going sentence therefor in the state's prison, we have no doubt a nol. pros. will be entered in this cause below. Appeal dismissed.

DOUGLAS, J. (dissenting). I have a natural repugnance to the mixing up of criminal and civil proceedings, and the inextricable confusion necessarily arising therefrom. The Code says:

"Sec. 125. Remedies in the courts of justice are divided into:-(1) Actions. (2) Special Proceedings.

"Sec. 126. An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.

"Sec. 127. Every other remedy is by a special proceeding.

"Sec. 128. Actions are of two kinds: (1) Civil; (2) criminal."

We are told that the trial of a plea of former conviction is "a collateral civil inquiry." What is a collateral civil inquiry? Is it an action or a special proceeding? It does not seem to me to be either, and, if nefther, I see neither room nor warrant in the Code for its judicial creation. The action at bar is certainly criminal, as the defendants are charged with larceny, which may send them to the penitentiary for 10 years. I do not see anything civil about it, no matter what definition of the term we may choose. It is true, the defendants are already in the penitentiary, serving a ten-year sentence for the same unlawful act, but it seems that it is not enough. This splitting up of one act into two distinct offenses cannot meet my approval. It is illogical and dangerous, and frequently false in fact,-a mere creation of Judicial speculation. The plea of former conviction is neither an action nor a special proceeding. It is merely a defense to a criminal action,--just as much so as the plea of not guilty. Either plea, found in the defendant's favor, is just as effectual as the other, and in fact in some jurisdictions the defense of former conviction or acquittal may be shown under the general issue without being specially pleaded. 9 Enc. Pl. & Prac. 631. Pleas, being purely defensive, and therefore having no independent existence, are governed in their determination by the nature of the action in which they are interposed. The fact that in many of them the burden of proof is imposed upon the defendant does not turn them into civil inquiries. In trials for murder, the burden of proving self-defense rests upon the defendant, but surely it is not a civil inquiry. It is said that "the plea of former conviction is not a plea upon the merits." That is true in a moral sense, but it goes to the essence of the action. It is a plea in bar, and not in abatement, and therein it differs materially from the plea of

insanity as interposed in State v. Haywood, cited by the court. If a defendant is insane at the time of the commission of the offense, he is irresponsible, and therefore not guilty of the crime. This is in bar. If, however, he becomes insane after the commission of the offense, his plea is in the nature of abatement, and protects him only while he remains insane. State v. Pritchett, 106 N. C. 667, 11 S. E. 357; 10 Enc. Pl. & Prac. 1215, 1216. On the other hand, the plea of former conviction, when sustained, is a complete bar to any further prosecution. The defendant stands as fully acquitted of the present charge as if there had been a verdict of not guilty. One is equally free, whether he has never owed the debt, or has paid it. Upon such a finding he is entitled to his discharge, and when that finding is set aside he is again placed in Jeopardy. I cannot devest myself of the idea that a man is in legal jeopardy when he is in danger of being sent to the penitentiary, nor can I regard any proceeding that sends him there as civil in its nature. To say that an action itself is criminal, but that the defense thereto is civil, involves an inconsistency foreign to my opinion of the law.

From my view of the law, it would follow that the court below had no power to set aside a verdict substantially of acquittal as being against the weight of evidence. I concur in the intimation of the court that a nol. pros. should be entered below.

(131 N. C. 229)

ROBINSON et al. v. LAMB. (Supreme Court of North Carolina. Nov. 5, 1902.)

JUDGMENTS - BAR FERRIES COUNTIESBOUNDARIES-TRIAL-QUESTION OF

LAW-JURISDICTION.

1. A judgment in one county in proceedings to establish a ferry was not an estoppel of proceedings by the same parties in another county to establish a ferry at the same place, provided the commissioners in the second county could give any relief not given by the commissioners of the county where the first suit was brought.

2. In proceedings to establish a ferry over a certain body of water, evidence examined, and held to show that such body of water was but a cut-off, and was not the Pasquotank river, and therefore not within a prohibition of ferries over said river within a certain distance from an existing ferry.

3. Where a division of a body of water had always been regarded as the river, and as forming a county boundary, legislation relative to a ferry thereon could not be made applicabie to another division of the water which formed a cut-off, by showing that the alleged cut-off was in fact the principal stream, and that the part regarded as the river was a subsidiary stream.

4. The court properly refused to submit such an issue, as, on the facts admitted, or of which the court would take judicial cognizance, the question was one of law.

5. Under 2 Rev. St. p. 111 (Act 1777), creating Camden county, and describing it as "all

that part of Pasquotank county lying on the northeast side of Pasquotank river," the river is left wholly in Pasquotank county; and under Code, § 2014, that county had sole jurisdiction of proceedings to establish a ferry over the river.

Appeal from superior court, Camden county; Jones, Judge.

