in point of And as, on the one hand, the indefinite duration of a But definite restriction will not invalidate the contract whereby that limitation restriction is imposed, if in other respects reasonable, so, on time will not the other hand, the definite limitation of a restriction in point alone support of time will not render valid a restraint in other respects other respects unreasonable. restraint in unreason Thus, where (b) the defendant, upon entering the service of able. the plaintiff, who was a coal merchant, as town traveller and Ward v. Byrne. collecting clerk, gave him a bond conditioned (inter alia) that he should not, within two years after leaving the plaintiff's service, solicit or sell to any customers of the plaintiff, that he should not follow or be employed in the business of a coal merchant for nine months after he should have left the plaintiff's employ, and that he should not leave his employment without giving a month's notice, it was held that the bond was void as being in general restraint of trade, and that the restriction being limited in point of time did not render it valid. Whitaker v. A case (c), however, has been decided in Equity somewhat But see at variance with Ward v. Byrne, in which Lord Langdale, M. R., enforced, by injunction, an agreement entered into by an attorney not to practise in Great Britain for the space of twenty years without the consent of the person to whom he had sold his business. Of this case, Patteson, J., is reported to have Nicholls v. said (d), "I cannot help thinking that the Master of the Rolls Stretton. there must have proceeded on the ground that the limitation was for twenty years only." And on Ward v. Byrne being cited, the same learned Judge observed, "I do not see how that case can be reconciled with Whitaker v. Howe." It must be observed, however, that in Whitaker v. Howe the restriction was limited as to space, viz., to Great Britain; but in Ward v. Byrne the restriction was not limited at all as to space, though it was as to time. The decision in Whitaker v. Howe, therefore, may only amount to this, that the whole of Great Britain is not an unreasonable restriction on the sale of the goodwill of an attorney's business. If it be considered as a decision that a general restraint on trade, unlimited except in point of duration, is good, it is conceived that it cannot be supported, being at variance with all the earlier authorities. tain cus Together with the cases in which contracts in partial restraint Contract not of trade have been upheld may be classed those in which a to solicit cerservant or clerk enters into a contract not to interfere with, or tomers valid. solicit, the business of those persons who are his employer's customers. Such agreements are in general valid, whether the customers are named in a schedule or not (e). Thus, where (ƒ) an articled clerk to an attorney, in con- Nicholls v. (b) Ward v. Byrne, 5 M. & W. 548; and see Hinde v. Gray, 1 M. & G. 195; Procter v. Sargent, 2 M. & G. 20. (c) Whitaker v. Howe, 3 Beav. 383; see Bryson v. Whitehead, 1 Sim. & St. 74, where an agreement not to carry on the business of a dyer for twenty years was considered too large. (d) In Nicholls v. Stretton, 10 Q. B. 353; and see S. C. 7 Beav. 42. (e) Hunlocke v. Blacklowe, 1 Wms. Saund. 156; Rannie v. Irvine, 7 M. & G. 969; Nicholls v. Stretton, 10 Q. B. 346. (f) Nicholls v. Stretton, ubi supra. Stretton. Contract not to use particular secret of trade. Agreement partly good and partly bad upheld as to good part. Not binding sideration of the attorney taking him as an articled clerk, without any premium, covenanted that he would not during the articles, or at any time after their expiration, interfere with, or act as attorney or agent for, any person who had already been, or who should from time to time thereafter become or be the client, or correspondent in business, of the attorney, or any partner of his, or any person to whom he might sell his business, it was held that the attorney might recover in respect of breaches of covenant with regard to persons who had been his clients before and at the time of making the deed, and of persons who had been his clients whilst the clerk continued under articles. Upon similar principles a person may, by agreement, restrain himself generally from the use of a particular