so far as the business is protected by patents which he has assigned or agreed to assign, the restraint is valid. It appears that there are "a dozen or fifteen concerns in the United States engaged in a somewhat similar business." The defendant testified that he looked up the number of patents pertaining to this branch of the art in 1881, and that there were then about 500. The defendant contends that he ought to be able to use his own patents for subsequent improvements applicable to such apparatus, if the plaintiff does not elect to purchase them; that he was previously a manufacturer of fire alarm and police telegraph apparatus, and not a seller thereof; that the good will which attached to his business was that of a manufacturer who did not sell his manufactures in the market, and that it is against public policy that he should be restrained from exercising his peculiar skill anywhere in the United States or in the world for the period of ten years. The apparatus, as the defendant contends, which he has a right to manufacture and sell, is not secret machinery, and is not protected by any patents which the plaintiff owns or has a right to control, but is apparatus either not protected by patents at all, or by patents of his own, or of some other persons who may choose to employ the defendant. The only ground, then, on which this restriction can be maintained is that it is reasonably necessary for the beneficial enjoyment by the plaintiff of the property it bought of the defendant, or, if this is not so, that the law in modern times does not regard such an agreement as against public policy. So far as we are aware, in every modern case in this commonwealth, except one where a contract in restraint of trade has been held valid, the restriction has been limited as to space. In Taylor v. Blanchard, 13 Allen, 370, the parties entered into a partnership for carrying on "the trade or business of manufacturing shoe cutters," and it was provided that "at whatever time the said copartnership shall be determined and ended," the defendant "shall not, nor will, at any time or times hereafter, either alone or jointly with, or as agent for, any person or persons whomsoever, set up, exercise or carry on the said trade or business of manufacturing and selling shoe cutters at any place within the aforesaid commonwealth of Massachusetts, and shall not nor will set up, make or encourage any opposition to the said trade or business hereafter to be carried VOL. X.-11

on by the plaintiff. The manufacture of shoe cutters was an art which could be carried on only by persons instructed in it, and the business was confined to the plaintiff and three other persons; but the court held the agreement void. In Bishop v. Palmer, 146 Mass. 469; 16 N. E. Rep. 299, the plaintiff, being engaged in the manufacturing and selling of bedquilts and comfortables, conveyed to the defendant his "entire business plant and enterprise as a manufacturer of and dealer in bedquilts and comfortables," together with the good will of the business, and all the machinery, implements and utensils used by him in said business, and agreed "that for and during the period of five years from the date hereof he will not, either directly or indirectly, in his own name or in the name of any other person or persons, continue in, carry on, or engage in the business of manufacturing or dealing in bedquilts or comfortables, or of any business of which that may form any part." It was held that this was clearly illegal and void as being in restraint of trade, because not limited as to space. See, also, Alger v. Thacher, 19 Pick. 51; Pierce v. Fuller, 8 Mass. 223, 226; Perkins v. Lyman, 9 Mass. 522; Stearns v. Barrett, 1 Pick. 43; Palmer v. Stebbins, 3 Pick. 188; Gilman v. Dwight, 13 Gray, 356; Angier v. Webber, 14 Allen, 211; Dean v. Emerson, 102 Mass. 480; Dwight v. Hamilton, 113 Mass. 175; Boutelle v. Smith, 116 Mass. 111; Ropes v. Upton, 125 Mass. 258; Handforth v. Jackson, 150 Mass. 149; 22 N. E. Rep. 634. The case of Machine Co. v. Morse, ubi supra, is the case referred to as an exception. The question arose upon demurrer. The agreement of the defendant was not only to transfer his patents, machinery, etc., and all improvements and inventions, but "that he will use his best efforts for the perfecting of improvements in the business and manufacture, and for such alterations and combinations as may tend to insure the success of the same and of the company," and that he "will do no act that may injure the company or its business, and that he will at no time aid, assist or encourage in any manner any competition against the same." He also agreed "to serve as the superintendent of the company for three years," etc. The plaintiff company was formed by the defendant and others, and the defendant's business was transferred to it. He was a stockholder, and was made superintendent.

