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domicil, on whom copies of writs could have | fer, in the absence of such an averment, that it been served, and that he neither absconded nor could not be truthfully made. It is difficult to absented himself from his usual place of abode, suppose, when he moved his family to Tenin the sense of the statute, nor was his resi- nessee, that he did not communicate with dence unknown; all of which facts were known friends in Missouri who were acquainted with to the parties in interest, including the respond- the true state of his affairs. ents, who either purchased the property at the sale, or derived title from the person who did purchase.

By way of excuse for his want of diligence in his own affairs, the complainant says that the state of feeling was such against him in Nodaway County, on account of the part he took in the rebellion, that he could not, with any sort of safety, return to the County, and that in 1863 he removed his family to Tennessee, where he has since continued to reside. He also says, in continuation of this excuse, that being absent from the State, though a resident of the County, when the proceedings were instituted to deprive him of his rights, and no notice of the same having been given to any member of his family, he had not a day in court given him. and was in ignorance of the same until recently; and that as soon as practicable after ascertaining that said illegal proceedings were had, he took steps to assert his rights. The object of the bill is to set aside the sale, and to restore McQuiddy to the possession of the property. The only charge of fraud, in connection with the transaction disclosed in the bill, relates to the falsity of the affidavit on which the proceedings were based. The circuit court sustained a demurrer to the bill, and we think correctly.

Besides, if the proceedings against him were irregular, why did he not seek his remedy under the statutes of Missouri, which concede to the party against whom judgment has been rendered on constructive notice only, the right to come in at any time within three years and file his petition for review? 2 R. S. of Missouri of 1855, p. 1280, secs. 13-15. If this had been done, and the state court had permitted the cases to be re-opened for the reasons set forth in the bill, his remedy would have been complete, as the bill charges the purchasers at the sale with notice of all irregularities. It cannot be said that there was no opportunity of doing this, for the earliest judgment was in May, 1862, and both the others in November, 1863, and the war was substantially over in May, 1865. There is no averment of the want of this opportunity, nor is the absence of it aided by the general allegation, without specification of time or circumstance, that he could not with safety return to Nodaway County on account of existing prejudices. This might be true, and yet the opening of the judgments obtained by an attorney, as his personal presence was not required for that *purpose. It [*19 were easy enough before the three years expired to communicate with St. Louis by letter, or even to go there, and it is very certain that he could not have been under any apprehension while there of being disturbed in the assertion of his legal rights.

But if the proceedings, instead of being irregular and voidable, are null and void, as they are characterized in the bill, the remedy at law is complete, for there is in such a condition of things nothing in the way of the successful maintenance of an action of ejectment, which will result not only in the restoration of the lands, but also their rents and profits.

In the view we take of the case we are not required to wade through the various statutes of Missouri, and the decisions of the courts of the State, in order to determine whether or not the proceedings in question are valid. The complainant is not, in our opinion, in a position to invoke the aid of a court of equity to decide that question. The bill presents the case of a man who chose to neglect his private interests for the purpose of devoting his time to the destruction of the government, complaining that his creditors enforced the collection of their debts on a wrong theory of his status, in con- Apart from all this, the maxim that he who sequence of entering the service of the enemy. seeks equity must do equity in the transaction There is no pretense that the debts were not in respect to which relief is sought, has not been meritorious, or that the judgments were entered observed by this complainant. While admitting for a larger amount than he owed. The real his indebtedness, and that it has existed for ten ground of complaint is that he was not an ab- years or more, he does not make a tender in sent or an absconding debtor, or a person whose court of what is justly due, although he is askresidence was unknown, and was not, therefore, ing the court to set aside the proceedings by 18*] subject to the proceedings which were which this indebtedness was satisfied, on the instituted against him. Whether this be so or ground of their absolute nullity. The willingnot, it is easy enough to see in the anomalous ness to pay what is found to be due on the adcondition of affairs existing at the time in Mis-justment of the accounts for rents and profits is souri, that creditors might honestly suppose not the sort of offer required of a person in the that an individual leaving his State to destroy situation of this complainant. the government under which his rights of Moreover, there has been an utter lack of perproperty were acquired, did not intend to re-sonal diligence, which is required in such a case turn to it, and proceed to collect their debts as this in order to bring into activity the powers under that supposition. The inquiry is whether of a court of equity. Equity always refuses to a party acting in this way has stated such a interfere where there has been gross laches in case as entitles him to equitable relief, because the prosecution of rights. There is no artificial his creditors, who ought to have been provided rule on such a subject, but each case as it arises for before he left, mistook the condition he oc- must be determined by its own particular circupied, and treated him as a person who had cumstances. These proceedings were begun permanently abandoned in his home. early in the war, and yet no move is made to disturb them until July, 1871, more than six vears after hostilities ceased. Why this delay? The complainant says he was in ignorance of

