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 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 suffcient 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. Cited 2 Wood, 542; 67 Mo., 186, 232. (See S. C., 20 Wall., 31-36.) 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 covenant 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 (76 U. S., XIX., 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 good because there was no actual intent to dea gift out of love and affection, they would be 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 Post-nuptial settlement, when upheld—when not actually bona fide, unless made by one who is -effect of setting aside deed for fraud. 1. A voluntary post-nuptial settlement, if it be reasonable, not disproportionate to the husband's means, taking into view his debts and situation, and clear of any intent, actual or constructive, to de fraud 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 respond 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. embarrassed or who does not leave ample margin in favor of existing creditors. The mere fact of indebtedness existing, is insufficient to overthrow the settlement. Dowell, 31 Mo., 62; Pratt v. Curtis, 6 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. Woodson v. Pool, 19 Mo., 340; Potter v. Mc 9. The reconciliation was an independent agreement, and was in its essential elements the same, and operated the same, as an ante-nuptial settlement. "There is no case in which any settlement of property made previously to, and in consid APPEAL from the Circuit Court of the United eration of marriage, has been set aside on the 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 benefit of wife and child,when good or void as to creditors. See note to Sexton v. Wheaton, 21 U. S. (8 Wheat.), 229. 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. Messrs. S. Knox and Ford Smith, for appellees: The notes and deed of trust from Martin Mey. er to his wife's trustee, being without consider- 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. cept the stipulated sum in full satisfaction 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 prosecute 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, The articles of reconciliation declare that there except in the particular named, were declared is a complete condonation between them. She to be null and void, and each party released the resumes her place as Meyer's wife, is entitled to other from any breach of them that had or support from him, and to dower in his estate. might occur. A complete condonation was also By these articles of reconciliation, every ves- declared by the new arrangement. The hustige of a valuable consideration was withdrawn band and wife 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 the ever, but the notes had been executed purely from love and affection. Two months and a half after this separation, Shelthar v. Gregory, 2 Wend., 422. 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: John Ford Smith, assignee of Martin Meyer, a bankrupt, brought a bill in equity in the District Court for the Eastern District of Missouri, to set aside as fraudulent a deed of trust or mortgage give by the bankrupt in August, 1867, to Edward C. Kehr, to secure two promissory notes of even date with the deed for $2,500 each, payable, respectively, in one and two years from date, which the bankrupt executed to Nicholas Schaeffer, trustee of Clara Meyer, his wife. The district court, on hearing the cause, made a decree in conformity with the prayer of the bill, which was affirmed in the circuit court and is now here for review. The transaction which is sought to be impeached had this origin: In August, 1867, Meyer and his wife agreed to separate, and entered into an agreement for this purpose. Each was allowed to live separate and apart from the other without molestation, and the rights accorded to one in the articles of separation were secured to the other. In order that the wife might have sufficient means for her support, the husband covenanted with a person named that he would pay to him, as trustee for the wife, the sum of $7,000 on the execution of the instrument. In consideration of these and other agreements, the trustee and the wife covenanted with the husband to ac 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. 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 must turn on what occurred afterwards. All the elements of value which entered into the composition of the first agreement ceased to exist when the parties became reconciled. The marital relations were resumed on the basis of mutual forgiveness for past misconduct, and the wife became entitled to support from her husband and to dower in his estate. These rights of the wife had been relinquished in the first contract, and this relinquishment was the only consideration to support it. The withdrawal of the consideration left the notes without any element of value in them, and the execution of the new contract, followed by cohabitation. placed the parties exactly where they would have been if there had been no separation. The notes thus became a voluntary gift, and it can make no difference in their character that they are reserved as a separate estate to the wife. It is not a question in the case whether, as between the parties, they could not be enforced. The question is whether a husband, at the time largely indebted, can make a voluntary donation or even voluntary conveyance to his wife to the prejudice of his creditors. An attempt is made to show that Meyer received from his wife a considerable amount of money obtained 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. In this controversy, therefore, with creditors, the gift must be treated as purely voluntary; a gift being nothing more than the transfer of property without consideration. 