The plaintiff agreed to employ the defendant for three years, and he was actually employed as superintendent up to the time he entered upon a competing business. The case seems to have been decided on the ground that the defendant had agreed to give to the plaintiff his exclusive services with reference to his mechanical skill and ingenuity in all improvements, alterations and combinations which would tend to insure the success of the plaintiff in manufacturing twist drills and collets. The court say that "the same principle that enables a partner to bind himself to do nothing in competition with the business of the firm ought to apply to him." The opinion proceeds to consider the English cases where the restriction was held not to extend beyond the good will of the business which was the subject of the sale, or was not greater than the interests of the vendee required, and was not unreasonable in view of all the circumstances. This doctrine, in England, has been carried very far. See Davies v. Davies, 36 Ch. Div. 359. In this country the courts generally have not gone so far, but the old law has been a good deal modified in some jurisdictions in view of modern methods of doing business. See Navigation Co. v. Winsor, 20 Wall. 94; Fowle v. Park, 131 U. S. 88; 9 Sup. Ct. Rep. 658; Ellerman v. Stockyards Co., 49 N. J. Eq. 217; 23 Atl. Rep. 287; Association v. Starkey, 84 Mich. 76; 47 N. W. Rep. 604; Matthews v. Associated Press, 136 N. Y. 333; 32 N. E. Rep. 981; Oliver v. Gilmore, 52 Fed. Rep. 562; Match Co. v. Roeber, 106 N. Y. 473; 13 N. E. Rep. 419; Whitney v. Slayton, 40 Maine, 224. In the present case the plaintiff did not buy the good will of a mercantile business, and the defendant Crane had no customers for fire alarm and police telegraph machines and apparatus. The plaintiff gets everything it bought if it gets the tangible property and the letters patent and the improvements which the defendant Crane agreed to convey. The stipulation that Crane will not for ten years manufacture or sell fire alarm or police telegraph machines and apparatus, although under patents, in which case it has refused to buy, or under no patent at all, will tend to give the plaintiff a monopoly of the business. To exclude a person from manufacturing or selling anywhere in the United States or in the world machinery designed for certain purposes, in which that person has acquired great skill, may operate to impair his means of earning a living. The stipulation

seems to us to be something more than is reasonably necessary to protect the plaintiff in the enjoyment of the property it bought, even if that should be adopted as the test, upon which we express no opinion. The principal object of the stipulation was, we think, to prevent the manufacture or sale by the defendant of any instruments which would serve the same purpose as those made and sold by the plaintiff, and thus to enable the plaintiff more completely to control the market. Large cities and towns. cannot well do without some kind of fire alarm and police telegraph apparatus, and it is an article of necessity for such municipalities. We are of the opinion that under our decisions the stipulation must be pronounced void as against public policy. If there is to be a change in the law, as heretofore many times declared by this court, we think it is for the legislature to make it. See Factor Co. v. Adler, (Cal.) 27 Pac. Rep. 36; Taylor v. Sourman, 110 Penn. St. 3; 1 Atl. Rep. 40; Richardson v. Buhl, 77 Mich. 632; 43 N. W. Rep. 1102; Herreshoff v. Boutineau, (R. I.) 19 Atl. Rep. 712; Strait v. Harrow Co., (Sup.) 18 N. Y. Supp. 224; Anderson v. Jett, (Ky.) 12 S. W. Rep. 670; Urmston v. Whitelegg, 63 Law T. R. (N. S.) 455; Perls v. Saalfeld, (1892) 2 Ch. 149. For these reasons a majority of the court are of opinion that the decree against Crane should be substantially affirmed as to the assignment of patents and inventions and as to costs, and should be reversed as to the rest. The decree in favor of Cole should be affirmed. So ordered.*

