Index-Digest 11. Same-Improper Prayer Does Not Justify Dismissal. The fact that a bill contains a prayer for relief, which the court was without power to grant under the Clayton Act, does not require its dismissal, where, aside from those portions of the prayer, it charges a combination to commit unlawful acts unduly obstructing the course of trade. Ib. 835 12. Same-Order for Special Examiner Set Aside in Suit to Enjoin Strikers. Under equity rule 46 (198 Fed. xxxi, 115 C. C. A. xxxi), providing that testimony shall be taken in open court, except as otherwise provided by statute or rule, rule 59 (198 Fed. xxxv, 115 C. C. A. xxxv), providing that reference to a master shall be the exception, and not the rule, and Clayton Act, section 13, providing that in suits by the United States, subpoenas for witnesses may run into any judicial district, an order appointing a special master in a suit to enjoin striking railway employees from interfering with interstate commerce and with the transmission of the mails will be set aside, the case set for trial, and depositions taken in accordance with equity rule 47 (198 Fed. xxxi, 115 C. C. A. xxxi). Ib. 842 13. Refusal to Perform Contracts of Service, 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 14. May Enjoin Interference with Employees of Interstate Carrier.— Under its power to enjoin acts which restrain interstate commerce a Federal court may enjoin acts which may interfere with the working of numbers of the employees of an interstate carrier during a widespread strike. U. S. v. Taliaferro, 290 F. 220. 984 15. When Consideration Inadequate, Court Not Justified in Affirming Transaction. When it appears from the evidence in a suit to set aside a sale that the consideration was inadequate, the court is not justified in affirming the transaction merely because no greater amount is bid upon offering the property at public auction. Geddes v. Anaconda Copper Mining Co., 254 U. S. 601. 164 16. Same-When Court Should Have Set Sale Aside. In a suit by minority shareholders to set aside for inadequacy of consideration a sale of all the property of their corporation to another corporation for a price paid in shares of the latter's stock, held that, under the pleadings, the court, having found the price inadequate, should have set the sale aside, Index-Digest and was without power to depart from the parties' contract by selling the property at auction for a cash price found adequate. Ib. 164 17. Has Power under Sherman Act, in Dissolving Combination, to Disregard Legal Effect of General Mortgage. The court has power under the Sherman Antitrust Act, in dissolving a combination of two corporations, to disregard the letter and legal effect of a general mortgage of their properties and of the bonds secured thereby, in order to achieve the purpose of the act. Continental Ins. Co. v. U. S., 259 U. S. 171. 602 18. Same-In Dissolving Combination, Court May Free One from Lien of Mortgage. In this case, the general mortgage of the Reading Company and the Philadelphia & Reading Coal & Iron Company gave notice on its face of the unlawful union and purpose of which it was the necessary instrument, and those who took the bonds thus secured, although they may have done so innocently, relying on legal advice and surrendering valid underlying liens created before the Sherman Act, hold them subject to the judicial power to free the two properties from the consolidating tendency of the mortgage by relieving one of them from the lien and substituting a judicial equivalent in protection of the bondholders. Ib. 603 19. Same-How Decree Should Modify Liability under the General Mortgage. The decree in this case should modify the liability under the general mortgage and bonds so that the obligation of each mortgagor company upon the bonds, and the lien upon its property, shall be reduced to an amount proportionate to the ratio of the value of its property subject to the mortgage to the value of all the property so mortgaged, and should make specific provisions for foreclosure of the resulting separate liens in case of default. Ib. 604 20. Same-In Modifying, How Injury to Bondholders To Be Compensated. Any injury to the security caused by this modification of the terms of the debt and mortgage may be compensated by such payment to the bondholders, by either or both mortgagor companies, as may seem equitable and convenient. Ib. 604 21. On Remand after Reversal, Authorized to Conform Decree to changed Legal Conditions:-In suit to compel relinquishment of control of one railroad by another as in violation of the Sherman law and the Pacific Railroad acts decree for de fendant was reversed by the Supreme Court on the ground that such control violated the Sherman Act, but the decision on reversal made no mention of and did not affect the right Index-Digest