IN RE TERRELL.

213

o,t Nashville, Tenn., by the United States through its district attorney, and against an illegal coal monopoly, doing business under tion clearly differing from this case, and manifestly illegal; and that company was enjoined from doing business, and the public in that suit protected againl3t the high prices in coal which resulted from a contract held illegal under this act. If, therefore, the attorney general of the United States should deem it proper to further test the question of whethe,r the business of the defendants in this case is a monopoly, or in restraint of trade, he may authorize such a civil proceeding to be instituted, and by such suit speedily secure an adjudication from the circuit courts as to the effect and scope of this act. Inasmuch as these ants were legally engaged in this extended business before the act of congress was' pal;lsed, it would be fair and proper to proceed against them first byauoh civil suit. The public would be better protected, and more promptly benefited, by such proceeding, because it could be speedily heard, ftn,d reliefbe effectually granted, by an injunction restraining such business, land destroying the monopoly, if such the court should adjudge it to be. The warrant for removal will therefore be denied, and the' defendants· dis,charged from further custody.

In re

TERRELL.

UNITED STATES '11. GREENHUT

etal.

(ctMUU Oourt, S. D. New York. June 28, 1892.)
L

CRIMINAL LAW..,.,HABEAS CORPUS-JURISDIOTION OF CIROUIT COURTS-REMOVALOJr PRISOKER. ,

Where a prisoner, arrested under warrant based upon an indictment in a distant state and district, is held pending an application to the district court for a warrant of removal for trial, the circuit court of the district in which he is' held has authority on habeas corpus to examine such indictment, and to release the prisoner, if in.its the indictment should be quashed on demurrer. An indictmentlinder the act of July 2, 1890, relating to 'monopolies, averred in the fourth count that ,defendants, in pursuance of a combination to restrain trade in distillery products between the states, shipped certain Whisky to Massachusetts, and sold it there through their distributing agents to dealers under a Contract whereby said dealers were promised a rebate of five centil per gallon on their purchases, providing such dealers purchased their distillery products exclusively from the distributing agents, and sold them no lower than the prescribed list prices; said rebate,tQ\Ie paid,when such dealers should sign a certificate that they had so for six months; and that by this means defendants had controlled and increased the price of distillery products in Massachusetts. HeW, that no orilna fYas charged with respect, to such sales, since there was /10 averment of any contract whereby the dealers bound themselves not to purchase from others, or not to sell at less than list prlces. In re CornVng, 51 Fed. Rep. 205, approved.

9.

ILLEGAL COMBINATIONS-CONTRAOTS IN RESTRAINT OF TRADE-INDICTMENT.

, Petition byl,IerbertL. Terrell for a writ of habea.s COTpUB. . ' Tho8. Thacher and Elihu Root, for petitioner.