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 sustained 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. ducting from this the sum of $7,000 paid, and De 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 void as to existing creditors, that all the creditors, prior and subsequent, share in the fund 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 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. agreed to be paid, to the wife, would leave THE OREGON STEAM NAVIGATION $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. Sup: pose 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 existing, 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 into view his debts and situation, and clear of any intent, actual or constructive, to defraud creditors. See the note to Sexton v. Wheaton, 1 Am. Lead. Cas., 37, 5th ed., where the law on this subject is fully considered. COMPANY, Piff. 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 thereother is not, the court will give effect to the latter, of is void as being in restraint of trade, while the and will not hold the agreement void altogether. [No. 222.] Argued Mar. 10, 1874. Decided May 4, 1874. 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. 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. A contract in restraint of trade to be valid must IN ERROR to the Supreme Court of the Terri- covenant here is a valid one, and should be up tory of Washington. 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 Ap peal, 58 Pa., 51. Tried by this test, it is submitted that the 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 as Waters, 9 How. Pr., 353; Wright v. Ryder, 36 Cal., | consideration. Guerand v. Dandelet, 32 Md., 561; 357; Bremer v. Marshall, 4 Green, Ch., 537; Mitchel S. C..3 Am. Rep., 164; Sainter v. Fergusson, 7 C. B., v. Reynolds, 1 P. Wms., 181; Hitchcock v. Coker, 6716; Hitchcock v. Coker, 6 Ad. & El., 439; Archer v. Ad. & El., 438. 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 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; S. C., 6 Am. Rep., 621. 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"in the City and County of San Francisco, or State Cow., 307; More v. Bonnet, 40 Cal., 251; S. C.. 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; S. C., 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; S. C., 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; S. C., 23 Am. Dec., 409), or within a radius of ten miles of certain place. Cook v. Johnson, 47 Conn., 175; S. C., 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; S. C., 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; S. C., 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; 8 C., 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., 513; S. C., 4 Am. Rep., 513. The court will not inquire into the adequacy of the consideration but only whether there is a legal 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; S. C., 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; S. C., 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; S. C., 34 Am. Rep., 803. As to the section of country which may be lawfully covered, the following contracts have been held valid: not to practice inedicine within twelve miles of a certain place (McClurg's Appeal, 58 Pa. St., 51; Butler v. Burleston, 16 Vt., 176); not to en gage 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; S. C., 12 Am. Rep., 390. Under a contract not to carry on a business within 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. to time and space. Moreover, it is not perceived | waters of two States and parts of one Terriwherein the public could be prejudiced thereby tory. to any appreciable degree. See Wickens v. Evans, 3 Y. & J., 318. If this is true in a case where the restraint would affect the parties in respect to the busi ness of navigation or the carrying trade on the waters described, a fortiori is it true where the restraint affects the party simply as regards the use or employment of a particular instrument or means in that business, leaving him entirely free to carry it on with other like instruments or means. The defendants in error were not restrained by their contract from engaging in the carrying trade on the waters of California, or on the Columbia and its tributaries, but only from employing in that trade the steamboat purchased as aforesaid from the plaintiff in error. Thus, the restriction was not only