands lying in this parish in the 18 Eliz. conveyed them away, reserving the coals under the same, and certain rents. John Zouch to whom these rents and coals came by descent in the 15th Jac. conveyed them to one Turner, who afterwards sold the rents, but not the coals, to John Morewood, who devised them to M. Morewood, who in the year 1708 conveyed them to Rowland Morewood, from whom the defendant claimed [7 East 279. 10 Ib. 206.] those rents. And about three years ago G. Morewood the de-infardo Vil. fendant's late husband, who was then in the possession of these rents, brought the coals also from Thoroton, the legal representative of the Turner family. At the trial before the Chief Baron at the last assizes at Derby, it became material to identify the Cow Close in question to be a part of those lands which had been the estate of Sir J. Zouch, and out of which the rents and coals had been reserved. This was attempted to be done by tracing the lands through the possession of several persons claiming under the Zouch family; by shewing that this close had been in their possession; and that the same rent was paid now as had been paid for it by the owners of the land to the persons claiming under Zouch during all that time; from whence it would follow, as was contended, that this was part of the lands of Zouch out of which the coals also were reserved, which was the only thing now in question. To substantiate this, the deed of 1708 was produced (which referred to the former conveyance from the Zouch family) in order to shew that a rent of 39s. (the same which was now paid for this Cow Close) had been payable out of lands, part of the Zouch estate, in the possession of one Adyn who was tenant to one Machell the then owner of the inheritance; and that Adyn was in possession of the Cow Close alone within eight years after the deed of Anne. Then was produced, in order to fill up a chasm of time, the evidence upon which the principal question arose, which were entries in certain books made by Rowland

Morewood,

OUTRAM against MORE

WOOD.

1793. Morewood, in which he acknowledged the receipt of the same rent for several years from Machell the owner of the Cow Close, under whom the plaintiff derived title. It was proved by living witnesses that this rent of 39s. was continued to be paid by persons claiming under Machell. But the question was, Whether these entries made by a person from whom the defendant claimed the rent, though not the coals, ought to be received in evidence for the purpose of proving the identity of the land in order to establish his right to the coals also? The Chief Baron admitted the evidence, expressing some doubt as to its legality. And there being a verdict for the defendant, a rule nisi was obtained for setting it aside and granting a new trial on the ground that this evidence had been improperly admitted; against which

Erskine, Coke, Clarke, and Willes now shewed cause; contending that upon the principle of several decided cases the evidence had been properly received. Rowland Morewood must for this purpose be considered as a person entirely indifferent between the parties; because the only subject matter now in dispute is the right to dig coals, with which he had no concern. And the entries were produced in evidence not to establish the defendant's right to the rent which he claimed from Rowland Morewood, but merely to prove the identity of the land for which such rent had been paid. Now Rowland Morewood not only stood indifferent to that purpose, but the entries made by him were, as far as they went, against his own interest; for he thereby acknowledged the receipt of so much rent from bis tenant, and furnished evidence against a demand for it again. This falls directly within the principle of the case of Barry v. Bebbington (a), where evidence was received of entries made by the deceased steward of a former owner, from whom title was derived, of sums received by him for his master for trespasses committed on the locus in quo, the right to which was in issue. And it is not so strong as the case of Searle v. Lord Barrington (b), where the 'indorsement of the obligee upon a bond of interest received within twenty years was held good evidence in an action against the obligor to rebut the presumption of payment from length of time. Or, as the case of Stend v. Heaton (c), where an entry of the receipt of money by officers of a township from the officers of another township of a proportion of church rates made in a parish book was held evidence to charge the latter officers with the same proportion in future. (a) Ante, 4 vol. 514. (b) 2 Str. 826. (c) Ante, 4 vol. 669.

Of

Of the same nature are entries made by family persons who are dead, to prove a pedigree, which have always been received as evidence; Sir T. Ray. 84. These entries are to be taken in the same manner as the declarations of the party himself who made them. If Rowland Morewood had been living, he certainly might have been asked from whom he received this rent, and for what parcel. After his death his declarations to the same effect would also have been evidence, according to the case of Davies v. Pierce (a); where declarations by tenants were held admissible evidence after their death to shew that a certain piece of land was parcel of the estate they occupied. If such declarations are evidence, it follows à fortiori that written entries are admissible in evidence, being in their nature more certain, and less liable to mistake.

Bower, Balguy, Gally, and Sutton, contrà, were stopped by the Court.

Lord KENYON, Ch. J.-I agree with the defendant's counsel that this book stands in the same situation, and is entitled to the same degree of credit, as a declaration of Rowland Morewood: but I cannot agree to the conclusion drawn from it, that such a declaration could have effected the rights of these parties. All evidence (except in certain particular cases) must be given on oath but this is merely the declaration of a person not on oath. And although a general right may be proved by tradition ry evidence, yet a particular fact cannot. This is distinguishable from all the cases cited; in those something was produced in respect of the interest of the party; and what the party did or said may be evidence against himself. But the cross made by Rowland Morewood in his book was a mere private memorandum of his own, to remind him that he had received this rent; and it cannot be admitted to decide the right between these parties. At that time Rowland Morewood had no interest in this question. Besides, evidence of this kind can only be admitted to restrain, not to advance, the right of the party who makes it. What a man does in his closet ought not to affect the rights of third persons: there is only one instance in which this is allowed, namely, the books of an incumbent respecting his tithes, which may be evidence for his successor (b). But that has always been considered as an excepted case. BULLER, J.-I agree that the entry in Rowland Morewood's book must be considered in the same light as a declaration by (a) Ante, 2 vol. 53. (b) Vide 2 Ves. 43.

1793.

OU CRAM against MORE

WOOD.