There is no averment that he did not have actual notice of the proceedings against him, in time to protect his rights. And it is fair to in

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them until recently, and that as soon as he ascertained them he took steps to assert his rights. Such a general allegation will not suffice to provoke the interposition of a court of equity. It will not do to remain willfully ignorant of a thing readily ascertainable. There has been 20*] *free and uninterrupted communication between Tennessee and Missouri since the war closed, and the courts everywhere accessible for the prosecution of any cause of action. Besides, in the very nature of things, the complainant must have known soon after it occurred that an improved farm, once occupied by him, was in the possession of adverse claimants. This was notice sufficient to put him on inquiry, and this inquiry would have resulted in ascertaining all the facts stated in the bill. There is no reason given for the delay, nor any facts and circumstances on which any satisfactory excuse can be predicated.

Here, then, is the case of a party engaging in the rebellion without provision for his debts, to which there was no defense, asking a court of equity, after the lapse of many years without sufficient excuse for the delay, to interfere in his behalf because his creditors adopted the wrong methods for the enforcement of their claims against him. And this, too, without any specific charge of fraud, except in the matter of the affidavits on which the proceedings were founded.

Such a charge, under the circumstances, is too weak and unsatisfactory to relieve the complainant from the consequences of his own folly. In any aspect of the case we think the demurrer was properly sustained, and the decree of the Circuit Court dismissing the bill is, therefore, affirmed.

or constructive intent at the time to hinder, delay and defraud creditors.

2. If a valuable consideration is given, the settlement must stand, unless tainted by actual fraud.

3. An agreement to contract no debts on a husband's account, to release dower, or a cov-. enant of indemnity by a trustee, constitute, any one of them, a valuable consideration, and will take a settlement out of the Statute of Validity. Worrall v. Jacob, 3 Meriv., 268; Stephens v. Olive, 2 Bro. Ch., 75; Clancy, Rights of Married Women, 338; Compton v. Collinson, 2 Bro. Ch., 377; Hale v. Plummer, 6 Ind., 123; Wiley v. Gray, 36 Miss., 510; Harvey v. Alexander, 1 Rand., 219; Bullard v. Briggs, 24 Mass., 536; Harrison v. Carroll, 11 Leigh, 484; Hargroves v. Mearary, 2 Hill, Ch., 226; Perry, Trust., sec. 673; Hill, Trust., 4th Am. ed., p. 670; Schouler, Dom. Rel., ch. 16, p. 276; Prescott v. Hubbell, cited in Riley, ch. 136; Hoot v. Sorrell, 11 Ala., 387; Powell v. Powell, 9 Humph., 477; Dillinger's Appeal, 35 Pa., 358; Tyler, Inf. & Cov., pp. 473, 478; Deubell v. Fisher, R. M. Charl. (Ga.), 36; Peachy, Marr. Sett., 238; Atherlay, Marr. Sett.; Roper, Hus. & W.

4. Actual fraud in this case has not been proven, nor has it been claimed.

5. A conditional condonation is valid, and is favored by a court of equity.

Walker v. Walker, 9 Wall., 752, 19 L. ed., 818; Wilson v. Mushett, 3 B. & Ad., 743; Webster v. Webster, 1 Smale & G., 501.

