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Index-Digest

8. Motion of Party to a Suit, No Ground for Punishing Stranger

to Suit for Criminal Contempt.-Motion of a party to a civil suit is not a basis for punishment of a stranger to the suit for a criminal contempt. McCauley v. First Trust & Savings Bank, 276 F. 118. 333

9. On Proceeding for, Actual Knowledge of Injunction Held Shown. In contempt proceedings against a member of a labor union, which had been restrained from intimidating, assaulting, or threatening persons employed in operating merchant ships of the United States, evidence held to show his actual knowledge of the injunction order and his violation thereof, by assaulting a waiter on one of such vessels, who had turned in his union card. Forrest v. U. S., 277 F. 875. 526 CONTINUANCE.

1. On Application for Temporary Injunction, When Properly Denied. Where, on application for temporary injunction against an unlawful conspiracy by mine operators and mine owners to destroy competition by enforcing the unionization of mines in another State, defendant, moving for time to introduce explanatory evidence as to expenditure of money in the mining fields of such other State, refused to accede to the condition that it preserve the status quo, the application was properly denied. Borderland Coal Corp. v. United Mine Workers, 275 F. 874. 297

CONTRACT.

1. Rule of Reason To Be Applied in Construction of.-In determining whether a contract is in violation of Sherman Act, unless the contract is on its face violative of the act, the inquiry must be extended to the circumstances and conditions under which it was made, including the relationship of the parties and their relation to the subject matter dealt with, and its relation to the general public. Fosburgh v. California & Hawaiian Sugar Ref. Co., 291 F. 31. 1015

2. Same-Trader May Restrict Sales to Customers as to Quantity.— A trader or manufacturer engaged in private business, not of a public or quasi public character, may sell to whom he pleases, and may restrict his sales to a customer as to quantity, if his contracts are not in violation of any law made for the protection of the public. Ib. 1023 3. Same-For Sale of Sugar, Held Not in Violation of Sherman Act. Contracts by the California & Hawaiian Sugar Refining Company for sale to a candy manufacturing company of 1,250 tons of Java white sugar, from a quantity bought by the refining company to supplement its own production, held not invalid as in violation of Sherman Act, section 1, because of a provision that "buyer agrees to use these sugars

Index-Digest

only for his own manufacturing needs and under no circumstances to resell same," the contracts having been made in 1920, when the Lever Act was still in force and there was a shortage of sugar, and it appearing that the provision was inserted at the suggestion of Government officers having to do with the enforcement of food regulations for the purpose of preventing hoarding for speculative purposes, and to confine the sale of Java white sugar, which was not popular for domestic use, so far as possible to manufacturers, and leaving a greater quantity of the better sugars for domestic use. Ib. 1014

CONTRACT OF SALE.

1. Of Acetylene Gas in Tanks, Held to Retain Title in Tanks in Seller.-Delivery by complainant to consumers of acetylene gas in tanks, under contracts expressly reserving title to the tanks and providing that complainant shall keep filled tanks in reserve and exchange them for empty tanks when returned without charge, except for the contents, held to effectively retain title to the tanks in complainant. Auto Acetylene Light Co. v. Prest-O-Lite Co., 276 F. 540. CONTRACT OF SERVICE.

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1. Refusal to Perform, Not Enforced by Court.-The right of a person to refuse to serve, even though under a binding contract to do so, is part of the constitutional personal liberty of the land, and the failure or refusal to perform a contract of service may create a liability in damages, but no court will enforce the service. Birmingham Trust, etc. Co. v. Atlanta, etc. Ry Co., 271 F. 744. 246

COPYRIGHT.

1. No Defense to Suit for Infringement that Publishers Have Formed Unlawful Combination.-It is no defense to a suit for infringement of copyright of musical selections that the authors, composers, and publishers have formed an unlawful combination, in violation of the Sherman Act, the remedies under the act being clearly defined and exclusive. Harms v. Cohen, 279 F. 280. 545

COPYRIGHT ACT.

1. What Constitutes “Performance for Profit," within Meaning of.— The playing of music in a motion-picture theater to which a charge for admission was made was a "performance for profit," within the meaning of the copyright act, though the music was selected because fitting and appropriate to the action of that portion of the motion picture at that precise instant being shown upon the screen. Harms v. Cohen, 279 F. 278. 543 12822-24-VOL 969

CORPORATION.

Index-Digest

1. Engaged in Commerce, While Changing from an Old to a New Mill. Where a corporation purchased a going business in the manufacture and sale of sheet aluminum, and engaged in such business, it did not cease to be engaged in commerce, within Clayton Act, section 7, by temporarily suspending the rolling of sheets, while changing from an old mill to a new one. Aluminum Co. of America v. Federal Trade Commission, 284 F. 408. 773 2. In Liquidating, Common and Preferred Stockholders Share Alike in Assets. It is a general rule that stockholders, common and preferred, share alike in the assets of a liquidating corporation, if the preference be only as to dividends. Continental Ins. Co. v. U. S., 259 U. S. 181.

