"How is the result different from the simpler case of the sale by an individual of his business and his right to conduct it in a particular part of the land?" The answer, of course, is that in the case supposed the agreement does not, necessarily at least, result in an appreciable restriction upon competition, at any rate, not in a monopoly. This decision is the more surprising in view of the circumstance that in Diamond Match Co. v. Roeber, 106 N. Y. 473; 13 N. E. 419; 60 Am. Rep. 464 (1887), the same court had so clearly recognized the distinction between the doctrines. So, in Dolph v. Troy Laundry Machinery Co., 28 Fed. 553 (C. C. N. Y., 1886), an agreement between two manufacturers of washing-machines, they being the principal, but not the only, manufacturers in this country, for a division of profits on sales, upon the basis of a fixed price, was held not illegal. In Master Stevedores' Assoc. v. Walsh, 2 Daly (N. Y.), 1, 14 (1867), was sustained a bylaw of an association of master stevedores, providing for fixing prices for which members should work. The question whether this was void as tending to prevent competition, was not discussed beyond a statement that the by-law was "not in restraint of trade, for it imposes no restraint upon one

party which is not beneficial to the others, and is not prejudicial to the interests of the public." To what extent the members of the association controlled the business in the locality of their operations does not, however, appear.

15 Thus, so far as the Federal anti-trust act has had any effect, it has, as a rule, been with reference, not to "trusts," or other mere restrictions upon competition, but to contracts in restraint of "trade" or "commerce." See in the different anti-trust acts, prohibitions against combinations to "create or carry out restrictions in trade"; combinations, etc., "in restraint of trade," and the like. As to application of such provisions to ordinary contract of vendor not to engage in business, see under Federal act (§ 192); also under Minn. (§ 218); Neb. (§ 222); Tex. (§ 232). Compare under Ill. (§ 209); Mich. (§ 217). As to application of such provisions to restrictions upon use of property, see under Neb. (§ 222). See under Federal act (§ 194); also under Tex. (§ 232), as to whether such prohibitions include reasonable restrictions. See article in 33 Am. Law Rev. 63 (1899), on "Anti-trust Legislation and the Doctrine against Contracts in Restraint of Trade."

18 In Tuscaloosa Ice Manuf. Co. v. Williams, 127 Ala. 110; 28 So. 669; 50 L. R. A. 175; 85 Am. St. Rep. 125 (1900), an agreement in restriction upon competition was held invalid though confined in its operation to a region of 7,000 inhabitants. This was, however, on the ground that the agreement, regarded as a contract in restraint of trade, was thus not incident to the purchase of any business or plant. But the following are instances of acts held legal, where the court might have decided them to be illegal as creating restrictions upon competition, had it not been for the confusion of thought produced by applying the test of space limit. In Skrainka v. Scharringhausen, 8 Mo. App. 522, 527 (1880), an agreement among twenty-four proprietors of stone-quarries in a portion of St. Louis, providing for the sale of all the rubble building-stone of such quarries by a common agent for a period of six months at prices fixed by the agreement, was sustained. By its terms the agreement was designed to prevent the depression of prices resulting from competition, making it impossible to work quarries at a profit. The court said: "The partial nature of the restraint in the case before us seems to be not colorable, but real. The agreement is amongst the quarrymen of one district of one city, and it does not appear that it embraces all of them.

. . It is limited both as to time and place; and we know of no case in recent times in which a contract such as the one before us has been declared illegal." So in San Diego Water Co. v. San Diego Flume Co., 108 Cal. 549; 41 Pac.

495; 29 L. R. A. 839 (1895), a contract restraining competition in the business of supplying water to a city was held valid, as only partial, being confined to such city. In Downing v. Lewis, 59 Neb. 38; 80 N. W. 261 (1899), the contract sustained as valid was between the proprietors of the only two laundries in a given city. A striking instance to similar effect is Kellogg v. Larkin, 3 Pinney (Wis.), 123, 142; 56 Am. Dec. 164, 173 (1851), where recovery was allowed on a lease of a warehouse, though, to the knowledge of the plaintiff, executed in furtherance of an agreement between proprietors of six wheat mills on the one hand, and the proprietors of twelve warehouses on the other, whereby the warehousemen were to give the former "full, absolute and uninterrupted control of the Milwaukee wheat market, so far as they shall be able to do so by virtue of their capacity as warehousemen or vessel and dock owners." The court said: "The restraint it imposed upon trade, if any, was partial and limited; limited in every particular referred to in the books. It was limited as to persons, as to object, as to place and as to time (though this last is not essential). As to persons, it was limited to the proprietors of eleven (twelve) warehouses; as to object it was limited to the traffic in wheat; as to place, it was limited to the Milwaukee market; and as to time, to a period of about seven months." Compare Herriman v. Menzies, 115 Cal. 16; 46 Pac. 730; 35 L. R. A. 318; 56 Am. St. Rep. 82 (1896).

3 Though the question was not in the case, it seems to have been the view of the court in Mogul S. S. Co. v. McGregor, App. Cas. (1892), 25, 46, 58, that what were here called agreements "in restraint of trade" were not indictable at common law, questioning remarks of Crompton, J., in Hilton v. Eckersley, 6 El. & Bl. 47 (1855). Of forestalling, engrossing and regrating it is said in 1 Bishop's New Criminal Law, § 518: "These are kindred offenses, indictable both under the ancient common law and by early English statutes, yet seldom made the subject of a criminal prosecution in modern times. And in England they were abolished in 1844, by 7 & 8 Vict., c. 24, both as common-law offenses and as statutory." The statutes against these offenses had been repealed by 12 Geo. 3, c. 71 (1772), but, according to Rex v. Rusby, Peake's Additional Nisi Prius Cases, 189 (1800); Rex v. Waddington, 1 East, 143 (1800), they continued as common-law of fenses. See also 2 Wharton's Criminal Law (10th ed.), §§ 1849-51. For an extended discussion of the statute, 5 & 6 Edw. 6, c. 14, see Eddy on Combinations, §§ 40-52. In Ontario Salt Co. v. Merchants'

Salt Co., 18 Grant (Ontario), 540 (1871), an agreement among manufacturers of salt was held not illegal on the ground that its object was to raise the price, but the view was taken that, even if such acts were once illegal at common law, "long usage" has brought about a change in the common law in this respect. See Story on Sales (4th ed.), § 490; also article in 7 Harv. Law Rev. 338 (1894) by W. F. Dana, where it is said that "at common law there was no such offense as 'monopolizing"" (p. 342), and it is denied (p. 345) that "engrossing" at common law had any relation to "monopolizing."

4 See, for instance, Raymond v. Leavitt, 46 Mich. 447; 41 Am. Rep. 170 (1881); Cummings v. Foss, 40 Ill. App. 523 (1891); affirmed in Foss v. Cummings, 149 Ill. 353; 36 N. E. 553 (1894); Strait v. National Harrow Co., 18 N. Y. Suppl. 224 (Supm. Ct., Sp. T., 1891); Klingel's Pharmacy v. Sharpe, 104 Md. 218; 64 Atl. 1029; 7 L. R. A. N. S. 976; 118 Am. St. Rep. 399 (1906); Hammond Packing Co. v. State, 81 Ark. 519; 100 S. W. 407, 1199 (1907). These were all proceedings to enforce a civil liability. It is said in 1 Bishop's New Crim