6. If the settlement was valid when made, it could not become bad by a matter ex post facto. Rob. Fraud. Conv., 333; Stone v. Grubham, 2 Bulst., 225; Griffin v. Stanhope, Cro. Jac., 455. 7. Even had the notes and deed of trust been a gift out of love and affection, they would be

31*] *EDWARD C. KEHR, Clara Meyer, and good because there was no actual intent to de

Nicholas Schaeffer, Appts.,

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fraud, nor any constructive intent, for the reason that the record fails to show, that on August 3, 1867, or October 18, 1867, Meyer's condition was such as to have made it improper for him to settle $5,000 on his wife.

8. A post-nuptial settlement, even when made merely "out of love and affection," is good if actually bona fide, unless made by one who is embarrassed or who does not leave ample mar

1. A voluntary post-nuptial settlement, if it begin in favor of existing creditors. The mere fact reasonable, not disproportionate to the husband's of indebtedness existing, is insufficient to overmeans, taking into view his debts and situation, and clear of any intent, actual or constructive, to throw the settlement. defraud creditors, will be upheld.

2. It will be held to be in bad faith towards existing creditors, if it is out of all proportion to the means of the husband, considering his state and condition, and seriously impairs his ability to re spond to the demands of his creditors.

3. Where a deed is set aside as void as to existing creditors, all the creditors, prior and subsequent, share in the fund pro rata.

[No. 305.]

Argued Apr. 22, 23, 1874. Decided May 4, 1874.

PPEAL from the Circuit Court of the United A States for the Eastern District of Missouri.

The case is stated by the court. Messrs. M. Blair, F. A. Dick, Nathaniel Myers and A. J. P. Garesche, for appellants: 1. To invalidate a post-nuptial settlement, it must appear that it was made with the actual

NOTE.-Settlements or conveyances for bonefit of wife and child, when good or void as to creditorssee note, 5 L. ed. U. S. 603.

Priority as to proceeds of creditors' bills-see note, 17 L. R. A. 345.

Woodson v. Pool, 19 Mo., 340; Potter v. McDowell, 31 Mo., 62; Pratt v. Curtis, Bk. Reg., 139; Salmonn v. Bennett, 1 Conn., 525; Lush v. Wilkinson, 5 Ves., 384; Duhme v. Young, 3 Bush (Ky.), 350; Lane v. Kingsberry, 11 Mo. 402.

9. The reconciliation was an independent agreement, and was in its essential elements the same, and operated the same, as an ante-nuptial settlement.

of property made previously to, and in consid"There is no case in which any settlement oration of marriage, has been set aside on the ground of the insolvency of the husband, or as fraudulent against his creditors in a subsequent bankruptcy."

Frazer v. Thompson, 1 Giff., 65; Campion v. Cotton, 17 Ves., 270; Tunno v. Trezevant, 2 Des., 270.

lees:

Messrs. S. Knox and Ford Smith, for appelThe notes and deed of trust from Martin

Meyer to his wife's trustee, being without con- | to accept the stipulated sum in full satisfaction sideration, were void as to existing creditors. Sexton v. Wheaton, 8 Wheat., 243.

The only modification to it that can be found is, that if the conveyance was of but an inconsiderable portion of the grantors' estate, and did not affect his creditors nor impair the grantor's ability to respond to their demands, it would be upheld.

In the note to Sexton v. Wheaton, 1 Am. Lead. Cas., 37, the law is very fully laid down as contended for by respondent in this case. This is the rule in Missouri. Potter v. McDowell, 31 Mo., 72.

The notes from Meyer to his wife were purely voluntary. There was no valuable consideration for them whatever. By the articles of separation, they were declared to be for her future maintenance and in lieu of dower.

Two months and a half after this separation,
Meyer and his wife are again cohabiting.
This reconciliation annulled any provision
made for her separate maintenance.

of any claim for maintenance or support, and also for any claim for alimony or dower in case of the husband's death. The trustee also covenanted to save the husband harmless from any debts the wife might contract on his account. No fault was imputed by one to the other, but each was left at liberty, if so disposed, to prose