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3. When Owners of Majority of Capital Stock in, May Sell All of Its Property. When the business of a purely private corporation has proved so unprofitable that there is no reasonable prospect of conducting it without loss, or when the corporation has not, and can not obtain, the money necessary to pay its debts and to continue its business, even though it may not be insolvent in the commercial sense, the owners of a majority of the capital stock, exercising their discretion in good faith, may authorize a sale of all the corporate property for an adequate consideration, and distribute among the shareholders the net proceeds after payment of debts, even over the objection of the minority shareholders. v. Anaconda Copper Mining Co., 254 U. S. 596. 4. Same-When Sale Is Otherwise Valid, Sale Not Set Aside Because Consideration in Shares of Other Stock.-Such a sale, if otherwise valid, will not be set aside upon the ground that the consideration is not money but shares in another corporation, if the shares received as the consideration have such an established value in a general market that the shareholder receiving them may convert them at once into a cash consideration adequate for his interest in the corporate property sold. Ib. 160

Geddes 158

5. Same-Upon Suit by Minority Stockholders, to Set Aside Sale of Property of, upon Whom Burden Falls to Show Fairness of Sale. Where the minority shareholders of a corporation seek to set aside a sale of its property to another corporation negotiated and made by boards of directors having a member in common, the burden is upon those who would maintain the transaction to show its entire fairness and the adequacy of the consideration. Ib. 160

Index-Digest

COUNTERCLAIM.

1. In Suit under Sherman Act, Must Be Ancillary to Main Controversy, in Absence of Diverse Citizenship.—In suit under the antitrust laws, in which there is no diverse citizenship, counter-claim of which there is no independent Federal jurisdiction must be ancillary to the main controversy, as equity rule 30 (201 Fed. v, 118 C. C. A. v) can not extend constitutional jurisdiction of District Court. Moore v. New York Cotton Exchange, 291 F. 682 1038 2. Same-Test of Whether Counterclaim Is Ancillary, Stated.— In determining whether counterclaim of which there is no independent Federal jurisdiction is ancillary to the main controversy, the question is whether it is necessary to complete disposition of subject matter of the bill and protection of the rights involved, if the defendants are correct, that the counterclaim should be entertained. Ib. 1038

3. Same-In Suit to Enjoin Refusal of Quotations, Counterclaim to Enjoin Purloining of Quotations, Held Ancillary.—In suit against cotton exchange and telegraph companies to enjoin refusal to furnish plaintiff quotations of cotton sales as in restraint of trade, where defendants assert right to withhold quotations, counterclaim for injunction restraining plaintiff from purloining quotations from defendants' customers held ancillary to the main controversy and within court's jurisdiction. Ib. 1038

COURT.

1. Power to Punish for Contempt Is Inherent in.-The power to punish for the willful violation of an order duly and properly made is inherent in the courts independent of legislation. In re Atchison, 284 F. 606.

813

2. Same-Powers of Inferior Courts Can Not Be Abridged by Congress. Under Constiution, article 3, section 1, providing that the judical power of the United States shall be vested in one Supreme Court, and "in such inferior courts as the Congress may from time to time ordain and establish," and section 2, as to extent of the judical power, the inferior courts, when so ordained and established, are not the creatures of Congress subject to have their inherent rights abridged or taken away by Congress. Ib. 814

3. Has Inherent Power over Its Own Process.-Courts of law have inherent power over their own process, to prevent abuse of discretion and injustice, and in the exercise of that power may disregard the secrecy of grand jury proceedings whenever the ends of justice require it. In re National Window Glass Workers, 287 F. 224. 890

Index-Digest

4. Same-Process to Compel Attendance of Witnesses before Grand Jury, that of Court.-The process by which witnesses are compelled to attend a grand jury investigation is the process of the court, and not of the grand jury or the district attorney, and the court has a supervisory duty of seeing that its grand jury and its process are not abused or used for purposes of oppression and injustice. Ib. 891 5. Will Take Judicial Notice of Historical Facts.-Courts will take judicial notice of historical facts. U. S. v. Alexander & Reid Co., 280 F. 925.

560 6. When Finding of Lower Courts Will Be Accepted by Supreme Court. Unless clearly erroneous, a concurrent finding of the District Court and the Circuit Court of Appeals that the consideration for the sale was inadequate will be accepted by this court. Geddes v. Anaconda Copper Mining Co., 254 U. S. 600. 162 7. Same-When Federal Question Decided Adversely, Jurisdiction of Continues to Decide Other Questions in Case.-Although the Federal question which was the basis of the jurisdiction of the District Court became settled adversely to the plaintiff's contention by decisions of this court rendered in other cases after this suit was begun, the jurisdiction nevertheless continues to decide the other questions in the case. Ib. 156 8. May Punish Violation of Injunction, Committed in Another District. Clayton Act, section 22, giving a person charged with contempt “in all cases within the purview of this act" the right to a trial by jury, does no apply to violations of an injunction restraining interference with receivers appointed by the court, which are not within the purview of the act. McGibbony v. Lancaster, 286 F. 130. 822

9. May Enjoin Parties in District from Conspiring against Trade in Another District.-The Federal District Court in Indiana may enjoin the unlawful activities of parties in Indiana under the jurisdiction of the court in attempting to further a conspiracy and destroy the competition of a company in another State and district. Borderland Coal Corp. v. United Mine Workers, 275 F. 874. 297 10. Can Entertain Motion to Dismiss Action Any Time before Hearing. Under equity rule 29 (198 Fed. xxvi, 115 C. C. A. xxvi, abolishing demurrers and pleas, and requiring defense either by motion to dismiss or by answer, the court can entertain a motion to dismiss for want of equity apparent on the face of the bill at any time before hearing, but the rule contemplates that it shall be made before the answer is filed, since it provides for answer if the motion is denied. U. S. v. Railway Employes, 286 F. 230.

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