partial, but very limited in its scope and effect. It was confined to a particular agent or instrumentality, capable, perhaps, of being usefully employed in the said trade, but it did not otherwise interfere with the prosecution of the trade itself. See, the case of Dunlop v. Gregory, 10 N. Y., 241, which is very similar to this. Also, the following authorities: Chappel v. Brockway, 21 Wend., 157; Pierce v. Fuller, 8 Mass., 226; Perkins v. Lyman, 9 Mass., 522; Palmer v. Stebbins, 20 Mass., 188; Leighton v. Wales, 3 Mees. & W., 545; 6 Cal.; 36 Cal. Messrs. B. S. Dennison and Leander Holmes, for defendants in error: Our main proposition is, that the covenant and bond on which this action is brought, are in restraint of trade and commerce, against public policy, and void. Contracts in restraint of trade are of two kinds: 1. Those in general restraint of trade. 2. Those in partial restraint of trade. General restraints are all void. Partial restraints may be good or may not be, according to the circumstances. The rules of law applicable to each may be found in Mitchell v. Reynolds, 1 P. Wms., 181; Homer v. Ashford, 3 Bing., 328; Hayward v. Young, 2 Chit., 407; Stuart v. Nicholson, 3 Bing. (N. C.), 113; Gale v. Reed, 8 East, 83; Ward v. Byrne, 5 Mees. & W., 548; Green v. Price, 13 Mees. & W., 695; Mallan v. May, 11 Mees. & W., 665: Chesman v. Nainby, 2 Str., 739; Hitchcock v. Coker, 6 Ad. & El., 438; Story, Cont., sec. 550; Metc. Cont., 282; Keeler v. Taylor, 53 Pa., 468; Ross v. Sadgbeer, 21 Wend., 167; Chappel v. Brockway, 21 Wend., 156; Dunlop v. Gregory, 10 N. Y.. 244; Nobles v. Bates, 7 Cow., 306; Lange v. Werk, 2 Ohio St., 519; Thomas v. Miles, 3 Ohio St., 274; Grasselli v. Louden, 11 Ohio. St., 349; Crawford v. Wick, 18 Ohio St., 190; Brewer v. Marshall, 4 C. E. Green Ch. (N. J.), 537; Beard v. Dennis, 6 Ind., 200; Taylor v. Blanchard, 95 Mass., 370; Wright v. Ryder, 36 Cal., 342; Hart. & N. H. R. R. Co. v. N. Y. & N. H. R. R. Co., 3 Rob (N.Y.), 411; State v. Hartford, etc., R. R. Co., 29 Conn., 538; Alger v. Thacher, 36 Mass., 51. The restriction imposed upon The New World and her owners is general, within the meaning of the law as laid down in all the adjudged cases, extending as it does to all the Dunlop v. Gregory, 10 N. Y., 241; Nobles v. Bates, 7 Cow., 306; Chappel v. Brockway, 21 Wend., 157; Lawrence v. Kidder, 10 Barb., 641; Taylor v. Blanchard, 95 Mass., 370; Wright v. Ryder, 36 Cal., 342; Homer v. Ashford, 3 Bing., 322; and other English cases there cited. How far a restriction may extend, and what limits will be considered, reasonable or unreasonable, may be illustrated by examination of the following cases, showing different shades of opinion: Horner v. Graves, 7 Bing., 743; Davis v. Mason, 5 T. R., 118; Bunn v. Guy. 4 East, 190; Price v. Green, 16 Mees. & W., 346; Nobles v. Bates, 7 Cow., 306; Gilman v. Dwight, 79 Mass., 356; Duffy v. Shockey, 11 Ind., 70; Whitney v. Slayton, 40 Me., 224; Palmer v. Stebbins, 20 Mass., 188; Pierce v. Woodward, 23 Mass., 206; Clark v. Crosby. 37 Vt., 188; Pierce v. Fuller, 8 Mass., 223; Chappel v. Brockway, 21 Wend., 157; Lawrence v. Kidder, 10 Barb., 653; Wright v. Ryder, 36 Cal., 359. The restriction must be such only as was necessary to protect the party in the "prosecution of his business." Kellogg v. Larkin, 3 Chand. (Wis.), 133; Story, Cont., sec. 553. Mr. Justice Bradley delivered the opinion of the court: This action was brought in a District Court of Washington Territory, to recover $75,000 as stipulated damages for the breach of a certain agreement between the parties. The complaint was demurred to, and the demurrer was sustained and the action dismissed. The plaintiff brought a writ of error to the Supreme Court of the Territory, which affirmed the judgment. This is a writ of error to the Supreme Court, and brings up for consideration simply the sufficiency of the complaint. The principal facts set out in the complaint are the following: it states that, in 1864, the California Steam Navigation Company being engaged in steam and other transportation on the several routes of travel on the rivers, bays and waters of the State of California, sold to the plaintiff, being a Company engaged in the like business on the Columbia River and its branches in Oregon and Washington, the steamer New World, for $75,000, subject to a stipulation, among other things, that the plaintiff should not run or employ, or suffer to be run or employed, the said steamer, upon any of the routes of travel, rivers, bays or waters of the State of California, for the period of ten years from the first day of May, 1864; that on the 18th day of February, 1867, the plaintiff sold the same steamer to certain of the defendants for the sum of $75,000, subject to a stipulation and covenant that the said steamer should not be run or employed 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; and that for a breach of said covenant the defendants, to wit: the vendees of the vessel as principals, and the other defendants as sureties, should pay $75,000 as actual liquidated damages. The complaint further averred that, at the time of the second sale of the steamer, and up to the |