Syllabus.

and believed that it was valid and binding. And upon such a pledge of its sincerity we may properly assume that during the years when it was using the vessel it held to the same faith. Otherwise it would have abandoned the contract and restored the vessel to its owner. It was not until pay day arrived that it was able to see things in what it now thinks is the proper light. I do not mean to say that it is not permissible in law for a party to alter his position in this way and in circumstances where the law permits it on grounds of public policy, but the conditions are recited to indicate the duty of the court to put such a construction upon the contract and give it such effect as will make it valid and obligatory if such construction is fairly possible.

In my opinion the public interest was not impaired in any way which would render the contract obnoxious to the prohibitions of the Sherman Act; and I cannot help thinking that a decision to the contrary would be opposed to the settled law, and if followed would render the making of any of this kind of contracts practically impossible, and must think that the public interest would be better served by compelling the defendant to perform its agreement.

[174] MOTION PICTURE PATENTS CO. v. ULLMAN ET AL.

(Circuit Court, S. D. New York. September 27, 1910.)

[186 Fed. Rep., 174.]

MONOPOLIES (8 21)-RIGHTS OF MEMBERS-SUIT FOR INFRINGEMENT— ALLEGATION OF UNLAWFUL CONSPIRACY.-It is no defense to a suit for infringement of a patent that the complainant and third persons have entered into an illegal combination or conspiracy in restraint of trade; and such defense is not aided by an allegation in the answer that the suit is not brought in good faith to prevent infringement, but for the purpose of making such conspiracy effective." [Ed. Note. For other cases, see Monopolies, Cent. Dig. § 15; Dec. Dig. § 21.]

'Syllabus copyrighted, 1911, by West Publishing Company,`

Opinion of the Court.

In Equity. Suit by the Motion Picture Patents Company against Isaac W. Ullman, Sidney M. Ullman, Duff C. Law, William Paley, [175] and the Film Import & Trading Company. On exception to answer. Exception sustained.

Richard N. Dyer and Leonard H. Dyer, for complainant. Littlefield and Littlefield, for defendants.

HOLT, District Judge.

I think the great weight of authority is to the effect that it is no defense to a suit for the infringement of a patent that the complainant and third parties have entered into a combination or conspiracy in restraint of trade, in violation of the Sherman Anti-Trust Act (Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3200]). Strait v. National Harrow Co. (C. C.) 51 Fed. 819; Otis Elevator Co. v. Geiger (C. C.) 107 Fed. 131; General Electric Co. v. Wise (C. C.) 119 Fed. 922; Independent Baking Powder Co. v. Boorman (C. C.) 130 Fed. 726; Motion Picture Patents Co. v. Laemmle (C. C.) 178 Fed. 104. Such a suit is not based on contract, but on tort, and, of course, the fact that a man has entered into some illegal contract does not authorize others to injure him with impunity.

The paragraph of the answer excepted to alleges that the suit is not brought in good faith to prevent infringement, but for the purpose of carrying out and making effective a contract, combination, and conspiracy between the complainant and the Eastman Kodak Company to monopolize the manufacture, sale, and use of moving pictures in violation of the Sherman Act. But the bill is a simple bill for the infringement of a patent. Its purpose is apparent on its face. The mere assertion that it has some other purpose is not an allegation of fact, and is not admitted by the exception. If incidentally it effects some other result, that does not authorize infringement.

My conclusion is that the exception should be sustained.

Statement of the Case.

[592] UNITED STATES v. AMERICAN NAVAL STORES CO. ET AL.

(Circuit Court, S. D. Georgia, E. D. April 17, 1909.)

[186 Fed. Rep. 592.]

MONOPOLIES (810)-FEDERAL ANTI-TRUST ACT-PENAL PROVISIONS— CONSTITUTIONALITY.-The pénal provisions of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), making it a misdemeanor to engage in any combination or conspiracy in restraint of interstate commerce or to monopolize or attempt to monopolize any part of such commerce, are constitutional.

[Ed. Note. For other cases, see Monopolies, Dec. Dig. § 10.] MONOPOLIES (§ 31)-FEDERAL ANTI-TRUST ACT-INDICTMENT FOR VIOLATION-SUFFICIENCY.-Counts of an indictment charging conspiracy to restrain and monopolize interstate trade and commerce in violation of Sherman Anti-Trust Act July 2, 1890, c. 647, §§ 1, 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), considered, and held to sufficiently charge and describe the offense.

[Ed. Note. For other cases, see Monopolies, Dec. Dig. § 31.] INDICTMENT AND INFORMATION (§ 125)-DUPLICITY-VIOLATION OF FEDERAL ANTI-TRUST ACT.-Under Sherman Anti-Trust Act July 2, 1890, c. 647, § 2, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200), which makes it a misdemeanor to "monopolize or attempt to monopolize

* any part of the trade or commerce among the several states or with foreign nations," monopolizing and attempting to monopolize such commerce are separate offenses and cannot be included in one count of an indictment.

