2d. Actions upon covenants of warranty, within ten years after a decision against the title of the covenantor. Actions upon covenants of seisin, within ten years after the cause of action shall accrue.

3d. Actions for relief not otherwise provided for, within five years. 1. Actions upon contracts, obligations, or liabilities, express or implied, except those mentioned in the last section, and except upon judgments, and except where a different time is limited in this act. 2. Actions upon liabilities created by statute, other than a penalty or forfeiture. 3. Actions for trespass on real estate. 4. An action for taking, detaining, or injuring any personal property, including actions for the recovery of specific personal property. 5. An action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated. 6. Actions for relief on the ground of fraud, but the cause of action accrues from the discovery of the fraud.

Within three years. 1st. Actions against sheriff or coroner, upon liabilities incurred by doing an act in his official capacity, or by the omission of an official duty, including the non-payment of money upon an execution. But this does not apply to an action for an escape. 2d. Actions upon a statute for a penalty of forfeiture, where the action is given to the party aggrieved, or qui tam, except where the statute imposing it prescribes a different limitation.

Within two years. 1st. Actions for libel, slander, assault, battery, or false imprisonment. 2d. Action for penalties of forfeiture to the State. Within one year. Actions against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.

Actions, where there are reciprocal demands between the parties, accrue from the date of the last item on the adverse side.

Every one can see, from this brief abstract, how radical is the change from the old common law practice, to that of this new code. The reforms have been made with too much haste, and with too little consideration, and the consequence will be, that the construction of the whole code must be settled by a new series of judicial decisions; and, in all probability, so many objections will be found to it in practice, that it will be repealed at the very next session of the Legislature. As it is, we must abide by it for two years, and time will test its merits and defects.

Art. VII.-RESTRAINTS UPON TRADE.

CONTRACTS AND AGREEMENTS WITH RESPECT TO RESTRAINTS UPON TRADE, WHICH ARE ENFORCED BY LAW.

THE extent of territory over which the commerce of the United States is extending, and the variety of circumstances and number of persons connected with it, render it important that the principles of law which affect the several classes of cases should be reduced to general rules, and simplified as often as the complexity of their natures make it necessary. In our intercourse with merchants and traders, we have found that the law, with respect to restraints of trade, is but imperfectly understood; and that contracts are often entered into of this nature which are wholly invalid, and upon which the courts of the country could authorize no recovery. We know of no essay which, for

the benefit of the mercantile community, has deduced the law on this species of engagements to its elements, and therefore undertake the task.

The right to exercise a trade, or to pursue a particular employment, is a liberty, in the free enjoyment of which, both the public and the individual is concerned. At an early period in the history of English jurisprudence, the 29th section of the great charter of Henry the Third was held to embrace this right. It declares that "No freeman shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs," &c. This construction erected a barrier against the grants and charters of the crown, which had previously restrained, by monopolies, the trade and industry of the kingdom; and may be said to have become one of the principles of freedom upon which the United States government was founded. Against voluntary restraints, or those arising from the agreement of parties, the court also, at an early period, interposed its judgment. In the second year of Henry V., a case of this nature was tried before Hall, Justice, which lays at the foundation of the principle established, in connection with our subject, and exhibits, somewhat rudely, the decision of the judge. A poor weaver, having sustained a heavy loss, began, in great despair, to denounce his employment, and to declare that he would never again follow it. One, for some trifling consideration, procured his bond, not to be engaged again as a weaver. Afterwards, the necessities of his family forcing him to a breach of this bond, the action was brought upon the penalty. On the facts being disclosed, the judge, who seems to have been a firm and just, but impetuous man, is reported to have flown into a violent passion, and given this very emphatic opinion, in Norman French :-"In my opinion there should have been a demurrer, because the obligation is void, and the condition is against the common law; and by God, if the plaintiff were here, I would imprison him until he paid a fine to the king."

A vast number of cases have been since decided, in the English and American courts, sustaining the views here advanced; and though much difficulty has arisen, from the peculiar circumstances of each particular transaction, the principles governing these judgments may be ascertained from considering the following positions:--

First. Involuntary restraints, or those which are against the consent of the citizen, are such as are enforced by act of the government, the customs of a particular community, or the ordinances of a municipal corporation. 1st. All charters of government to trade generally exclusive of others or granting to particular persons the sole power of exercising a known trade, are against the common law, contrary to Magna Charta, and therefore void. 8 Coke's Reports, 121. 11 Coke's Reports, 84.