cute an action for divorce. Two thousand dollars of the seven was paid in money to the trustee, and the balance was secured to be paid by the deed of trust which is the subject-matter of this controversy. The parties separated, but the unhappy differences which compelled their separation, did not prevent a speedy reconciliation, for within a period of two and a half months they became reconciled, and, with the trustee, entered into articles of reconciliation, rescinding the whole of the previous agreement except in the matter of the separate estate created by it; agreed to forget all past differences and live together as husband and wife, during which time the husband was not to pay any interest on the notes. The covenants in the first articles, except in the particular named, were declared to be null and void, and each party released the other from any breach of them that had or might occur. A complete condonation was also declared by By these articles of reconciliation, every ves. the new arrangement. The husband and wife tige of a valuable consideration was withdrawn lived together for some four years, from these notes. A new contract was made, when the husband left the country, and soon making them purely voluntary. The contract after this he was declared a bankrupt. Pendstands as if there had been no separation what-ing this controversy, the property on which ever, but the notes had been executed purely the notes to Mrs. Meyer were secured was, with the assent of the parties litigant, sold by the order of the court, and the right reserved to the parties to proceed against the fund. The question for decision is, whether Mrs. Meyer shall have these notes paid to her out of the proceeds of this property, to the exclusion of the creditors of her husband.

Shelthar v. Gregory, 2 Wend., 422. The articles of reconciliation declare that there is a complete condonation between them. She resumes her place as Meyer's wife, is entitled to support from him, and to dower in his

estate.

from love and affection.

The conduct of the parties; their separation and speedy reconciliation; the fact that, during the four years of their cohabitation, the notes were kept in the possession of the wife and allowed to become past due with no demand of payment, point strongly to actual as well as constructive fraud.

Mr. Justice Davis delivered the opinion of

the court:

It is unnecessary to discuss the question whether the settlement made, in view of actual separation, could be upheld or not in the condition of the husband's affairs, because this case John Ford Smith, assignee of Martin Meyer, must turn on what occurred afterwards. All a bankrupt, brought a bill in equity in the Dis- the elements of value which entered into the trict Court for the Eastern District of Missouri, composition of the first agreement ceased to exto set aside as fraudulent a deed of trust or ist when the parties became reconciled. The mortgage given by the bankrupt in August, marital relations were resumed on the basis of 1867, to Edward C. Kehr, to secure two prom- mutual forgiveness for past misconduct, and the issory notes of even date with the deed for *wife became entitled to support from her [*34 $2,500 each, payable, respectively, in one and husband and to dower in his estate. These two years from date, which the bankrupt exe- rights of the wife had been relinquished in the cuted to Nicholas Schaeffer, trustee of Clara first contract, and this relinquishment was the Meyer, his wife. The district court, on hearing only consideration to support it. The withdrawthe cause, made a decree in conformity with the al of the consideration left the notes without prayer of the bill, which was affirmed in the cir- any element of value in them, and the execution cuit court and is now here for review. The of the new contract, followed by cohabitation, transaction which is sought to be impeached had placed the parties exactly where they would this origin: In August, 1867, Meyer and his have been if there had been no separation. The wife agreed to separate, and entered into an notes thus became a voluntary gift, and it can agreement for this purpose. Each was allowed make no difference in their character that they to live separate and apart from the other with are reserved as a separate estate to the wife. It out molestation, and the rights accorded to one is not a question in the case whether, as bein the articles of separation were secured to the tween the parties, they could not be enforced. other. In order that the wife might have suffi- The question is whether a husband, at the time cient means for her support, the husband cove- largely indebted, can make a voluntary donananted with a person named that he would pay tion or even voluntary conveyance to his wife co him, as trustee for the wife, the sum of $7,000 to the prejudice of his creditors. An attempt on the execution of the instrument. In consid- is made to show that Meyer received from his eration of these and other agreements, the trus-wife a considerable amount of money obtained tee and the wife covenanted with the husband by her from her first husband's estate, and that

this formed part of the consideration of the settlement when they separated; but there is no evidence of any value to prove such a state of things. Besides, the articles of separation decide this point against the wife, as no notice is taken of it, and it is hardly possible, if the fact were as claimed, that on such an occasion it would not have been mentioned.

Testing this settlement by this rule, it must be taken to be in bad faith towards existing creditors, as, clearly, it was out of all proportion to the means of the husband, considering his state and condition, and seriously impairs his ability to respond to the demands of his creditors.

