TRADE. HAYWARD against YOUNG. 1818. 20th Nov. bond by an apothecary, not ness within 20 miles, is not GASELEE moved for the defendant, to set aside a A ABBOTT C. J. May not the business of an apothecary extend for twenty miles, and might not the setting up within that distance be injurious to him? The principle so luminously laid down and commented upon in Mitchell v. Reynolds, 1 Peere Wms. 181. where Lord C. J. PARKER said, that it was quite out of the question to argue it in such a case, is completely applicable to the present. Judgment for the plaintiff. (a) See also 4 East, 198. 8 East, 80, as to arguments and rule on this subject. In Davis v. Mason, 5 T. R. 118, a bond, not to practise within 10 miles, was considered valid. illegal as in re straint of trade (a). HEARN against GRIFFIN. AB BBOTT for defendant, argued in support of a de 1815. 31st Jan. An agreement between two murrer to a declaration, which stated that plaintiff coachmasters was the proprietor of the one coach, and the defendant proprietor of another, and that an agreement was made between them that they should not run in oppo not to oppose each other, or charge higher prices, is legal. 1815. HEARN against GRIFFIN. sition to each other, but should each charge the same prices to passengers. This stipulation, it was urged, was in restraint of that competition in trade which is so conducive to the interest of the public, and consequently was void. ELLENBOROUGH C. J. How can you contend that it is in restraint of trade; they are left at liberty to charge what they like, though not more than each other? and by the agreement, particular days and times for each to run in the week are fixed. This is merely a convenient mode of arranging two concerns which might otherwise ruin each other. Abbott then observed that there was a stipulation not to be engaged in other coach concerns, and that Fagg, of Holborn, should not have any concern in any other coach. The whole deed upon oyer was before the Court, and the Court will not support this contract; there is no consideration but the mutual restraint. There is no averment that they continued to run their coach. There was no partnership interest between the plaintiff and the defendant. They were proprietors of different coaches, and the covenant was in restraint of the other coach, though the party covenanting might cease to run. BAYLEY J. If one ceases to run, is not the contract then at an end? and if you do not perform your part of the contract you should shew your excuse. A general restraint is bad. ELLENBOROUGH C. J. If this argument could be sustained, then a covenant in an indenture of partnership, that neither of the parties should be engaged in any other business with any other persons, would not be good, because it might prevent the public from having the advantage of his industry in another business. Each contracting party here has one day to work his particular coach. Nor is there any limitation as to size of the coach; the defendant may have a long coach. This agreement does not preclude a third or more persons from starting in opposition to plaintiff and defendant, This case was afterwards settled. 1815. HEARN against GRIFFIN. TREASURER OF COUNTY. W. B. MAINWARING, ESQ. Treasurer of the NICHOLSON moved, on the statute 53 Geo. 3. c. 113. s. 6, and on a certificate of the treasurer of the county of Surrey, for a rule calling on the treasurer of the county of Middlesex, to pay over money expended for the relief of a prisoner in the King's Bench and Marshalsea prisons, to the treasurer of the county of Surrey. He said the statute prescribed this mode of proceeding, on the production of the certificate of the treasurer on oath, and that the words of the statute are "neglect or refuse," to the neglect or refuse," to the former of which the certificate amounted. BAYLEY J. You should have an affidavit of the application and refusal, or that Mr. Mainwaring is out of the way; and not having that, the motion is pre mature. Rule refused. TRESPASS FOR MESNE PROFIT. 1816. 2d May. A joint action for mesne profits may be supported by several les sors of plaintiff in ejectment, after recovery therein, although there were only separate demises by each. CHAMIER and PLESTOW against LLINGON. BLOSSETT Serj. moved to enter a nonsuit in an action of trespass quare clausum fregit, for mesne profits. The defendant pleaded the general issue, and liberum tenementum. On the trial the record in an action of ejectment was produced, stating several demises of the present plaintiffs, but no joint demise. The possession had been delivered to an agent sent by the plaintiffs' attorney. The objection was, that this did not support a joint action of trespass. BAYLEY J. Suppose they were tenants in common. The judgment in ejectment affirmed that some title in part was vested in each. LORD ELLEN BOROUGH C. J. Possession was delivered to an agent of both, which is prima facie evidence of the possession of both. BAYLEY J. It was a general verdict, which affirms a title in part in each. Rule refused. TRIAL. ANONYMOUS. SCARLETT, on a former day, had obtained a rule to shew cause why the trial should not be put off, on an affidavit that a material and necessary witness in the cause was absent, and was not (under circumstances stated in the affidavit) likely to return till a certain day. Gifford now shewed cause, and contended that the affidavit was insufficient, on the ground that it did not positively state that he was expected to return on that day. LORD ELLEN BOROUGH C. J. An affidavit that a material witness is not likely to return until such a day, is an implied assertion that he is expected to return then, and such an assertion upon which perjury could be assigned. Rule absolute. CURWOOD moved to put off the trial of five causes, on the ground that a petition was before the Chancellor, as to the commission of an act of bankruptcy, and that they could not safely proceed to trial before it was heard, and that it was to be heard next petition day. LORD ELLENBOROUGH C. J. If we granted this rule, it would be a receipt to carry all cases of this nature over the term, for the party has only to file petition to do so; for it is the course in the Court of Chancery not to hear them till after Term. Rule Nisi refused. 1816. 3d July. An affidavit, witness is not likely to return till a day therein mentioned, impliedly swears that he is expected then. that a material 1814. 9th Nov. The Court will not put off the trial of a cause brought by the assignees of a bankrupt, because a petition is pending against the commission of bankruptcy. |