But such a grant, authorizing the sole use of a new invented art, is good, because furnishing a just encouragement to genius and industry. It has been considered, however, that after the period of fourteen years, such art is become known, and has spread among the people; and this is the origin of the statute of the 21 of James, which secures to the inventor of a new art, a patent. Second. The restraints by custom, which have been adjudged good, are such as are for the benefit of some particular person, who carries on the trade for the benefit of the community; or for the advantage of a number of persons, who are supposed to use a trade in order to exclude foreigners. This last privilege is only now permitted in London, having been, by a statute of William the Fourth, abolished in other parts of England. So a restraint, arising under a custom, may be good, which confines a trade in a particular

place. 8 Coke's R., 125. Cro. Eliz., 803. 1 Leon, 142. 2 Bulstrode, 195. Dyer, 279. 11 Coke's R., 52.

Third. Restraints by ordinances are void, if tending to restrict trade in general; or to exclude foreigners, where no precedent custom exists. Moor, 576. Inst., 47. 1 Bulstrode, 11. But such restraints are good, if made to restrain trade, for the better government and regulation of it, if for common benefit, and to avoid public inconveniences, nuisances, &c.; or for the advantage of trade, and the improvement of the commodity. Sidufin, 284. Ld. Raymond, 288. 2 Keble, 27, 873. 5 Coke's R. 62. Wannel vs. Chamber, of London, 1 Strange, 675. King vs. Harrison, 3 Burrow, 1322. Pierce vs. Bartrum, Cowper, 269. Mayor of Mobile vs. Yuile, 3 Alabama R. 137.

2d. Voluntary restraints are such as arise from the act of the party, upon agreement, and are either general or special.

First. General restraints are wholly void; and it is immaterial whether the stipulation be by bond, covenant, or promise, with or without consideration, or of the party's own trade, or not. Cro. Jac., 596. 2 Bulstrode, 136. Cov. Eliz., 872. Moor, 115. 2 Leon, 210. 3 Leon, 217. Murch, 191. Owen, 143. Noble vs. Bates, 7 Cowen, 307. Mitchell vs. Reynolds, 1 P. Williams, 181. The reasons given for prohibitions of this nature, in respect to general restraints, are, that such contracts produce monopolies, and are against public good, deprives a party of his means of living, enables employers to lay onerous services upon their servants, &c.

Second. Restraints of a particular kind may be valid, or not, as they are partial, as they are reasonable, and as they are sustained by a consideration. 1st. The law will not enforce a contract which obliges a party not to do what his own interest, and the wellfare of the public, demands he should perform; and whether an obligation, restraining a particular employment, does those things or not, seems to be one of the tests, as to whether the restriction is so partial as to be enforced. The exercise of one's talents, industry, or capital, is a public, as well as private right; for on it may not only depend the wellbeing of the entire community, but the support of the individual. An agreement, therefore, not to employ these in any useful undertaking in the country, would be void, as contravening these rights. In cases in which restraints of a partial nature are authorized, it must be the interest of the party, and to the general convenience, that a trade be not carried on, or a profession followed. Chesman vs. Nainby. Clark vs. Comer. Cases of the time of Hardwich, 53. Davis vs. Mason, 5 T. R. 118. Bunn vs. Guy, 4 East., 190. Bozon vs. Farlow, Merivale, 472. Leighton vs. Wales, 3 Meeson & Wilsby, 545. Gale vs. Reed, 8 East., 79. Ward vs. Byrne, 5 M. & W., 561. 7 Cowen, 307. Pyke vs. Thomas, 4 Bibb, 486. Stoams vs. Barrett, 1 Pick., 450. Palmer vs. Stebbins, 3 Pick., 188. Peirce vs. Fuller, 8 Mass., 223. Perkins vs. Lyman, 9 Mass., 522. Peirce vs. Woodward, 6 Pick., 206. 10 Modern, 27, 86, 130.

2d. The reasonableness of such restraints are judged of by this test. Does the restraint only afford a fair protection as to the interests of the party in favor of whom it is given? and is it not so large as to interfere with the interests of the public? Per. C. J. Tindall, in Homer vs. Graves, 7 Bing. 743. A restraint to greater extent than the necessary protection of the party, or which is injurious to the interests of the public, is unreasonable, and consequently void.

The unreasonableness of such contracts very frequently is considered in re

spect of the space covered by the agreement. No certain boundary can be laid down in cases of this description; as much will depend on the nature of the business, the denseness of population, and the character of the community. The contract of a surgeon, not to practice within ten miles of another's residence, was held reasonable. Davis vs. Mason, 5 T. R., 118. While that of a dentist, not to practice within one hundred miles of a town, was held unreasonable. Homer vs. Graves, 7 Bing., 743. So an agreement not to follow or be employed in the business of a coal merchant, for nine months, was held unreasonable. Ward vs. Byrne, 5 M. &. W., 548. And one not to exercise the trade of a milk-seller within five miles of a certain square, for a limited time, was adjudged good. Proctor vs. Sargent, 2 M. & Gr., 20. In the case of Rannie vs. Irvine, 7 M. & Gr., 969. A covenant not to supply bread to any of the party's customers during a certain period, was sustained.