It is well settled, where a deed is set aside as In this controversy, therefore, with creditors, void as to existing creditors, that all the credthe gift must be treated as purely voluntary; aitors, prior and subsequent, share in the fund gift being nothing more than the transfer of property without consideration.

pro rata. Magawley's Trust, 5 De Gex & S.. 1; Richardson v. Smallwood, Jacob, 552-558; Savage v. Murphy, 34 N. Y., 508; Iley v. Niswanger, Harp. Eq., 295; Robinson v. Stewart, 10 N. Y., 189; Thompson v. Dougherty, 12 Serg. & R., 448, 455, 458; Hoke v. Henderson, 3 Dev., 12-14; Kissam v. Edmundson, 1 Ired. Eq., 180; Sexton v. Wheaton, 1 Am. L. Cas., 45; Norton v. Norton, 5 Cush., 529; O'Daniel v. Crawford, 4 Dev., 197-204; Reade v. Livingston, 3 Johns. Ch., 481-499; Townshend v. Windham, 2 Ves., 10; Jenkyn v. Vaughan, 3 Drew., 419–424.

We could not profitably add anything to what has been so well said by the district judge in his opinion in this case on the subject of the | indebtedness and property of Meyer at the time of the settlement upon his wife. 2 Dill. C. C., 50. On a careful consideration of the whole evidence we are satisfied that the value of the property was not materially different from the estimate he put upon it. If he erred at all in this estimate it was within a very narrow limit. The homestead on which the notes were secured was the only piece of real estate of any consequence owned by Meyer, and witnesses differed as to its value, but the opinion of one was sus35*] tained by what it brought at the sale, which was the criterion of value adopted by the district court. In this he may have been mistaken, but if so, the mistake was within the limits of $2,000, which the circuit court thought was about the worth of the property. Outside of the homestead, the assets of Meyer were uncertain, but they did not exceed, if they equalled, the estate of the district court. The conclusion reached by that court, after going into particulars, was that the estate of Meyer could not have exceeded the sum of $16,132. Deducting from this the sum of $7,000 THE OREGON STEAM NAVIGATION_COMpaid, and agreed to be paid, to the wife, would leave $9,132 to meet debts confessedly due, amounting to $9,306.

Surely the voluntary provision for the wife, in such a condition of things, is not sustainable against existing creditors. Nor can it be supported on the theory that the whole estate was worth a few thousand dollars more. Suppose it was, there would still be that extent of embarrassment, which would have a direct tendency to impair the rights of creditors. In such a case a presumption of constructive fraud is created, no matter what the motive which prompted the settlement. Meyer was not only largely indebted for a person in his situation, but it is easy to see it would have been close work for his creditors to have made their debts, if they had tried to enforce their collection by judicial process, a surer way of ascertaining the real worth of the property than by the opinions of different persons, as experience has proved that this kind of testimony is often unreliable on such a subject. The ancient rule, that a voluntary post-nuptial settlement can be avoided, if there was some indebtedness exist ing, has been relaxed, and the rule generally adopted in this country at the present time, will uphold it, if it be reasonable, not disproportionate to the husband's means, taking intc view his debts and situation, and clear of any tent, actual or constructive, to defraud cred

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See the note to Sexton v. Wheaton, I am. Lead. Cas.. 37, 5th ed., where the law on this subject is fuily considered.

We have considered the contract in this case as if it were executed, because no point is made by the respondents that it is executory, and the case has been argued by both sides on the theory that the law applicable to an executed contract of this sort applied to the one in controversy. It may well be doubted whether in any case a mere promise by the husband, without consideration, to pay money to the wife at a future time, can be enforced against the claims of creditors.

The decree of the Circuit Court is affirmed.

PANY, Plff. in Err.,

v.

HENRY WINSOR et al.

(See S. C., 20 Wall., 64-72.)

Agreement in restraint of trade-when legal— agreement valid in part.

1. An agreement in general restraint of trade is illegal and void; but an agreement which operates merely in partial restraint of trade is good, provided it is not unreasonable, and there is a consideration to support it.

2. An agreement that a steamer should not be used in the waters of a State for a fixed period, held legal.

3. Agreements in restraint of trade, whether under seal or not, are divisible. Where one part thereof is void as being in restraint of trade, while the other is not, the court will give effect to the latter, and will not hold the agreement void altogether. [No. 222.]