Prisoner

vol. 51. , ijHwMdtJrttb1i&l"DiSt;,Atty", :aridMdawtuEvarls,.Asst\ DiSt. Atty., fmtlle:!United States. r ' , The petitioner was arreElted ,in this district The watirl1nt 'was based upon an'affidavit, which was itself based solely upon the count inan.!iindiCtment found' by the grand jury in the district court of the UnitedStntes for the district of Massachusetts. The petit!i()ner being in oU$.b>dyof the United States marshal to await the orderof,the district jUdge, under Rev. St. § 1014, for his rf'moval to the district Of Massachusetts. writs of habeas CorpU8 and certiorari were issued, to: which retums have been made. It is not disputed by the district attorney that it is not only the right, but the duty, of the district court, before to look into the indictment, so far as to be 'satisfied that an offense against the United States is charged, and that it is suchan offense as may lawfully be tried in the forum to wh'ichitis claimed the acicused should be removed; and the same right and dnty arises upon lidb&t8· cOi"pltB, whether the petitioner is held under the warrant of remova1'issued by the district judge whose decision is thus reviewed, or under the warrant of the commissioner to await the action of the district judge. The later decisiuns of the circuit courts abundantly establish this proposition. In re Bltell, 3 Dill. 116; In re Doig, 4 Fed. Rep. 193; U. S. v. Brawner, 7 Fed. Rep. 86; U. S. v. Rogers, 23 Fed., Rep. 658;U. S. v. Fowkes. 49 Fed. Rep. 50. This practice was followed in Re Pallisser, 136 U. S. 257, 10 Sup. Ct. Rep. 1034, and approved by, caurtin Hornerv. U. S., 143 U. S. 207, 12 Sup. Ct. Rep. 407. There is good cause tor holding that this should be exercised Jiberally, whenever the judge before whom the questions are raised, on application for a warrant of removal, or on habeas carpus,ls satisfied l, from the face of the indictment, that w.ere such indictment before him for trial, and demurred to; he would quash it., cPQntry 'o(yast extent, .and it ,vould be a gr,aveabuse of the rights of the citizen iCtwhen charged with alleged offenses committed perhaps in someplace 'heJ,lad . never visited, he \,vere renlovable to a from his pome, to answer ta an indictment d;istrjcttho'tisands .of. fatally defective, theory of a comity ",hieh would require ,o£ihe to be' tested only in the particular court inwhichU is pending. Nor shoulc::l themerenoveltY9fthl;l puints rll,isecl, be held to court, befqrewbich comesthequestion of rem Gval, fr<lrtlpMsihg'fifiphtheni, when it ha!! ,no doubt as to' lXpw it wOt,lld plUlS U1>on di,e C8tisewere pellding.before it. If the . is. tbOUg'1t th.at thA of an . should he Qbtamed, such a ,proceedlllg .as this is the more appropriate way in which to raise them, fora decision here adverse to the government is reviewable by appealj but a similar tht!' gOVerfi'ment cannot appeal from a criminal judgment. U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. Rep. 609.

upon,:a warrant issued, by'a U11ited States commissioner here.

':IlAOc;»fBE, Cirouit'Judge.

!

.

.

IN, RE TERRELL.

215

The points of·law arising upon this indictment were all carefully considered by Judge RICKS in his Ophlioo (filed June 11,1892, N. Dist. Ohio) on application for a removal in Re Corning, 51 Fed. Rep. 205 In that opinion I entirely concur; and the district'attorney, apparently admitting its application, has discussed only the questions arising under the fourth count, urging that the learned judge did not fully apprehen8 ,thelwerrnetits of that count, and therefore erred in holding that l}Ocontra«t wasilverred by which the dealers obligated themselves to purchase .exclusively from defendants, aod to sell at the prices It is that the paper set out in the fourth count became a contract 00 May 7, 1892, when the purchasers signed it, and that it is distinctly charged that defendants made such contract "in restraint ,oftrade and commerce among the several states" on May 7,1892. But, though it be conceded that the contract set forth in the indictment was made on that day;'it does not follow that it was a contract in restraint of trade. The only trade which it is pretended was at all curtailed or affected in .any way was the trade of Kelly & Durkee in distillery products behv;een September 23,1891, and May 7, 1892. During that period they bought such products only from certain named dealers in ,a limited numb!3r of states, and !lold Only at prIces the defendants; but they did so because they choseto,-because the offer of a rebate to pur.chasers who' would thus conduct their business was' an inducement operat1ng. UpOll their self-interest. No obligation of any kind con;strained them so to do; during that entire period, certainly, no contract restrained them, for there was no contract in existence. They were entirely freer to buy from whom they pleased, and to sell at any price they chosa. The ,statute does not prohibittheoffering of special inducements shall make,a1l,theirpurcbases from a single C011to such .cern, and', shall sell only !It the prices fixed by .it, even though tp()se inducements be so favorable as to accompli!"h their object. It is not 'the actual restraint of trade (if such be restraint of trade) that is made illegal by the statute, but the making of a contract in restraint of trade, of a ccmtraClt which restrains or is. intended to restrain trade. It is difficult to understand upon what prii).,ciple it C!ln be contended that trade is restrained by a, contract, when no exists. That, when the trade in distillery products which Kelly & Durkee carried on between September 16, 1891, and May 7, 1892, was restrained, (if restrained it were,) there was no contract in existellCle, is conclusively Qn the faGe of the indictment itself, which charges the statutory as committed on May offense, 'to, wit, the making of 7, 1892. "The petitioner should be discharged.

