29 C. C. A. 141, 148; 46 L. R. A. 122, 129 (6th C., 1898). That as a penal statute the act is to be strictly construed, see § 182. See as to requisites of indictment under the act, U. S. v. Greenhut, 50 Fed. 469 (D. C. Mass., 1892); Re Greene, supra; U. S. v. Patterson, 55 Fed. 605, 641; 59 Id. 280 (C. C. Mass., 1893); U. S. v. Virgina-Carolina Chemical Co., 163 Fed. 66 (C. C. Tenn., 1908). It is not sufficient for an indictment to merely follow the words of the act. U. S. v. Nelson, 52 Fed. 646 (C. C. Minn., 1892); U. S. v. Patterson, 55 Fed. 605, 638 (C. C. Mass., 1893); Re Greene, supra. See Tribolet v. U. S., 95 Pac. 85; 16 L. R. A. N. S. 223 (Supm. Ct. Ariz., 1908).

In Tribolet v. U. S., supra, was overruled the objection that an indictment under the act was bad for duplicity "for that three separate and distinct offenses are alleged in the single count of the indictment, namely (1), the making of a contract in restraint of trade and commerce; (2) a combination in form of trust in restraint of trade and commerce; (3) a conspiracy in restraint of trade and commerce and that the statute denounces each of them as a separate and distinct offense." See also, as to objection of duplicity in indictment, U. S. v. MacAndrews, etc., Co., 149 Fed. 823 (C. C. N. Y., 1906).

In U. S. v. MacAndrews, etc., Co., supra, the offenses of a combination and of a monopoly charged in the same indictment were held

not distinct, so that separate punishment therefor was allowable.

As to necessity that indictment allege means by which combination or conspiracy was to be accomplished, see Tribolet v. U. S., supra.

As to sufficiency of description of combination, see U. S. v. MacAndrews, etc., Co., supra, there being here overruled the objection that the indictment described "only the results and effects of the combination but not the combination itself." See also as to sufficiency of allegation of time of combination or monopoly; also of description of conspiracy; also as to liability of corporation to indictment for conspiracy, and as to objection of joinder of corporate and individual defendants. Acts of a corporation were held to impose no criminal liability upon stockholders or others interested in the corporation. Re Greene, 52 Fed. 104, 112 (C. C. Ohio, 1892). As to issuance and service of process for non-resident corporation, see U. S. v. Virginia-Carolina Chemical Co., 163 Fed. 66 (C. C. Tenn., 1908). As to competency of grand jury to institute and pursue investigation directed to discovery of violation of act, see Re Hale, 139 Fed. 496 (C. C. N. Y., 1905). See also, as to proceedings before grand jury, U. S. v. Virginia-Carolina Chemical Co., 163 Fed. 66 (C. C. Tenn., 1908); article in 6 Columbia Law Rev. 375 (1906), by H. W. Taft.

By Act of Feb. 25, 1903 (32 Stat. L. 904), "no person shall be prose

cuted or be subjected to any penalty for forfeiture for or on account of any transaction, matter or thing concerning which he may testify or produce evidence, documentary or otherwise, in any proceeding, suit or prosecution" under the act, with, however, an exception as to perjury. As to application to testimony given before grand jury, see Re Hale; article in 6 Columbia Law Rev. 375 (1906) by H. W. Taft, supra. See also act of June 30, 1906 (34 Stat. L. 798).

48 § 4. Injunctions under this provision were allowed in U. S. v. Elliott, 62 Fed. 801 (C. C. Mo., 1894); U. S. V. Trans-Missouri Freight Assoc., 166 U. S. 290; 17 Supm. 540; 41 L. Ed. 1007 (1897); U. S. v. Coal Dealers' Assoc., 85 Fed. 252, 259 (C. C. Cal., 1898); Swift v. U. S., 196 U. S. 375; 25 Supm. 276; 49 L. Ed. 518 (1905; see for form of injunction). Thus, in U. S. v. Chesapeake & O. Fuel Co., 105 Fed. 93 (C. C. Ohio, 1900); affirmed as Chesapeake & O. Fuel Co. v. U. S., 115 Fed. 610; 53 C. C. A. 256 (6th C., 1902), an injunction was allowed against selling or shipping into any other State under the agreement held illegal (see § 190), the agreement was declared illegal and void, in so far as affecting interstate trade and commerce, and the combination thereunder dissolved. For forms of injunctions under the act, see also 36 Am. Law Rev. 597, 907 (1902).

In U. S. v. American Tobacco Co., 164 Fed. 700 (C. C. N. Y..