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NOTE.-Contracts in restraint of trade. Whether a contract is in restraint of trade or not is a question of law for the court and not a question of fact for the jury. Kellogg v. Larkin, 3 Chand., 133; Mallan v. May, 11 M. & W., 653; Horner v. Graves, 7 Bing., 743.

The reasonableness of the restriction is a question for the court. Linn v. Sigsbee, 67 Ill., 81.

A contract in restraint of trade to be valid must have a good consideration, the restraint must be reasonable and limited. Holmes v. Martin, 10 Ga., 503; Dunlop v. Gregory, 10 N. Y., 241; Lang v. Werk, 2 Ohio St., 520; Thomas v. Mills, 3 Ohio St., 275: Chappel v. Brockway, 21 Wend., 157; Holbrook v. Waters, 9 How. Pr., 353; Wright v. Ryder,

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IN ERROR to the Supreme Court of the Ter- covenant here is a valid one, and should be upritory of Washington. held.

The case is stated by the court.

Mr. Geo. H. Williams, for plaintiff in

error.

This case turns upon the single question, whether the covenant, entered into by the defendants in error with the plaintiff in error, whereby the former agreed "not to run or employ, or suffer to run or be employed, the said steamboat New World upon any of the routes of travel, or the rivers, bays or waters of the State of California, or the Columbia River and its tributaries, for the period of ten years from the first day of May, 1867," etc., is valid.

The objection urged against the validity of the covenant is, that it is a contract in restraint of trade and, as such, contrary to public policy. The principle is admitted to be well established in our jurisprudence that a contract in general restraint of trade is against public policy and void. But, on the other hand, it is well established that there may be, upon a good consideration and where reasonable ground exists for the restriction, a partial restraint of trade, and that an arrangement for such purpose is sustainable.

See Lange v. Werk, 2 Ohio St., 519; Guerand v. Dandelet, 32 Md., 562; McClurg's Appeal, 58 Pa., 51.

Tried by this test, it is submitted that the 36 Cal., 357; Bremer v. Marshall, 4 Green, Ch., 537; Mitchel v. Reynolds, 1 P. Wms., 181; Hitchcock v. Coker, 6 Ad. & El., 438.

A contract not to carry on a certain business in State or country is too unlimited and is void. Taylor v. Blanchard, 13 Allen, 370; Noble v. Bates, 7 Cow., 307; More v. Bonnet, 40 Cal., 251, 6 Am. Rep., 621; Chappel v. Brockway, 21 Wend., 157; Pike v. Thomas, 4 Bibb., 486, 7 Am. Dec., 741.

Contract in restraint of trade, made on good consideration and not extending beyond the obligee's sphere of actual business, is valid. Palmer v. Stebbins, 3 Pick., 188, 15 Am. Dec., 204.

So is one applying to a particular place or section of the country and leaving the major part open for the business. Pike v. Thomas, 4 Bibb, 489, 7 Am. Dec., 741.

Contract not to carry on a trade in a particular town or county is valid (Grundy v. Edwards, 7 J. J. Marsh., 368, 23 Am. Dec., 409), or within a radius of ten miles of certain place. Cook v. Johnson, 47 Conn., 175, 36 Am. Rep., 64.

A bond in restraint of trade is void if it excludes the obligor from engaging in the trade of iron founder everywhere, and for all time. Alger v. Thatcher, 19 Pick., 51, 31 Am. Dec., 119; Perkins v. Clay, 54 N. H., 519; Whitney v. Slayton, 40 Me., 230; Long v. Towl, 42 Mo., 549.

The duration of the restraint in point of time, may be indefinite, if in other respects it is partial and reasonable, consideration being had to the nature of the business and the condition of the country. Bowser v. Bliss, 7 Blackf., 344, 43 Am. Dec., 93; Cook v. Johnson, 47 Conn., 178; Burr v. Grey, 4 East, 190; Chesman v. Nainby, 2 Str., 739; S. C. Raym., 1456; Hastings v. Whitley, 2 Exch., 611; Wilkins v. Evans, 3 Y. & Jer., 318; Pierce v. Woodwald, 6 Pick., 206.

