of the service. Now, that is clearly bad, since it may amount to an absolute prohibition to the defendant's carrying on business in this country; for it is at the option of the plaintiffs to go to every place or town of consideration, for a day, and so it would become a general restriction; and if it be, then it is clearly bad, and the contract being entire, if it is bad in part, it is void altogether: Shackell v. Rosier (1), Waite v. Jones (2); Chitty on Contracts, 693, 694. Secondly, the pleas are not bad for alleging that the fourth article in the agreement was "an undue, unreasonable, and unlawful restriction of trade," thus leaving the matter for the consideration of the jury; for they, and not the Court, are to determine whether the restraint is an unreasonable one or not; and the plaintiff might well have taken issue upon it. In Hitchcock v. Coker (3), Lord ABINGER, C. B., appears to have thought that this was a question of fact for the jury. And the judgment of the CHIEF JUSTICE in that case shows it to be so, as it is a question depending upon the facts and the nature of the trade. Again, in Proctor *v. Sargent, MAULE, J., says (4), "Is there any case, except Horner v. Graves, in which the Court have decided this question solely upon the record?" There are a variety of considerations which could not be stated with particularity in a plea, that enter into and are involved in the question whether it is a reasonable or an unreasonable restriction. V. Whateley, in reply, [referred to Wood v. Benson (5) and Butler The judgment of the COURT was now delivered by The demurrer to the seventh plea, which is pleaded to the first breach, raises two questions: First, whether the latter part of the plea be good, which avers the fourth article and stipulation in the agreement to be an undue, unreasonable, and unlawful restriction of trade; and if not, whether the residue of the plea is an answer to the first breach, or whether the covenant, of which it is a breach, is void in law. (1) 42 R. R. 666 (2 Bing. N. C. 646; 3 Scott, 59). (2) 1 Bing. N. C. 656, 662; 1 Scott, 730. (3) 45 R. R. 522 (6 Ad, & El. 447). (4) 58 R. R. 342 (2 Man. & G. 24). (6) 1 Saund, 66 a, MALLAN r. MAY. [ *664 ] MALLAN MAY. [ *665] [ *666 ] The rule, as laid down by Lord MACCLESFIELD and Lord Chief Justice WILLES (1), is, that total restraints of trade, which the law so much favours, are absolutely bad, and that all restraints, though only partial, if nothing more appear, are presumed to be bad; but if the circumstances are set forth, that presumption may be excluded, and the Court are to judge of those circumstances, and determine whether the contract be valid or not: Mitchell v. Reynolds (2). "Contracts in restraint of trade are, in themselves, if nothing shows them to be reasonable, bad in the eye of the law:" per TINDAL, Ch. J., in Horner v. Graves (3). Therefore, if there be simply a stipulation, though in an instrument under seal, that a trade or profession shall not be carried on in a particular place, without any recital in the deed, and without any averments showing circumstances which rendered such a contract reasonable, the instrument is void. Such are the cases cited in Prugnell v. Close (4), and the case of The Ten Tailors of Exeter v. Clarke (5), and Claygall v. Bachelor (6); Year Book, 2 Hen. V. fo. 5. But if there are circumstances recited in the instrument, (or probably if they appear by averment), it is for the Court to deter mine whether the contract be a fair and reasonable one or not; and the test appears to be, whether it be prejudicial or not to the public interest, for it is on grounds of public policy alone that these contracts are supported or avoided. Contracts for the partial restraint of trade are upheld, not because they are advantageous to the individual with whom the contract is made, and a sacrifice pro tanto of the rights of the community, but because it is for the benefit of the public at large that they should be enforced. Many of these partial restraints on trade are perfectly consistent with public convenience and the general interest, and have been supported; such is the *case of the disposing of a shop in a particular place, with a contract on the part of the vendor not to carry on a trade in the same place. It is in effect the sale of a goodwill, and offers an encouragement to trade, by allowing a party to dispose of all the fruits of his industry: Prugnell v. Close (4), Broad v. Joliffe (7), Jelliott v. Broad (8). And such is the class of cases of much more frequent occurrence, and to which this present case belongs, of a tradesman, manufacturer, or professional (1) Willes, 388, Master &c. of Gun makers v. Fell. (2) 1 P. Wms. 196. (3) 33 R. R. 635 (7 Bing. 744). (5) 2 Show. 350. (6) Owen, 143. (7) Cro. Jac. 596. (8) Noy, 98. man, taking a servant or clerk into his service, with a contract that he will not carry on the same trade or profession within certain limits: Chesman v. Nainby (1). In such a case the public derives an advantage in the unrestrained choice which such a stipulation gives to the employer of able assistants, and the security it affords that the master will not withhold from the servant instruction in the secrets of his trade, and the communication of his own skill and experience, from the fear of his afterwards having a rival in the same business. It is justly observed by Lord WYNFORD, in giving the judgment of the Court in Homer v. Ashford (2), that "it may often happen that individual interest and general convenience render engagements not to carry on trade, or act in a profession, in a particular place, proper; that engagements of this sort between masters and servants are not injurious restraints of trade, but securities necessary for those who are engaged in it; and that the effect of such contracts is to encourage rather than cramp the employment of capital in trade, and the promotion of industry." In the present case, the statements in the deed declared upon