be sustained thereby," that is, from his default; and the damage to be sustained thereby does not necessarily mean the difference of the price on the day of the actual sale, and that for which it was contracted to be sold: for if he might have obtained more at any intermediate time, he may not be said to have thereby sustained (that is, by the default of the defendant,) the damage which he incurred by waiting, but by his own default. The jury therefore were, in each case, to inquire whether the plaintiff might not have sold sooner than he did, and thereby saved part of the loss.

Upon the 8th section of the act it has been decided, that if A., being possessed of a certain quantity of stock, empowers B., at his request, to sell the same for his own benefit, in consideration of which B. agrees to transfer, at the next opening, the same quantity of stock in A.'s name, such a contract is not prohibited by the act; but that, on failure of B.'s engagement, A. may maintain an action of assumpsit against B. to recover the value of the stock. Thus, in the case of Sanders v. Kentish and Hawksley, (k) which was an action of assumpsit for not transferring 3000l. 4 per cents. into the plaintiff's name, at the opening day in April, 1795; on the trial, a verdict was found for the plaintiff for 28201., subject to the opinion of the Court of King's Bench on the following case:On the 1st of December, 1794, the plaintiff, being possessed of the sum of 3000l. 4 per cent. annuities, executed to the defendant, Kentish, a letter of attorney, empowering him to sell the same, and to apply the produce for his own benefit; in consideration of which, Kentish, and the defendant Hawksley, as a surety for Kentish, signed an engagement, or undertaking, whereby they engaged " on the opening of the 4 per cents. consols, to transfer 3000l. 4 per cent. annuities, in the name of the plaintiff, in lieu of the same sum sold by him on account of Kentish." On the 3d of December, 1794, the defendant, Kentish, by virtue of the letter of attorney, sold and transferred the said stock to three different persons, for 25161. 5s., which he received for his own use. No stock was transferred to the plaintiff according to the above agreement. The defendants, at the time of making the agreement to transfer the stock as aforesaid, were not, nor was either of them possessed of or entitled to, in their or either of their own name or names, or in the name or names of a trustee or trustees, to their or either of their use, of any such stock as in the contract or agreement mentioned, or any 4 per cent. annuities whatsoever. The question was, whether the plaintiff was prevented from recovering by the statute 7 Geo. 2. c. 8. s. 8.? The Court were of opinion, that the contract was valid, and not prohibited by the statute, and that the plaintiff was entitled to recover. And Lord Kenyon Ch. J. said, "It is impossible to read this case without feeling great indignation at the con

(k) 8 Term Rep. 162. 2 Esp. Rep. 698. S. P.

duct of the defendant Kentish. The case is shortly this: the defendant, Kentish, who is a stockbroker, and who was therefore most probably acquainted with the statute on which his counsel has now relied, applied to the plaintiff, a clergyman, who was probably ignorant of that law, and obtained from him a loan of 3000l. stock, on an undertaking to replace the same stock on a given day; from this transaction the plaintiff was to derive no advantage whatever; the plaintiff gave him a letter of attorney, empowering him to sell the stock; he then put the money into his pocket, and when the day of payment arrived refused to pay the plaintiff, insisting that the statute rendered the contract void, and that therefore the plaintiff cannot enforce that contract in a court of law. To be sure if such were the positive provisions of that statute, the consequence must follow, however hard it might press upon the plaintiff. But before we assented to so monstrous a proposition, we would look with eagle's eyes into every part of the statute, to see that such was the intention of the legislature. Their intention is to be collected from the whole act taken together. The act is intitled An Act to prevent the infamous Practice of Stock-jobbing.' But if the defendant's objection were to prevail, the title of the act ought to be altered, and it should run thus, 'An Act to encourage the wickedness of Stock-jobbers, and to give them the exclusive privilege of cheating the rest of Mankind.' On considering the whole of the act together I am clearly of opinion, that its object was only to prevent gambling in the funds; but the legislature did not mean to prohibit a loan of stock, and an undertaking to replace it. I do not think that this case comes within the meaning of the prohibitory clauses in the act, but it is within the exception in the last section."

In estimating the measure of damages in an action for breach of a contract to replace stock on a fixed day, it is not enough to take the value of the stock on that day, if it has risen in the meantime, but the highest value as it stood at the time of the trial, there being no offer of the defendant to replace it in the intermediate time, while the market was rising. (1) And in the case of M'Arthur v. Lord Seaforth, (m) which was an action upon a bond conditioned for replacing stock, it was decided, that the obligee is not entitled to special damages for a profit which he might have made if it had been sooner replaced, unless he shows that he actually would have made it: but that on a failure to replace stock, the measure of damages is the price at the day when it ought to have been replaced, or the price at the day of the trial, at the option of the plaintiff; but not the highest price at any intermediate day: and it appearing that the plaintiff gave a bond conditioned to replace 5 per cent.