Contracts in restraint of trade where no consideration is shown are bad. Pierce v. Fuller, 8 Mass., 223, 5 Am. Dec., 102.

A contract not to aid, assist or encourage, in any manner, competition against purchasers of patents of twist drills and collets was held valid in a suit to restrain defendant from violating it by making the articles in another State and selling them in same market; that as the business was not local, the restraint was no greater than it required. Morse, Twist Drill & Mach. Co. v. Morse, 103 Mass., 73, 4 Am. Rep. 513.

The court will not inquire into the adequacy of the consideration but only whether there is a legal consideration. Guerand v. Dandelet, 32 Md., 561; 8. C., 3 Am. Rep., 164; Sainter v. Fergusson, 7 C.

The restraint imposed in this case was partial only.

This sufficiently appears by the terms of the covenant, and from the fact alleged in the complaint and admitted by the demurrer. At the time the contract was made, four of the defendants, viz.: Winsor, the two Crosbys and Hale, were engaged in the business of navigation on the waters of Puget Sound in the Territory of Washington; the plaintiff in error was, at the same time, engaged in a similar business on the Columbia River and its tributaries in Oregon, and in said Territory; while a third party, the California Steam Navigation Company, was at the same time engaged, with numerous steam and other vessels, in similar business on the waters of the State of California. These facts are shown by the pleadings mentioned. Here, then, were three separate fields of the same business, each actually occupied by some one of the three parties referred to.

Now, it is obvious that any restraint which would prevent one of those parties, within a stated period, from extending or removing his business into either or both of the fields in which the others were engaged, even though these comprised the rest of the inland navigable waters on that coast, would be nothing more than a partial restriction; and that, too, both B., 716; Hitchcock v. Coker, 6 Ad. & El., 439; Archer v. March, 6 Ab. & El., 966; Leighton v. Wales, 3 M. & W., 551; Pilkington v. Scott, 15 M. & W., 657.

An agreement never to engage in a certain trade "in the City and County of San Francisco, or State of California," is in total restraint of trade and, therefore, void as to the whole State and not being severable is void entirely. More v. Bonnet, 40 Cal., 251, 6 Am. Rep., 621.

One may sell a secret of a business and restrain himself generally from using or divulging it. Bryson v. Whitehead, 1 Sim. & Stu., 74; Jarvis v. Peck, 10 Paige, 118; Hardy v. Seeley, 47 Barb., 428; Alcock v. Giberton, 5 Duer, 76; Vickery v. Welch, 19 Pick., 523.

Agreement not to engage for eight years in the manufacture of a certain yeast powder nor in any branch of the yeast business, is unlimited and void. Callahan v. Donnolly, 45 Cal., 152, 13 Am. Rep., 172.

Agreement on sale of business not to keep the tools of that business nor engage in it after the date of sale, construed to apply to such limits about the place where the business was located as the business would naturally and reasonably_embrace. Hubbard v. Miller, 27 Mich., 15, 15 Am. Rep., 153.

Covenant by corporation with a citizen of another State not to run a steamboat or allow its machinery to be used on any other boat in any of the waters of certain States, is void as against public policy. Oregon St. Nav. Co. v. Hale, 1 Wash., 283, 34 Am. Rep. 803.

As to the section of country which may be law. fully covered, the following contracts have been held valid: not to practice medicine within twelve miles of a certain place (McClurg's Appeal, 58 Pa. St. 51; Butler v. Burleston, 16 Vt., 176); not to engage in business of iron casting within sixty miles of a certain place for the term of ten years (Whitney v. Slayton, 40 Me., 224); not to set up business of apothecary within twenty miles of A. (Hayward v. Young, 2 Chit., 407); not to practice as a physician in a particular town and its vicinity. Warfield v. Booth, 33 Md. 63; Hoyt v. Holly, 39 Conn., 326, 12 Am. Rep., 390.

Under a contract not to carry on a business with. in a certain distance, the distance is to be measured in a straight line. Moufflet v. Cole, 7 L. R. Exch., 70; Aff'd, 21 W. R., 175; Durginan v. Walker, 33 L. T. R., 256.

Validity of contracts of sale in restraint of trade without limitation of place-see note, 22 L. R. A. 673.

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