Proceedings by Charles H. Robinson and others against E. F. Lamb to establish a ferry. From a judgment for plaintiffs, defendant appeals, and moves to dismiss the action for want of jurisdiction. Action dismissed. The following is a map of the locality:

plaintiff (except one person) and the same defendant, was heretofore begun before the commissioners of Pasquotank county, and the same propositions of law presented by the exceptions in this case were decided in that on appeal. Robinson v. Lamb, 126 N. C. 496, 36 S. E. 29. The judgment in the former action is pleaded by the plaintiffs as an estoppel in this, since no other relief is asked than the establishment of the ferry at the expense of the plaintiffs, as prayed in the former action. But if the commissioners of Camden could give any relief not already given by the commissioners of Pasquotank, the

the plaintiffs; and, the law applicable having already been adjudged in favor of plaintiffs in the two appeals above cited, judgment was rendered accordingly, and defendant appealed.

The defendant contends that Stinking gut is Pasquotank river, or a part of it, and that a ferry over it would be illegal, because over Pasquotank river within two miles of Lamb's ferry, but we cannot assent to the proposition. This gut, with its malodorous name, is stated to be 80 to 100 feet wide and 150 yards in length. It is a cut-off 7 or 8 feet deep, through which boats sometimes pass, while what is and always has been known as "Pasquotank River" is very much larger, being 150 yards wide, and with a great curve sweeps by Elizabeth City, where the new ferry is, and then bends back; the peninsula thus formed, and whose neck is crossed by Stinking gut, being known as "Goat Island." It is, by the evidence, some 500 yards across Goat Island from the new ferry to where the road will cross Stinking gut. Even geographically speaking, it is clear that the broad stream which flows by the town is Pasquotank river, and the gut, which is one-fifth of the width of the river, or less, is merely a cut-off, like the Dutch Gap Canal, dug by Gen. Butler in James river during the war, or like similar cut-offs excavated not infrequently by floods in the Mississippi. But even if it could be shown that Stinking gut was physically the true river, and the broader stream (five times as broad) that flows by Elizabeth City was the subsidiary stream, still, the latter has always been known as "Pasquotank River," and this is the stream over which the ferry was ordered, and which for the century and a quarter since the act establishing Camden county has been the county boundary. In all that time, Goat Island, as is conceded and cannot be denied, has been in Camden county. If Stinking gut were Pasquotank river, or, legally speaking, a part of it, then Goat Island would be in Pasquotank county. It is physically and legally impossible that Pasquotank river, as it flows around Goat Island, and Stinking gut, which cuts across its narrow neck, should both be the boundary between the counties, as defendant contends. The Pasquotank river is the boundary between the counties, and has been since 1777. When the legislation under which the defendant claims was enacted, this river was the stream that flows by Elizabeth City. It could not be at two places. There has been no legislation as to Stinking gut.

The establishment of a road from the eastern end of the ferry, and a bridge or ferry across Stinking gut, are matters for the cogLizance of the commissioners of Camden, since, as we have said, Stinking gut is Stink

ing gut, and is in Camden county, and is not Pasquotank river, which lies wholly in the county of that name. A ferry or bridge over Stinking gut is not a ferry or bridge over Pasquotank river. If it could be shown and demonstrated that Stinking gut is the scientific boundary, being the true Pasquotank river, it has not been so known, styled, and treated, and hence is not, in law, any part of that stream, though it flows into and flows out of the Pasquotank. An act of the legislature would be necessary to make the change in the boundary and in the name of the stream. Doubtless the citizens of the prosperous and progressive city by the Pasquotank will some day procure an act of the legislature to bestow some name more euphonious and sweet smelling upon a stream which lies so close to their doors as malodorous Stinking gut. But no change of name, not even were that of Pasquotank river bestowed upon it, would transfer the county boundary to the cut-off, unless the act clearly so indicated. Certainly neither the court nor the jury could change a county boundary, recognized as such for a century and a quarter, upon the ground that another stream bearing another name is the scientific frontier, upon the ground that it is physically the true Pasquotank, or a part of it, and that what has been known as "Pasquotank River" all these years is physically not entitled to be solely so designated. An issue to that effect was properly refused, for, upon the facts admitted, or of which the court takes judicial notice (like a county boundary), the proposition is one of law, not of fact.

The defendant moved in this court for the first time to dismiss for want of jurisdiction, in that Pasquotank river lies wholly in Pasquotank county, and the commissioners of that county alone have jurisdiction. Code, § 2014. The act of 1777 (2 Rev. St. p. 111), creating Camden county, describes it as "all that part of Pasquotank county lying on the northeast side of said river [Pasquotank]." This, of course, leaves the river entirely in Pasquotank county, and the commissioners of that county have sole jurisdiction to establish a ferry over it; and the defendant's motion to dismiss this proceeding for want of jurisdiction in the commissioners of Camden county is well taken, and must be allowed. But as the ferry has already been established by the commissioners of Pasquotank, and their action affirmed (126 N. C. 492, 36 S. E. 29), and it has been held that the act of 1901 does not affect a ferry already ordered to be established (129 N. C. 16, 39 S. E. 579), though the motion of the defendant must be granted, we do not see that it can in any wise avail him beyond a recovery of the costs in this case. Action dismissed.