(1) Shepherd v. Johnson, 2 East Rep. 211. Downs v. Back, 1 Stark. Rep. 18.

(m) 2 Taunt. 257.

S.P.

stock on a given day: after that day Government gave the holders of that stock an option to be paid off at par, or to commute their stock for 3 per cents.; the plaintiff expressed to the defendant a wish to have the stock replaced, that he might be paid at par, but no wish to take 3 per cent. stock: it was held, that he was not entitled to recover the price of so much 3 per cent. stock as he might have exchanged for the 5 per

cents.

CHAPTER X.

OF AGREEMENTS NOT TO CARRY ON TRADE WITHIN

CERTAIN LIMITS, &c.

F a man for a valuable consideration agree that he will not exercise his trade or profession within a particular place, he shall be bound by it but a promise or obligation which binds any to a total restraint of trade, whether for a limited time or generally, is unlawful and void. (a)

Thus, in the case of Mitchell v. Reynolds, (b) which was an action of debt on 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, 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 50%., then the said obligation to be void which being read and heard, 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 after this matter had been several times argued at the bar, Parker Ch. J. delivered the resolution of the Court as follows: "The general question upon this record is, whether this bond, being made in restraint of trade, be good? And we are all of opinion, that a special consideration being set forth in the condition, which shows 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

(a) Vide Com. Dig. tit. Trade, (D.) 3. (b) 1P. Wms. 181. Note, this case has fully settled and established the law on

this subject; and put at rest any seeming difference of opinion in former cases.

injury to a fair contractor, it ought to be maintained, but with this constant diversity, viz. where the restraint is general not to exercise a trade throughout the kingdom, and where it is limited to a particular place; for general restraints are all void, whether by bond, covenant, or promise, &c. with or without consideration, and whether it be of the party's own trade or not. Cro. Jac. 596. 2 Bulst. 136. Allen, 67. Particular restraints are either with or without consideration: such as are made without consideration, are void by what sort of contract soever created. 2 H. 5. 5 Moor, 115. 242. 2 Leon. 210. Cro. Eliz. 872. Noy, 98. Owen 143. 2 Keb. 377. March 191. Show.2. (not well reported.) 2 Saund. 155. But particular restraints with consideration are valid. Thus, where a contract for restraint of trade appears to be made upon a good and adequate consideration, so as to make it a proper and useful contract, it is good. 2 Bulst. 136. Rogers v. Parry. Though that case is wrong reported, as appears by the roll, which I have caused to be searched, it is B. R. Trin. 11 Jac. 1. Rot. 223. And the resolutions of the judges were not grounded upon its being a particular restraint, but upon its being a particular restraint, with a consideration; and the stress lies on the words, as the case is here, though, as they stand in the book, they do not seem material. Noy, 98. W. Jones, 13. Cro. Jac. 596. In that case, all the reasons are clearly stated, and, indeed, all the books, when carefully examined, seemed to concur in the distinction of restraints general, and restraints particular, and with or without consideration, which stand upon very good foundation. Volenti non fit injuria; a man may, upon a valuable consideration, by his own consent, and for his own profit, give over his trade, and part with it to another in a particular place."

The principle of this case was afterwards recognized and adopted in the case of Chesman and Elizabeth his wife v. Nainby in error, (c) which was an action brought by the defendant in error against the plaintiff in error in Easter Term 1725, in the Court of Common Pleas, on a bond dated the 5th of October, 1721, for 100%. entered into by Elizabeth, when unmarried, to the defendant. To this action the plaintiffs pleaded, and set forth the condition of the bond, which was in the words following, viz. "Whereas the above named Margery Nainby, at the special instance and request of the above bounden Elizabeth Vickers, is to take her the said Elizabeth Vickers, for her hired servant, to attend in her shop, and to inspect her customers there, and to show her goods, and further to stand by and assist her the said Margery in her said trade and business of a linen-draper, whereby it is presumed the said Elizabeth, if she continues any length of time in the said service of the said Margery, may become a perfect and knowing person in the said trade and mystery. And whereas the said Margery Nainby consents to hire

(c) 1 Bro. P. C. 234. 2 Stra. 759. 2 Lord Raym, 1456. S. C.