2'16

FEDERAL RE:PORTE:R, \101.

51.

MASTEN fl.

HUNT et al.

(OircuU Oourt. D.Massachusetts. June 29, 1899.) 1.
Lettert\ No. issued July 7. 1885, to Cornelius E. Masten for a firecracker, covers, in claim I, "the match, B; and fuse, C, in cotnbination with the solid pIug,n, and body, A, sUbstantially as set The,specificati()ns make no reference 1io the prior state of the art, and merely state that the invention produces I'a more \1esirable article'""than is now in ordinary use," without particularizing the points constituting the improvement. Hetd, that the presumption of novelty applies, tq the combination as a Whole,' and, in the absence of 'evidence as to the , prior state of' the art. the court has no power to declare· that the mllitch, B, or its was not essential. and to b.old that a like cracker. with a continuous fuse, is an infringement.
PJ.'RNTSPOR lNVlINTIONS-CONSTRUOTION 011 CLAIM-COMBINATION.

S. BAMB.

"

The use of the conjunction "and" between the words "match, B," and "fuse, C," , ,does 1)ot show that tile match and fuse constitute but one element, of which a con" , tinuous fuse'wquld be tlfe equivalent. '

to, con1p]ainl\btfora firecracker. Bill dismissed. The specification arid claim of the patent are as follows:

In Equity. Suit by Cornelius E. Masten against ,Edmund S. Hunt et at for infringement ofletters patent No. 321.833, issued July 7,1885,

it,knownJhat E. Masten, of Boston, in tile county ot Sut. tolk,'state of Massachusetts. have invented a certain new andtlseful improvement ill'ftrecrackers, of which the follOWing is a descriptionsutliciently fuJI, clear,an(Jexll.ct' to enable any person skilled in the art or science to which said invention appertains to make and use the same·. reference beiDI{ had to a9COlllP!inying; drawing, forming a part of. this in which tl,le figure il'l a, longi tudi nalsecti0 ll " · .' . My more especiaUJ' to large firecrackers, orthe class known as and it consist,s iii a novel construction and arrangementof.thepartll, as hereinafter more fUlly set forth and claimed, by which a more desirable article of this character isprodnced than is now in ordinary use. The nature and, operation of the Jl)Jprovement will readily undersfA:>Qd by all such matters from the followi.ngexplanation. its extreme simplicity rendering an elaporate description unnecessary: In the drawing, A represents body of the cracker. B the match, and C the fuse. TMbody is cylindrical 'in form,' and is composed ot layers of strong'. tough paper overlapping each other, and cemented together in the usual manner. The umtchis composed of cotton, powder, and gum, the cotton being saturated with a solqtion of the gum, and then rolled in powder, ,or the POwder rubbed into it and dried. .The fUl'le is composed of a short cord or tlyistof ordinary touch-paper. into the..inn,er end of which .the outer end of match is inserted arid setmred,asseeh at roo The breech plug,D, of the cracker consists of fireclay, and is inserted in the body around, the fuse and match as follows: The·ftIseandmate'h 'having been first united. as shown and described, the fuse is 'inserted in a vertically-arranged hole in the center of au anvil or stake, which fits closely into the lower end. d, of the body. This stake is prOVided with a rabbet or shoulder on which the end. r, of the body rests; the body standing vertically with the match in its center when the stake is inserted. Powdered fire clay, or similar material, of proper, temperament. is then introduced around the match through the open upper end of the body, and rammed down to form the solid plug, D, by means of a hollow ramrod, which is adapted to pass freely over the match. The body is.