1908), issuance of the injunction was suspended until after the decision on appeal, and application for a receiver was denied. In U. S. v. Debs, 64 Fed. 724 (C. C. Ill., 1894), the defendant was held guilty of contempt for violating such an injunction. That relief may be obtained against a combination already organized, as well as against one in process of formation, see Northern Securities Co. v. U. S., 193 U. S. 197, 357; 24 Supm. 436, 465; 48 L. Ed. 679 (1904). As to bringing in additional parties, see § 5 of act; which was sustained and applied to non-residents in U. S. v. Standard Oil Co., 152 Fed. 290 (C. C. Mo., 1907). As to application of rule allowing some of numerous parties to be brought in as representing the whole, see U. S. v. Coal Dealers' Assoc., supra. As to exemption of witness from penalty or forfeiture, see § 200. By act of Feb. 11, 1903, c. 544 (32 Stat. L. 823), provision is made for giving precedence to a suit in equity under the act; see also as to appeal to Supreme Court.

As to jurisdiction of Supreme Court of District of Columbia to allow injunction, see Buck's Stove & Range Co. v. American Federation of Labor, 36 Wash. Law Rep. 822, 842 (Supm. Ct., D. C., 1908). 49 § 4.

50 § 4. In U. S. v. Coal Dealers' Assoc., supra, it was intimated that a temporary restraining order may be issued without notice, "under the circumstances sanctioned by the es

tablished usages of equity practice," with a query whether, for the purpose of obtaining such an order, it is necessary to show that irreparable injury will result from delay, the case involving a question of monopoly and restraint of trade. 51 That is, under § 7. Blindell v. Hagan, 54 Fed. 40 (C. C. La., 1893); affirmed as Hagan v. Blindell, 56 Fed. 696; 6 C. C. A. 86 (5th C., 1893); Pidcock v. Harrington, 64 Fed. 821 (C. C. N. Y., 1894); Greer v. Stoller, 77 Id. 1 (C. C. Mo., 1896); Gulf, Colorado. & Santa Fe Ry. Co. v. Miami Steamship Co., 86 Fed. 407, 420; 30 C. C. A. 142, 155 (5th C., 1898); Southern Indiana Express Co. v. U. S. Express Co., 88 Fed. 659, 663 (C. C. Ind., 1898); affirmed in 92 Fed. 1022; 35 C. C. A. 172 (7th C., 1899); Block v. Standard Distilling, etc., Co., 95 Fed. 978 (C. C. Ohio, 1899); Metcalf v. American School Furniture Co., 122 Fed. 115, 126 (C. C. N. Y., 1903); Territory v. Long Bell Lumber Co., 99 Pac. 911 (Supm. Ct. Okla., 1908); Post v. Railroad, 103 Tenn. 184, 228; 52 S. W. 301, 311; 55 L. R. A. 481, 492 (1899). In Minnesota v. Northern Securities Co., 194 U. S. 48, 71; 24 Supm. 598, 604; 48 L. Ed. 870 (1904), was held unauthorized a proceeding by a State for the alleged purpose of protecting certain of its proprietary interests, that is, by relief against the combination under consideration in Northern Securities Co. v. U. S., 193 U. S. 197; 24 Supm. 436; 48 L. Ed. 679 (1904),

it being said: "Taking all the sections of that act together, we think that its intention was to limit direct proceedings in equity to prevent and restrain such violations of the anti-trust act as cause injury to the general public, or to all alike, merely from the suppression of competition in trade and commerce among the several States and with foreign nations, to those instituted in the name of the United States under § 4 by district attorneys of the United States, acting under the direction of the attorneygeneral; thus securing the enforcement of the act so far as direct proceedings in equity are concerned, according to some uniform plan operative throughout the entire country." In Bigelow v. Calumet & Hecla Mining Co., 155 Fed. 869, 877 (C. C. Mich., 1907), the decisions were discussed at length, and disapproved "so far as they deny the right of a private party, who has sustained special injury by the violation of the anti-trust act, to relief by injunction under the general equity jurisdiction of the court." Accordingly such relief was allowed to a stockholder against an attempt by another corporation to secure control of his corporation by purchase of its stock, as part of a general plan to create a monopoly.

As to whether rule stated in text applies to injury under § 3, see Leonard v. Abner-Drury Brewing Co., 25 App. D. C. 161 (1905). See also as to remedy by dissolution of agreement invalid under act.

> 52

52 § 6. The proceedings for seizure and condemnation are like "those provided by law for the forfeiture, seizure and condemnation of property imported into the United States contrary to law." Held, that property could not be thus forfeited in a proceeding under the statute for an injunction. The court said: "This involves a trial by jury." U. S. v. Addyston Pipe & Steel Co., 85 Fed. 271, 301; 29 C. C. A. 141, 171; 46 L. R. A. 122, 142 (6th C., 1898); affirmed in Addyston Pipe & Steel Co. v. U. S., 175 U. S. 211; 20 Supm. 96; 44 L. Ed. 136 (1899).