A stipulation of this nature may be valid in part, and in part void. Thus, the covenant of a dentist, not to exercise that employment in London, or in any place in England or Scotland, where the other party had practiced, was holden valid as to London, but void with respect to the residue. Mallan vs. May, 11 M. & W., 653. So an agreement not to carry on the trade of a perfumer within the cities of London or Westminster, or within six hundred miles from either, was adjudged good as to the cities, but void as to the six hundred miles. Green vs. Price, 13 M. & W., 695.

Third. With respect to the consideration of such contracts, the law has undergone some changes. In the early cases, it was held that the consideration should not be merely colorable but adequate; and Lord Ellenborough, in Gayle vs. Reed, 8 East., 86, laid down the rule, that the restraint on one side should be co-extensive with the benefits to be enjoyed by the other. Young vs. Timmons, Tyrn, 226. Wallis vs. Day, 2 M. & W., 273. But in Hitchcock vs. Coker, the court began to relax this rule; and in this case refused to inquire into the consideration, if shown to possess some bona fide, legal value. In that case, however, it was conceded that, if the consideration were merely colorable, the contract could not be enforced. And it is now considered as settled, that the courts cannot look to the question of the extent or adequacy of the consideration. Leighton vs. Wales, 3 M & W. 551. Archer vs. Marsh, 6 A. & E. 966. In all the cases rejecting the question of adequacy of consideration, the true inquiry is held to be, as to the injurious character of the contract to the public. If not detrimental to public interest, such agreements are valid, and the parties may contract upon what consideration they please. Green vs. Price, 13 M. & W. 695. Proctor vs. Sargent, 2 M. & Gr., 20. Mallan vs. May, 11 M. & W., 653.

The conclusions to be deduced from these principles of law are, that persons entering into these engagements, should consider the question, whether in the first place they affect the public interest injuriously, and, secondly, provide a merely colorable compensation to the party restrained. In the first case they would be void, on the grounds of public policy; in the last, invalid, from the absence of consideration. The inquiry in obligation of this description is not whether a party has merely parted with his privilege of enjoying a right, on the ground that one may voluntarily, and by his own act, deprive himself of the possession of his freehold, and sell or give it away at pleasure; but whether the private interest, and the public benefit, justify the restraining of that right. Because such stipulations are sustained, not because merely advantageous to the individual with whom made, and because

they operate as a sacrifice, pro tanto, of the rights of the community; but because it is for the benefit of the public at large to enforce them. Per Parke B. in Mallan vs. May, 11 M. & W., 653. As a standard, therefore, by which to govern this kind of agreements, it may be laid down, generally, that all contracts are good, which, upon some consideration, partially restrains a party from exercising a trade or employment, the effect of which restraint upon persons dealing with that trade or employment, would not be to limit the general exercise of, or to give the party obtaining the restraint a monopoly in, the particular trade or employment.

We cannot close this article without indulging gratulatory reflections, upon considering the effect of the freedom of trade upon the prosperity of our country. Not that, by the freedom of trade, we would be understood to mean a loose, indefinite action of government, which leaves the industry of the country without protection, and its commerce without encouragement; but that liberality in the construction of contracts, and the securities which is thrown around them, which, while leaving the field of commerce free, at the same time extends just rewards to genius; under which labor, left to the free exercise of its own powers, and defended against fraudulent appropriations, has constantly improved upon the arts, and opened innumerable sources of prosperity, enriching alike the individual and the State. Had a line of distinction, not justified in principle, not been drawn between the labors of the mind and of the hand, the gratulation would be complete; and it would not now be the reproach of nations, that while they have encouraged, to the utmost limit of government aid, the meanest manual employment, the divine products of the mind have been left subject to any theft, without defense from law, and animated by no hope of reward from public authority.

Art. VIII.-RAILROAD TO THE PACIFIC.

THIS great enterprise, destined to form a new era in the commerce of the world, and to exert a prodigious influence on the rapid progress of this country in population, and all the elements of national wealth and greatness, we are rejoiced to see, is commanding increased public attention. Whether we regard the magnitude of the enterprise, or the influence it is calculated to exert on the cause of civilization, and the destinies of the old and the new world, its accomplishment will be, and ever remain, the greatest event of the nineteenth century.

It is impossible to conceive of the influence this great work must have upon trade, population, and the highest interests of the human race. It will open the heart of this vast continent of more than 3,000 miles in extent, to the over-populated countries of Europe and Asia. This road will carry settlements and civilization from the Mississippi to the Pacific, an extent of nearly 2,000 miles; and open that vast region to the dissatisfied people of Europe, now struggling for a social condition, which, under their old organizations, they will probably never attain. It will also invite emigration from China, India, and other over-populated countries in Asia. The Chinese, not being a maritime people, have not planted colonies, or established settlements, beyond the limits of their own territories, notwithstanding the excess of their population, which has led to the inhuman practice of exposing in