finds it worded. Its general intent is to abolish arrests on mesne process; the cases provided for by the 3rd and 7th sections are but exceptions, and he must see the case fairly brought within them. I cannot say the evidence satisfies me of Mr. O'Meara's present intention to leave the country, and, therefore, on these affidavits, should refuse to make the order at Chambers. The first and second points remain to be considered. The error insisted on for the reversal of the outlawly is the absence of the defendant from England, at the date of the exigent, indeed, during the whole proceeding to outlawry. Not being a case within the statute of Elizabeth, it is not compulsory on the Court to require bail, conditioned absolutely to pay the condemnation money; but the fair result of the cases appears to be, that although the reversal is a matter of right, still, where the party applies for it on motion, the Court may exercise its discretion as to the terms it will impose on him. Mathews v. Gibson (a), Havelock v. Geddes and Graham v. Grill (b). Now, without any reference to the statute of 1 Vict. c. 110, I see nothing in the present case which should induce me to require bail absolutely for the payment of the condemnation money. On the other hand, I should consider it very much a matter of course to require it in the alternative, unless that statute has introduced a new principle to guide or abridge the discretion, which I should otherwise have been at liberty to exercise. That statute had, I conceive, two objects in view, (speaking generally, and passing by the excepted cases,) to abolish arrest on mesne process for the future, and to dischaage those, who at the time of its passing were in custody under such process. Before the statute, if the action was on bailable process, or although on serviceable, yet if affidavits were made of a debt on which the party might be held to bail, the defendant, on reversing the outlawry, would have been at least held to special bail in 1839. HARVEY v. O'MEARA. 1839. HARVEY v. O'MEARA. the alternative; if the original process was only serviceable, and the cause of action precluded any other, he would have been, generally speaking, held to common bail only. This practice followed the rule laid down for the sheriff by the 4 & 5 W. & M. c. 18, and also proceeded on the principle of placing the plaintiff in the same situation after the reversal as before. If, therefore, this action had been commenced after the passing of the recent statute, and the defendant had not been arrested by a Judge's order, there can be little doubt, that the correct course would have been to reverse the outlawry, on entering a common appearance only. The same course, I think, must have been followed, if the defendant had been outlawed before the statute, and had been found in custody under the capias utlagatum, at the time of its passing; for giving it that liberal construction which it ought to receive, he must have been considered as in custody only under mesne process, within the meaning of the 7th section, and the reversal would have been the reversal only of an interlocutory judgment. The question is, whether a different course should now be pursued? because the action was commenced so long since, that, but for his leaving the country, and so delaying the plaintiff's proceedings, it may be presumed that the plaintiff would have recovered final judgment against him before the statute had passed, and so been placed beyond its operation. Upon consideration, I do not think I can properly act upon such a presumption; it must be taken, I think, as a matter still undecided, whether any thing will ever be recovered against him; and by compelling him to find bail, I should be certainly placing him in a different situation from that in which, by the general rule of law, defendants are now placed, before final judgment recovered against them; while, from the uncertainty of what that judgment would have been, or that it would have been recovered before the statute passed, I am not sure that I should not be placing the plaintiff in a better situation than he would have been in before the outlawry. By requiring now only a common appearance, I leave it open for the plaintiff to apply for the defendant's arrest and special bail, if circumstances should arise, which, under the statute, make that course available for him. Upon the terms, therefore, of entering a common appearance, and paying all the costs, including those of the present application, let the outlawry be set aside. Rule accordingly. 1839. HARVEY v. O'MEARA. HUTTON V. PARKER. (Before the four Judges.) THIS was an action of debt on bond. The declaration stated, that the defendant had entered into the bond on which the action was brought, the condition of the bond being, that he should not enter into the service of any other person than the plaintiff, in the town of Sheffield, or within ten miles thereof, during two years after leaving the service of the plaintiff. To this the defendant demurred. The first ground of demurrer was, that in the declaration there was no sufficient consideration set forth for the defendant's entering into such a bond, which was one in restraint of trade; secondly, that the bond, within the limits mentioned in it, went to restrain the defendant from working at all. Butt, in support of the demurrer. This is a bond in restraint of trade, and, therefore, a good consideration ought to appear on it, otherwise it is void. The declaration should state the consideration. All the cases are uniform on this subject, from the case of Michell v. Reynolds (a) (a) 1 P. Wms. 181; 10 Mod. 27 In an action of debt on a bond to H., not to enter into the service of another per- years after service, some good consider ation ought to be shewn on the face of will not pre sume one. 1839. HUTTON v. PARKER. to Hitchcock v. Coker (a) have clearly laid down the rule, that when a contract is in restraint of trade, it is bad of itself, and that a sufficient consideration must be stated for it. The Court stopped him, and called on Whitehurst, contrà.-It is not necessary in an action of this sort that the consideration should be stated; should the Court, however, decide otherwise, still a sufficient consideration appears for the defendant's submitting himself to the restraint which this bond imposes. It is not, indeed, a bond in restraint of trade. It is only to prevent him, for a limited time, from going into the service of another, and that has never yet been held to be in restraint of trade. If this bond is void, it would have been void at common law; but what is there to make it so? Nothing appears to shew it was such a restraint as the law will not permit. As to the other objection. This being a bond, it is not necessary that a consideration should appear on the face of it. It is good without that. Lord DENMAN, C. J.-But can such a bond as the present be held good without a sufficient consideration appearing on the face of it? Whitehurst.—It may; for it may be presumed, and here the obligation itself shews that at the time of its being made, the defendant was in the service of the plaintiff, which was for the defendant's benefit, and that alone would form a good consideration. Davis v. Mason (b) is a case in point. A., the master, took a bond from his assistant, in consideration of retaining him in his service, that he should not, for fourteen years, practise, on his own account, within ten miles of A., and the bond in that case was held good. (a) 6 Ad. & El. 438; 1 Nev. &. P. 796. (b) 5 T. R. 118. Lord DENMAN, C. J.-We cannot leave this to conjecture. It may or may not be true in part that there is consideration. If parties seek to enforce an obligation of this kind, some consideration for it must be shewn. Here, however, none at all is shewn. The demurrer is good, and judgment must be for the defendant. Judgment for Defendant. 1839. HUTTON v. PARKER. FLIGHT V. THOMAS. (Before the Four Judges.) ACTION for Nuisance.—The declaration alleged as a nuisance, that the defendant had, upon his own ground a mixen, or dung-heap, upon which all kinds of rubbish and offensive matter were deposited; and that the sinell arising therefrom and engendered thereby, was a great annoyance to the plaintiff in the enjoyment of his property. The pleas were, first, not guilty-2ndly, Possession for more than twenty years of a certain house and premises, and the enjoyment for that or a greater period of the right to use, and make, and have the said mixen as an easement belonging to the said premises. Replication traversed, that the defendant had for and during the said period the right and enjoyment of the said mixen. Issue was joined thereupon, and the cause was tried before Lord Denman, when the jury found a verdict for the defendant, in the following words :-" We consider it to be a nuisance, but that it has continued for more than twenty years; and we think the plaintiff came to it." The verdict was, at the trial, therefore, entered for the defendant. A rule was afterwards obtained, calling upon the defendant to shew cause why judgment should not be entered for the plaintiff non obstante veredicto. VOL. VII. CC C D. P. C. Action for Plea, prescription for Nuisance. an easement. The plea must that the right distinctly shew clai claimed is an otherwise the |