53 In American Banana Co. v. United Fruit Co., 166 Fed. 261 (C. C. A., 2d C., 1908); affirming 160 Fed. 184 (C. C. N. Y., 1908), while it was said to be unnecessary "to aver an injury to an existing business," an action under the act was held not maintainable, there not appearing "an intention and preparedness to engage in business." But in Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., infra, it was held to apply, not merely to driving out of business, but to preventing one from engaging in it. The circumstances were held to show "something more than a mere mental intention (of the injured party) to engage in interstate commerce," such party having

53

undergone large expense with a view to engaging therein. So in Thomsen v. Union Castle Mail S. S. Co., 166 Fed. 251 (C. C. A., 2d C., 1908); reversing 149 Fed. 933 (C. C. N. Y., 1907), where it was said to be "as unlawful to prevent a person from engaging in business as it is to drive a person out of business" in sustaining the action (as to which see note 61, infra) it was held immaterial "whether the combination was entered into before or after the plaintiffs commenced to do business.”

In Wheeler-Stenzel Co. v. National Window Glass Jobbers' Assoc., 152 Fed. 864; 81 C. C. A. 658; 10 L. R. A. N. S. 972 (3d C., 1907; see § 198), was overruled the contention that the word "injured" "is used in a technical sense, and imports an injury as recognized at common law, that is, as a harm inflicted by commission of a wrong or tort"; that § 7, "while it gives a private right of action, does so only where violation of the preceding sections results in a legal injury at common law to the plaintiff, and that nothing in this section can possibly be construed into making such contracts and combinations themselves, wrongs or torts against the person who suffers harm thereby; that it is only where there has been such an injury, some tort or

breach of contract resulting from the public offense, that the party injured may recover," etc. Here was explained at length Mogul S. S. Co. v. McGregor, App. Cas. (1892) 25.

In Monarch Tobacco Works v. American Tobacco Co., 165 Fed. 774 (C. C. Ky., 1908), was sustained on demurrer the petition in an action under § 7, there being admitted by the demurrer "the existence of the illegal combinations and conspiracies to restrain and monopolize interstate trade and commerce." The court said: "The conspiracy and combination, though themselves unlawful, cannot injure any person either in his business or property so as to give him a cause of action under § 7, unless something be done to make the combination and conspiracy effective; but whatever is done by those engaged in the scheme or plot with the motive and intent to carry out the unlawful purpose itself becomes tainted with the illegality of the scheme, however innocent it might otherwise have been, the separate acts becoming thereby so interwoven with the unlawful scheme as to cause the injury 'by reason' of the combination, within the language of § 7. It therefore seems that a series of acts, each of which may be innocent in itself, may be wrongful if the direct object, purpose, and result thereof be to carry into effect a combination agreement whereby the free flow of commerce between the States or the liberty of a trader to carry on his business be obstructed. . . . All the defendants are jointly charged with having entered each of the alleged combinations and conspiracies com

plained of, and, while one is charged with doing one thing, and one with another, all of these acts, we think, are sufficiently alleged to have been done in pursuance of the common design."

In Minnesota v. Northern Securities Co., 194 U. S. 48, 70; 24 Supm. 598, 604; 48 L. Ed. 870 (1904), relief was denied to a State on account of alleged injury to cer tain of its proprietary interests, that is, against the combination under consideration in Northern Securities Co. v. U. S., 193 U. S. 197; 24 Supm. 436; 48 L. Ed. 679 (1904). See § 201. The court said: "The injury on account of which the suit was brought is at most only remote and indirect; such an injury as would come alike, although in different degrees, to every individual owner of property in a State, by reason of the suppression in violation of the act of Congress of free competition between interstate carriers engaged in business in such State; not such a direct actual injury as that provided for in § 7."

As to action by stockholder, see Bigelow v. Calumet & Hecla Mining Co., 155 Fed. 869, 879 (C. C. Mich., 1907); citing Metcalf v. American School Furniture Co., 108 Fed. 909, 912 (C. C. N. Y., 1901).

In Ames v. American Telephone, etc., Co., 166 Fed. 820 (C. C. Mass., 1909) the right of action of a corporation was held not enforcible by a stockholder. In Pennsylvania Sugar Refining Co. v. American Sugar Refining Co., infra, a corporation was allowed relief, against the objection that it was a party to the conspiracy, it not being precluded