(131 N. C. 251)

SHUTE et al. v. HEATH et al. (Supreme Court of North Carolina. Nov. 18,

1902.)

CONTRACT IN RESTRAINT OF TRADE-INDEFINITENESS AS TO TERRITORY.

1. A provision in a contract of sale of a business of manufacturing timber and ginning cotton that the seller will not engage in the business in any territory from which he secures his patronage, so as to compete with the buyer, is void for indefiniteness as to territory.

Appeal from superior court, Union county; McNeill, Judge.

Action by H. A. Shute and others against W. C. Heath and others. Judgment for defendants, plaintiffs appeal. Action dismissed.

Maxwell & Keerans, for appellants. Armfield & Williams and Adams & Jerome, for appellees.

MONTGOMERY, J. Contracts in partial restraint of trade can be made and enforced of common right. This court said in Kramer v. Old, 119 N. C. 1, 25 S. E. 813, 34 L. R. A. 389, 56 Am. St. Rep. 650: "The modern doctrine is founded upon the basic principle that one who by his skill and industry builds up a business acquires a property at least in the good will of his patrons which is the product of his own efforts, and has the fundamental right to dispose of the fruit of his own labor, subject only to such restrictions as are imposed for the protection of society, either by expressed enactments of law or by public policy." An indefinite restriction as to duration will not make such contracts void. Kramer v. Old, supra. But there must be a definite limitation as to space, and the reasonableness of such limitation will depend upon the nature of the business and good will sold. A contract, for instance, for a valid consideration, not to engage in the manufacture and sale of firearms in general use, would be allowed to cover a larger extent of territory than would a contract not to engage in the manufacture of timber or the ginning of cotton. And the reasonableness of the limitation as to space is a matter of law for the court to decide. Chitty, Cont. 738. And the test of that reasonableness is whether the space or territory is greater than is necessary to enable the assignee to protect himself from competition on the part of his assignor, and thereby to get the benefit of what he has bought. The assignee would have the right to freedom from the competition of the assignor in the whole territory from which the assignor derived the profits of his business. The contract before us is silent as to restriction as to time, but under the decision made in Kramer v. Old, supra, that would be construed to be for the lives of the assignors. The trouble in the present case grows out of that part of the contract in respect to the limitation as to space. The defendants, after selling to the plaintiffs a tract of land and gin

ning and sawmill machinery, agreed with them that they "would not erect, conduct, or carry on the business of ginning and baling cotton or making brick in any territory now occupied by them, or from which they secure their patronage, so as to compete with them or injure their business in any of the lines of ginning and baling cotton or making brick, either for ourselves, or as agents for another or others." The defendants in this court filed a motion to dismiss the action on the ground that the complaint did not state a cause of action, in that the contract set out in the complaint is void for indefiniteness as to territory within which defendants were not to gin cotton. We think the motion must be allowed. The infirmity of the contract does not consist in the reasonableness as to the extent of territory in which the plaintiffs were to conduct their business free from competition on the part of the defendants, but it is in the indefiniteness of that territory. No rule can be laid down by which the area can be made certain. No instructions could be given, even to an expert surveyor, by which he could define the bounds of the space. It is without shape,without course or distance from any object or pointer. The fixing of the bounds would depend upon the testimony of witnesses, each testifying as to what he knew as to who were the patrons of the plaintiffs, and where they resided. The attempted enforcement of such contracts would, in the nature of things, be likely to produce litigation between the assignor and assignee as to the extent of the territory, with the probability that large numbers of witnesses would be called, and great expense incurred both by the litigants and the public. A retrospect of the course of the law in respect to contracts in restraint of trade confirms us in the view we have taken of the contract in the present case as to the limitation as to space therein set out; that is, that the agreement that the limitation as to space shall be so definitely set out in the contract as that the bounds must be determined by the same rules as apply to the description of real estate in deeds. Contracts in general restraint of trade with Englishspeaking peoples have always been void; and while the doctrine has been in modern days modified to the extent of permitting such contracts, to operate in limited territory, to be made and enforced, yet in all the cases we have found, except one hereafter referred to, the space has been definitely fixed in the contract, with as much certainty as is required in the description in deeds. The evil consequences likely to flow from such contracts to the parties, as well as to the public, induce us to construe the requirement of definiteness as to space strictly, and that the contracts themselves shall set out such a description as shall be definite without the aid of testimony dehors, except such as is allowed in establishing the boundaries to real estate conveyances. An opinion in the