secret in his trade (g). If an agreement in restraint of trade is partly good and partly bad, and the good part can be separated from the bad without injury to the sense, the good part will be upheld, and the bad part rejected (h). But an agreement in restraint of trade is not binding on the on executors. executors of the party restrained, so as to prevent their carrying on the prohibited trade (i). Mode of securing per The performance of a contract in restraint of trade is usually formance of secured by a bond or covenant, not to do that which it is intended to prohibit, and in the event of a breach of that stipulation, to pay a certain sum as liquidated damages (k). contract in restraint of trade. By penalty. In contracts of this sort, where the damages are capable of accurate measurement, the terms " liquidated damages," are to be construed as a penalty. But if there be a contract, the breach of which cannot be measured, then the courts have held that the parties mean what they say, for this reason, that the subject-matter of the covenant is incapable of valuation (7). Upon this principle, as it is almost impossible to calculate the precise amount of damage which one person has sustained by the competition of another, who has been carrying on his trade in the neighbourhood after having contracted not to do so, the courts have almost, if not quite, invariably held in such cases, that the parties meant what they said, and the plaintiffs have recovered the whole amount of the stipulated penalty. (g) Bryson v. Whitehead, 1 Sim. & St. 74. (h) Chesman v. Nainby, 2 Str. 739; S. C. 2 Lord Raym. 1456; Mullan v. May, 11 M. & W. 653; Price v. Green, 16 M. & W. 346; Nicholls v. Stretton, 10 Q. B. 346; Tallis v. Tallis, 1 E. & B. 391, 412; and see Bryson v. Whitehead, 1 Sim. & St. 74. (i) Cooke v. Colcraft, 2 W. Bl. 856; S. C. 3 Wils. 380. Semble, however, that the restraint in that case was void, being in general restraint of trade. (k) Shackle v. Baker, 14 Ves. 468. (1) Per Lord Wensleydale in Atkyns v. Kinnier, 19 L. J., Exc. 132; S. C. 4 Exc. 776; and see Kemble v. Farren, 6 Bing. 141; Horner v. Flintoff, 9 M. & W. 678; Price v. Green, 13 M. & W. 701; Galsworthy v. Strutt, 1 Exc. 659; Reynolds v. Bridge, 26 L. J., Q. B. 12; S. C. 6 E. & B. 528; Mercer v. Irving, 27 L. J., Q. B. 291; Betts v. Burch, 28 L. J., Exc. 267. But where (m), by an agreement between plaintiff and de- Reindel v. fendant, the defendant agreed to become assistant to the Schell. plaintiff, in his profession of photographic painter, for the term of five years, and to give up his whole time to retouching portraits, &c., and not to take employment from others, and to follow the plaintiff's directions, and not divulge his secrets of the art, and be faithful to the plaintiff in his dealings, and the plaintiff agreed to pay the defendant a weekly remuneration for every portrait retouched after certain rates, and to guarantee that the defendant should be continually supplied with portraits to retouch; and, lastly, it was agreed that they should respectively forfeit 500l. as liquidated damages, in case of any breach, by either of them, in the true performance of the terms of the agreement; it was held that there was no doubt, nor, indeed, was it disputed, that the intention of the parties was not that the sum of 5007. should be paid absolutely by way of liquidated damages, on non-performance of any of the stipulations contained in the agreement. It was merely a penalty. And where a person has entered into a valid binding contract, By injunc not to carry on his business in a particular place or manner, to tion. the injury of another, courts of equity will restrain him from doing so by injunction (n). But they will not interfere by injunction where it is doubtful whether or not the act complained of amounts to a breach of the contract, but will leave the parties to their action at law (o). The remedy by injunction is often a more complete and effectual remedy than an action for the penalty agreed upon. And it seems that the jurisdiction of courts of equity, to restrain by injunction an act which a defendant is by contract or duty bound to abstain from, is not confined to cases in which those courts have jurisdiction over the acts of a plaintiff; the want of mutuality in the contract affords no objection to the exercise