[Ed. Note.-For other cases, see Indictment and Information, Dec. Dig. § 125.]

[593] Criminal prosecution by the United States against the American Naval Stores Company, Edmund S. Nash, and others. On demurrer to indictment. Overruled.

See, also, 172 Fed. 455; 186 Fed. 31..

Alexander Akerman, Asst. U. S. Atty., W. M. Toomer. Asst. Atty. Gen., for the United States.

W. W. Mackall, Adams and Adams, and Garrard and Meldrim, for defendants.

For charge given to the jury (172 Fed. 455) see vol. 3, p. 679.
Syllabus copyrighted, 1911, by West Publishing Company.

Opinion of the Court.

SHEPPARD, District Judge (orally).

The demurrer to the indictment in this case raises both the question of the validity of the penal provisions of the Sherman or Anti-Trust Act and the sufficiency of the indictment under sections 1 and 2 of said act. Act July 2, 1890, c. 647, 26 Stat. 209 (U. S. Comp. St. 1901, p. 3200). The questions raised by the demurrer, and so exhaustively and comprehensively argued by counsel, orally and by brief, have caused anxious and earnest investigation by the court. The statute has been a vexatious one to the courts since it first came under judicial scrutiny, in Re Greene (C. C.) 52 Fed.

104.

Four times, so far as my investigation has disclosed, this statute has received judicial consideration in criminal cases, and in none of these, was the question of the uncertainty and indefiniteness of the penal provisions of the statutes brought squarely before a court as here. Not once has the Supreme Court passed upon this, perhaps, doubtful feature of the act; but a fair and reasonable interpretation of the decisions of that court from United States v. E. C. Knight Co., in 156 U. S. 1, 15 Sup. Ct. 249, 39 L. Ed..325, as early as 1895, down to the Danbury Hat case, 208 U. S. 274, 28 Sup. Ct. 301, 52 L. Ed. 488, will uphold the validity of the act. A brief summary of them all is that they hold "that the act prohibits any combination whatever to procure action which essentially obstructs the free flow of commerce between the states or obstructs in that regard the liberty of a trader to engage in business." It does not fail to interest the inquiring student, either, that, in all of the important cases involving the construction of this act by that great court, every section of it has been persistently assailed for uncertainty, ambiguity, absurdity, and unconstitutionality.

The wholesome purpose of the law, as remedial legislation, is I conceive, no longer open to question or cavil by the inferior federal courts, who must, of course, be guided by the construction of the Supreme Court. Said Justice Lacombe, speaking for the Circuit Court for the Southern Dis

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trict of New York, in United States v. American Tobacco Co., 164 Fed. 700, referring to the Sherman Act:

“Disregarding various dicta, and following the several propositions which have been approved by successive majorities of the Supreme Court, this language, as prohibiting any contract or combination whose direct effect is to prevent the free play of competition, and thus tend to deprive the country of the services of any number of independent dealers, however small.

"As thus construed, the statute is revolutionary; by this it is not intended to imply that the construction is incorrect. When we remember the circumstances under which the act was passed, the popular prejudice against large aggregations of capital, and the loud outery against combinations which [594] might in one way or another interfere to suppress or check the full, free, and wholly unrestrained competition which was assumed, rightly or wrongly, to be the very life of trade, it would not be surprising to find that Congress had responded to what seemed to be the wishes of a large part, if not a majority, of the community, and that it intended to secure such competition against the operation of natural laws."

It could accomplish no good purpose, as I see at this time, to enter upon a comprehensive review and comparison of the decisions of the inferior federal courts construing the penal provisions of the act. Suffice it to say, that the well-reasoned case decided by Judge Jackson (which I would be inclined to follow if the statute had not received construction by the Supreme Court), who undertook to define the scope of the act and what were criminal monopolies, and what constituted restraint of trade and the sufficiency of an indictment within the purview of the statute, was long prior to the decisions of the Supreme Court in the Swift case, 196 U. S. 375, 25 Sup. Ct. 276, 49 L. Ed. 518, the Northern Securities case, 193 U. S. 197, 24 Sup. Ct. 436, 48 L. Ed. 679, and the Joint Traffic Association case, 171 U. S. 505, 19 Sup. Ct. 25, 43 L. Ed. 259). In view of the interpretation of the statute made in these cases it is not improbable that Judge Jackson's decision in Re Greene (C. C.) 52 Fed. 104, and Judge Nelson's decision in United States v. Greenhut (D. C.) 50 Fed. 469, and Judge Rick's in Re Corning (D. C.) 51 Fed. 205, would be different.

In so far as the application of the provisions of the statute denouncing as criminal combinations and conspiracies in