case of Alger v. Thacher, 19 Pick, 51, 31 Am. Dec. 119, is of so much interest on this subject that we feel justified in making the following quotation from it: "Among the most ancient rules of the common law, we find it laid down that bonds in restraint of trade are void. As early as the second year of Henry V. (A. D. 1415), we find by the Year Books that this was considered to be old and settled law. Through a succession of decisions it has been handed down to us unquestioned till the present time. It is true, the general rule has from time to time been modified and qualified, but the principle has always been regarded as important and salutary. For two hundred years the rule continued unchanged and without exceptions. Then an attempt was made to qualify it by setting up a distinction between sealed instruments and simple contracts. But this could not be sustained upon any sound principle. A different distinction was then started from a general and unlimited (limited) restraint of trade, which has been adhered to down to the present day. This qualification of the general rule may be found as early as the eighteenth year of James I (A. D. 1621). Broad v Jollyfe, Cro. Jac. 596, where it was holden that a contract not to use a certain trade in a particular place was an exception to the general rule, and not void. And in the great and leading case on this subject (Michell v. Reynolds, 10 Mod. 27, 85, 131) the distinction between contracts under seal and not under seal was finally exploded, and the distinction between limited and general restraints fully established. Ever since that decision con. tracts in restraint of trade generally have been held to be vold, while those limited as to time or place or persons have been regarded as valid and duly enforced. It is reasonable, salutary, and suited to the genius of our government and the nature of our institutions. It is founded on just principles of public policy, and carries out our constitutional prohibitions of monopolies and exclusive privileges. The unreasonableness of contracts in restraint of trade and business is very apparent, from several obvious considerations: (1) Such contracts injure the parties making them, because they diminish their means of procuring livelihoods and a competency for their families. They tempt improvident persons, for the sake of present gain, to deprive themselves of the power to make future acquisitions, and they expose such persons to imposition and oppression. (2) They tend to deprive the public of the services of men in the employments and capacities in which they may be most useful to the community as well as to themselves. They discourage industry and enterprise, and diminish the products of ingenuity and skill. (4) They prevent competition and enhance prices. (5) They expose the public to all the evils of monopoly. And this, especially, is applicable to wealthy companies and large corporations, which have the means, unless 42 S.E.-45

*

*

(3)

restrained by law, to exclude rivalry, monopilize business, and engross the market. Against evils like these, wise laws protect individuals and the public by declaring all such laws void."

The plaintiffs' counsel referred to the cases of Kramer v. Old, 119 N. C. 1, 25 S. E. 813, 34 L. R. A. 389, 56 Am. St. Rep. 650, and Moore & Handley Hardware Co. v. Towers Hardware Co. (Ala.) 6 South. 43, as supporting the plaintiffs' contention that the limitation as to space was sufficiently definite to be enforced. In the first-mentioned case, the defendants agreed not to continue the milling business "in or in the vicinity of Elizabeth City." There the defendants did not make in this court the contention that the area was too great, and therefore unreasonable, or that it was too indefinite. The contention was over the limitation as to time. The other case, however,-the Hardware Case,-is toward the sustaining of the plaintiffs' position. The contract there provided that the defendants, upon a sale of their business to the plaintiffs, would sell no more "plow blades and plow stocks," without stating any particular or definite territory. The court there said: "The territory in which the vendees obtained their trade was well known to the vendors, and therefore the contract is not in general restraint of trade and invalid A contract by which a partnership engaged in the business of selling hardware sold out their stock of plow blades and plow stocks to a rival, and agreed not to handle any more plow blades or plow stocks, was construed in connection with the attending circumstances, showing the extent of country over which the rivalry in business extended, is not an unreasonable restriction of trade." But this court decided exactly the reverse in the case of Hauser v. Harding, 126 N. C 295, 35 S. E. 586, and for the reasons giver there and here we will abide by that deci sion.

Motion allowed and action dismissed.

(116 Ga. 589)

VEAL v. STATE. (Supreme Court of Georgia. Nov. 14, 1902.) CRIMINAL LAW-DEMURRER TO INDICTMENT -NEW TRIAL-IDEM SONANSSELLING LIQUOR.

1. The overruling of a demurrer to an indictment cannot properly be made a ground of a motion for a new trial.

2. It is too late, in absence of exceptions pendente lite, to except to the overruling of a demurrer to an indictment, when 20 days have elapsed since the ruling complained of was made.

3. Upon demurrer to, or motion to strike, a plea of misnomer, in a criminal case, the cour may, as matter of law, decide that the names "Witt" and "Wid" are idem sonans.

4. The fact that an indictment which de scribes the accused by his Christian and sur names fails to also designate him by the initial of his middle name is immaterial.

4. See Indictment and Information, vol. 27, Cat. Dig. 219.