of the jurisdiction (p). And it is no objection to the exercise of this equitable jurisdiction, that the court cannot enforce the affirmative part of the contract. If there is a negative part which they can prohibit a breach of, they will do so. Thus, where a singer agreed that she would sing for a certain Lumley v. number of nights at the plaintiff's theatre, and not elsewhere Wagner. without his written authority, the Lord Chancellor granted an injunction to restrain her from singing elsewhere, although (m) Reindel v. Schell, 27 L.J., C. P. 146. (n) Whitaker v. Howe, 3 Beav. 383; Nicholls v. Stretton, 7 Beav. 42; see French v. Macale, 2 Dr. & W. 275, where Lord St. Leonards states the general rule of equity to be, that "if a man covenant to abstain from doing a certain act and agree that if he do it he will pay a sum of money, it would seem that he will be compelled to abstain from doing that act, and he cannot elect to (0) Turner v. Evans, 2 De G. (p) Dietrichsen v. Cabburn, 2 Phill. 52; Morris v. Coleman, 18 Ves. 437; Stocker v. Wedderburn, 3 Kay & J. 393; but see Hilis v. Croll, 2 Phill. 62; 1 De G. M. & G. 326. Granted in favour of purchaser of master's business. Benwell v. Inns. Refused after recovery of penalty. he could not enforce the specific performance of the entire contract (q). Where a milkman, on being taken into the service of a cowkeeper, &c., agreed faithfully to serve, &c., the master and his assignees or successors in business, and that he would not during such service, nor within the space of twenty-four calendar months after quitting or being discharged from the same, commence, carry on, or be concerned in any way whatsoever, either as servant or master in the trade or business of a cowkeeper, milkman, milkseller or milk carrier, within the distance of three miles from C. street, it was held, that the plaintiff having purchased the business from the master, was entitled to an injunction to prevent the servant setting up an opposition business (r). But the courts of equity will not grant an injunction where a party, who is entitled to the benefit of an agreement not to carry on a trade under a stipulated penalty as liquidated damages, has, in an action at law for breach of the agreement, recovered judgment for the full amount of stipulated penalty. As in that case the court will consider that he has purchased the right to do the act, and to restrain his doing it would be telling him that he should not have the full benefit of his purchase (s). (q) Lumley v. Wagner, 1 De G., M. & G. 604, overruling Kemble v. Kean, 6 Sim. 335; where Shadwell, V. C., had refused an injunction under similar circumstances. See also De Mattos v. Gibson, 28 L. J., Ch. 498. (r) Benwell v. Inns, 26 L. J., Ch. 663. (s) Sainter v. Ferguson, 1 M. & G. 286; but see Hardy v. Martin, 1 Cox, 26; Tall v. Ryland, 1 Ch. Cas. 183; Barret v. Blagrave, 5 Ves. 555; French v. Macale, 2 Dr. & W. 269; supra, p. 69, note (n). CHAPTER III. THE DUTIES OF THE SERVANT TO THE MASTER, AND THE RIGHTS AND REMEDIES OF THE MASTER TO 1. AS BETWEEN MASTER AND SERVANT. It is not proposed in the present work to enter upon a discussion of the moral duties of a servant towards his master. Neither is it proposed, in this chapter, to consider the cases in which the criminal law prescribes punishment for misconduct on the part of a servant. That part of the subject will be treated of hereafter (a). This chapter will be confined to a consideration of the duties which are civilly binding upon a servant, and the civil remedies open to a master who has sustained injury by the breach of such duties. DUTIES OF SERVANT TO MASTER, AND ACTION against ser service : In the first place, it is clearly the duty of a person who has Action by engaged to enter into the service of another, in any capacity, to master fulfil his engagement by entering into such service: and if he vant; for not fail to do so, without any good reason, he will be liable to an entering his action for such breach of contract (b). As where a man agreed to go out to Australia in the plaintiff's ship, as surgeon, but afterwards refused to go; the plaintiff recovered damages in an action against him (c). Since, however, a master would rarely (a) Post, Chaps. VIII. and IX. (c) Richards v. Hayward, 2 M. & G. 574. (b) Cotes v. Sadler, 2 Keb. 16. Richards v. |