show that the defendant was to be instructed in a business requiring skill and intelligence, and upon the principles above laid down, the contract not to exercise the *same business, within certain reasonable limits, was not invalid. The question then comes to this, whether the limits assigned by this covenant are unreasonable. It may be safely laid down, in the language of Chief Justice TINDAL, in Horner v. Graves (3), that "whatever restraint is larger than the necessary protection of the party with whom the contract is made, is unreasonable and void, as being injurious to the interests of the public, on the ground of public policy." Applying this rule, and referring to the analogous authorities, it appears to us that, for such a profession as that of a dentist, the limit of London is not too large. In Davis v. Mason (4), Thetford and ten miles round, in Hayward v. Young (5), twenty miles round a place, was held a reasonable limit in the case of a surgeon; in that of an attorney, London, and 150 miles round, in Bunn v. Guy (6); and in Proctor v. Sargent (7), five miles from Northampton (1) 2 Ld. Ray. 1456; 2 Stra. 739. (5) 2 Chitty, 407. (6) 7 R. R. 560 (4 East, 190). (7) 58 R. R. 342 (2 Man. & G. 20; 2 Scott, N. R. 289). MALLAN v. MAY. [ 668 ] Square, in the county of Middlesex, was held reasonable in the case of a milkman. And it makes no difference in our opinion, that it appears on the face of this record that London contains a million of inhabitants. We doubt, indeed, whether the comparative populousness of particular districts ought to enter into consideration at all; if it did, it would be difficult to exclude others, such as the number of men of the same profession, the habits of the people in that neighbourhood, and other matters of a fluctuating and uncertain character, which would produce great difficulty and embarrassment in determining such a question. We conceive that it would be better to lay down such a limit as, under any circumstances, would be sufficient protection to the interest of the contracting party, and if the limit stipulated for does not exceed that, to pronounce the contract to be valid. We are of opinion, therefore, that the covenant, the breach of which is that first assigned, is valid. We need hardly add, that the latter part of the seventh plea, which is pleaded to that breach, is bad, for the cause assigned for special demurrer. It attempts to leave matter of law, viz. the reasonableness or unreasonableness of the contract, to the jury. This is clearly a question of law, and was decided as such in Davis v. Mason (1), Horner v. Graves (2), Proctor v. Sargent (3), and Chesman v. Nainby (4). The plaintiff, therefore, is entitled to our judgment on the first breach. The question raised by the demurrer to the last plea renders it necessary to consider, whether the covenant on which the second breach is assigned is good in law, upon the principle before laid down. That covenant is, "that the defendant should not, without the plaintiffs' consent, carry on the profession of a surgeon-dentist, &c., in London, or any of the towns or places in England or Scotland, where the plaintiffs, or the defendant on their account, might have been practising before the expiration of the said service." According to the terms of this covenant, the defendant is prohibited from carrying on his business, not merely at such place or places as the plaintiffs might be practising in at the time of the expiration of the service, but at any place where they might have been practising before, though for ever so short a time. This covenant goes much beyond what the protection of any interests of the plaintiffs could (1) 2 R. R. 562 (5 T. R. 118). (3) 58 R. R. 342 (2 Man. & G. 25). (4) 2 Stra. 739; 2 Ld. Ray. 1436. reasonably require, and it puts into their hands the power of preventing the defendant from practising anywhere. We are therefore of opinion, that it is an unreasonable restriction, and that the defendant is entitled to our judgment on the demurrer to the second breach, for the insufficiency of the declaration in that respect. It was contended, that, if the covenant was illegal and void as to this part, it was so altogether. But we think that the stipulation as to not practising in London is valid, and is not affected by the illegality of the other part. That point was decided in Chesman v. Nainby, above cited. Judgment accordingly. MALLAN v. MAY. [ *669 ] THE ATTORNEY-GENERAL v. ROGERS. (11 Meeson & Welsby, 670-675; S. C. 12 L. J. Ex. 395; 2 Dowl. N. S. 1037; 7 Jur. 704.) The Court has authority to, and will, grant a new trial in a penal action, though the verdict be for the defendant, where they are satisfied that the verdict is in contravention of law, whether the error has arisen from the misdirection of the Judge, or from a misapprehension of the law by the jury, or from a desire on their part to take the exposition of the law into their own hands. THIS was an information filed against the defendant, a tobacconist, for penalties for mixing saccharine matter with tobacco in the course of manufacture, and for having in his possession saccharine matter for the purpose of using it in the manufacture of tobacco, contrary to the provisions of the 5 & 6 Vict. c. 93. At the trial before Lord Abinger, C. B., at the Middlesex sittings after last Hilary Term, it appeared that the saccharine matter had been applied in the manufacture of tobacco before the 10th of August, when the new Act came into operation, but the process of manufacture was not complete until after; and the jury found a verdict for the defendant, contrary to the direction of the learned Judge. The Attorney-General, in Easter Term last, obtained a rule, calling upon the defendant to show cause why that verdict should not be set aside and a new trial granted, on the ground that the verdict was contrary to law, and to the direction of the LORD CHIEF BARON. 1843. June 8. 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