PUBLIC POLICY AS A BASIS FOR JUDICIAL DECISIONS. 1. What is public policy - definitions. It has been said that public policy does not admit of definition and is not easily explained." KEKEWICH, J., in Davies v. Davies, 36 Ch. Div. 359, 364. At the same time if the mind could not form some general conception of what is meant by "public policy," it would be impossible to apply the principle to particular cases. Greenhood's definition or statement of the principle is as follows: "By public policy is intended that principle of the law which holds that no subject can lawfully do that which has a tendency to be injurious to the public or against the public good, which may be termed the policy of the law, or public policy in relation to the administration of the law." Greenhood Pub. Pol. 2. This is substantially the language of Lord TRURO in Egerton v. Earl Brownlow, 4 H. L. Cas. 1, 196. The Illinois Supreme Court says: "Public policy is that principle of law which holds that no subject or citizen can lawfully do

* Reported in 160 Mass. 50; 35 N. E. Rep. 98.

that which has a tendency to be injurious to the public, or against the public good." People ex rel. Peabody v. Chicago Gas Trust, 1 Am. R. R. & Corp. Rep. 562, 575. And again: Whatever is injurious to the interests of the public is void on the ground of public policy." Craft v. McConnoughy, 79 Ill. 346. A writer upon the subject of Public Policy in the Law of Contracts," in 29 Cent. Law Jour. 309, gives the following definition: "It is synonymous, therefore, with the public welfare, and the public welfare requires that the public health, justice, morals, trade and peace be kept inviolate. Whatever is injurious to these great interests, which society cherishes and laws are formed to promote, is contrary to public policy and void." The definition to be found in 19 Am. & Eng. Ency. of Law, 565, is similar to that given by Greenhood and quoted above.

2. Public policy is variable.—" One thing I take to be clear," says Mr. Justice KEKEWICH, "and it is this - that public policy is a variable quantity; that it must vary and does vary with the habits, capacities and opportunities of the public; that it cannot have been the same when Chief Justice TINDALL decided Horner v. Graves, 7 Bing. 735, in 1831, as it was when Chief Justice PARKER decided Michell v. Reynolds, 1 P. Wms. 181, in 1711; that it must have changed, and did change, between 1831 and 1869, when Vice-Chancellor JAMES decided Leather Cloth Company v. Lorsant, L. R., 9 Eq. 35; and if there had not been a further change before Lord Justice FRY decided Rousillon v. Rousillon, 14 Ch. Div. 351, in 1880, it must have occurred since." Davis v. Davis, 36 Ch. Div. 359 (1887).

"The determination of what is contrary to the so-called policy of the law necessarily varies from time to time. Many transactions are upheld now by our own courts which a former generation would have avoided as contrary to the supposed policy of the law The rule remains, but its application varies with the principles which for the time being guide public opinion." Evanturel v. Evanturel, L. R., 6 P. C. 1, 29. Approved by BOWEN, L. J., in Maxim-Nordenfeldt Guns & Ammunition Co. v. Nordenfeldt, (1893) 3 Ch. 665. "Public policy is variable-the very reverse of that which is the policy of the public at one time may become public policy at another." Griswold v. Illinois Central R. Co., 9 Am. R. R. & Corp. Rep. 697. Public policy changes with the changing conditions of the times. It is hardly to be expected that a people who are transported by steam with a rapidity hardly conceived of a century ago, who are in constant and instant communication with each other by electricity, and who carry on the most important commercial transactions by the use of the telegraph while separated by thousands of miles, will entertain precisely the same views of what is conducive to the public welfare in commercial and business transactions as the people of the last century, who lived when commerce crept slowly along the coasts, shut out of the interior by the absence of roads, and hampered by an almost impassable ocean." United States v. Trans-Missouri Freight Assn., 8 Am. R. R. & Corp. Rep. 523, 537, 538. Public policy differs in different states and countries, as well as in the same country, at different times. As people differ in their beliefs, opinions, aims, habits and surroundings, it is natural and inevitable that they should entertain different views as to what will best promote the public welfare.