but one new trial where the verdict was against evidence, but now it may grant as many as it pleases.

JUDGMENTS.

If the action be founded on a bond, bill, or note, and the defendant fails to answer, the clerk may assess the damages, and enter judgment for the amount appearing to be due. In other cases of default, the plaintiff may have a jury, or may leave the matter to the court, which may assess his damages and enter judgment. If the taking an account, or the proof of a fact be necessary, the court may order a reference. In cases of default, the damages or relief can be no greater than that asked in the petition served on the defendant.

Issues of law are to be tried by the court; of fact, by a jury, unless a jury be waived, when they shall be tried by the court. The jury, under the instruction of the court, may find either a general or special verdict. Trial by jury may be waived, by failing to appear at the trial; by written consent, filed with the clerk; or by oral consent in court, to be entered on the minutes. Upon a trial of facts by the court, its decision must be in writing; and in the decision, the facts must be first stated, and then the conclusions of law upon them, and judgment entered accordingly. And either party desiring a review upon the evidence, may apply to the court for that purpose, and make a case containing so much of the evidence as may be material to the question. Judgments may be given for or against one or more of several parties, plaintiffs or defendants, and may determine the ultimate rights of the parties, as between themselves. On judgments by default, the plaintiff can have no other, or greater relief, than he asks in his petition; but in all other cases, the court may grant him any relief consistent with the case made, and within the issues.

Appeals lie to the Supreme Court from the judgments of the Circuit Court, by application therefor, and giving bond to pay costs and damages, &c.; but is not a supersedeas, unless the bond be given in a sum sufficient, and to the effect that the party will prosecute his appeal, and perform the judgment of the court, and pay the damages awarded by the Supreme Court.

In an action arising on a contract, the defendant may, at any time before judgment, serve an offer upon the plaintiff, to allow judgment to go against him for the sum, or to the effect therein specified. If the plaintiff accept the offer, and give notice thereof within ten days, file the offer, and affidavit of notice of acceptance, judgment shall be entered accordingly. If notice of acceptance be not given, the offer shall be considered as withdrawn, and the plaintiff, unless he obtain a more favorable judgment, shall pay the costs from the time of the offer. In an action on contract, the defendant, when he files his answer, may make an offer that the damages be assessed at a specified sum, if he fail in his defense; and if the plaintiff fail to give notice of acceptance within five days, the offer shall be considered as withdrawn, and the plaintiff shall pay the costs of the defendant on the question of damages, unless he recover an amount exceeding the sum offered by the defendant.

Either party may, on motion, procure an order to examine the adverse party, on interrogatories in relation to any facts material to any issue or motion. The motion must state the facts expected to be proved, and be accompanied by the interrogatories, and may be made upon reasonable notice to the adverse party, or upon rule to show cause. This takes the place of our petition for discovery at law. Books, papers, and documents, may be

ordered to be produced at or before the trial, upon application of either party, upon motion. If an adverse party be not a resident of the county in which the action is pending, the party applying for an order to examine upon interrogatories may make an affidavit to the effect, 1st. that he believes the answer of the adverse party will be material evidence for him on the trial or hearing; 2d. that he believes that he cannot prove the same facts, or prove them so satisfactorily, by any other person; and 3d., that the order is not asked to procure delay. The court may thereupon make an order, that the party answer the interrogatories, or such of them as the court or judge may specify, on oath, and file such answer within such time as may be directed. If the party fail to reply within the time specified, the trial may be stayed until the order is complied with; and besides being punished for contempt, his petition, answer, or reply, may be rejected, or the motion, if made by him, refused, or if made by the adverse party, granted; or the court may order that the facts, which were expected to be proved, stand admitted, and be given in evidence accordingly. If the answer to the interrogatories be filed, it may be used as evidence by either party, but it shall receive no greater weight than the court or jury may, under all the circumstances, think it entitled to. If the answer contain matter relevant to the issue, but not responsive to the interrogatories, such new matter may be given in evidence by the party making the answer; but the other party may file his answer, or explanation of such new matter, on oath, which shall be received in answer accordingly. No action for a discovery, in aid of another action, shall be allowed. A party to an action may be examined as a witness, at the instance of the adverse party, and may be subpoenaed and compelled to attend like other witnesses, or his deposition may be taken and used like that of other witnesses, and the testimony of a party may be rebutted like other testimony. If he fail to attend or testify, his petition, answer, or reply, may be rejected, or motion rejected; or if made by the other party, sustained. If the party testify to new matter, pertinent to the issue, but not responsive to the questions put to him, the other party may testify in his own behalf as to the new matter. The evidence of parties to a suit may be rebutted. The disqualification of interest in a witness is abolished; but this does not apply to parties, nor to persons for whose use a suit is brought, or to the assignors of choses in action, assigned for the purpose of making the assignor a witness.

Executions are to conform to the judgment, and the party in whose favor a judgment is given, may, at any time within five years after judgment, enforce the same by execution. When the judgment requires the performance of any other act than the payment of money, a certified copy of the judgment may be served upon the party against whom it is given, and his obedience thereto required. If he neglect or refuse, he may be punished by the court, as for contempt.

We have thus given a brief abstract of this new law, relating to practice and pleadings, sufficient to guide those who require only a general idea of the same, for the purpose of enforcing their rights. The same law, however, changes and modifies the statute of limitation to conform to the new practice. These limitations, however, only apply to causes of action originating after the 4th of July of this year.

Suits for the following causes of action must be brought within ten years: 1st. Actions upon any writing, whether sealed or unsealed, for the direct payment of money or property.

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 limiWithin 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.

tation.

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