of the controlling railroad to apply to the Interstate Commerce Commission, under Interstate Commerce Act, section 5, paragraph (2), as amended by transportation act, 1920, to acquire control of the other railroad, and after rendition of such decision the controlling road made such application and was granted the right by the Interstate Commerce Commission to acquire such control, and proceeded to do so by lease authorized by the commission. Held, on remand to the District Court, that the decree of that court would recognize as valid the existing lease arrangement as authorized by the commission, and the railroads would be relieved of the operation of the Sherman law so far as necessary to enable them to do anything authorized or approved by the commission. U. S. v. Southern Pacific Co., 290 F. 450. 1010 22. Upon Appeal from Decree under Expedition Act, May on Its Own Motion, Require Compliance with Decree.-Upon an appeal under the expedition act of February 11, 1903, as modified by Judicial Code, section 291, from a decree entered under a mandate of this court directing the dissolution of a combination in restraint of interstate trade, this court has jurisdiction, of its own motion and independently of the assignments of error, to determine whether the mandate has been properly complied with and to acquire such compliance. Continental Ins. Co. v. U. S., 259 U. S. 165. COURT OF EQUITY. 597 7. When Will Not Grant Issue for a Jury Trial, before hearing. It is the established practice, if not a binding rule, that a court of equity will not grant an issue for a jury trial on motion before hearing, unless on consent. U. S. v. Railway Employees, 286 F. 235. 842 2. Jurisdiction of Not Affected by Error in Subpœna as to Time of Return.-Objection to jurisdiction of a Federal court of equity because of an error in the subpoenas issued, as to the time for their return by the marshal, held ineffective, under Rev. Stat. section 955, and equity rule 19 (198 Fed. xxiii, 115 C. C. A. xxiii), which permit amendment of such subpœnas, and where the rights of the defendants have not been prejudiced. N. Y., N. H. & H. R. Co. v. American Federation of labor, 228 F. 591. 922 3. Power of Court of, to Modify Decree.—A court of equity, which entered a decree in a suit brought by the United States under Sherman Act, section 4, for dissolution of a combination as in restraint of trade, by which decree it authorized the creation of two new corporations to take over certain of the business of the combination to insure competition, making such corporations parties to the decree, and retaining juris Index-Digest diction "for the purpose of making such other and further orders and decrees as may become necessary for carrying out the plan herein set forth," held to have power to modify the decree on petition of one of such corporations as affecting that corporation, where no revision is made on the merits or with respect to any defendant concluded thereby, but where the modification is consistent with the purpose for which jurisdiction was reserved. U. S. v. DuPont Co., 273 F. 873. 273 CRIMINAL ACTS. 1. Will Be Enjoined at Suit of Private Party. The fact that a threatened invasion of a complainant's rights will constitute at the same time an offense against the criminal laws is no bar to relief by injunction at the instance of a private party. Charleston Dry Dock Co. v. O'Rourke, 274 F. 813. 290 CRIMINAL CONTEMPTS. 1. Not "Crimes or Offenses," within Section 53, Judicial Code.Criminal contempts are not "crimes or offenses" within Judicial Code, section 53, requiring all prosecutions for crimes or offenses to be had within division of district where they were committed, but are only quasi crimes or offenses. MeCourtney v. U. S., 291 F. 499. 1033 DAMAGES. 1. May Be Recovered, under Sherman Act, by Person Not Engaged in Interstate Commerce.-A plaintiff, who has been injured by restraints imposed on interstate commerce by defendants, may recover damages under the Sherman Act, though plaintiff himself is not engaged in interstate commerce. Sullivan v. Associated Bill Posters, 272 F. 328. 256 2. Same.-To Recover, There Must Be Direct Relation between Restraint and Injury.-Before a plaintiff can recover treble damages under thẻ Sherman Act, there must be a direct relation between the restraint on interstate commerce complained of and the injury to plaintiff. 256 Ib. 3. In Action under Sherman Law, Must Be Proved by Facts, Not by Conjectures.-To recover under Sherman Act, section 7, plaintiff must show damage to him by defendant's illegal acts by facts from which its existence is logically and legally inferable, not by conjectures or estimates. Keoyh v. C. & N. W. Ry. Co., 271 F. 447. 217 4. Conspirator Not Entitled to Recover from Coconspirators.—A retail dealer who participated in a conspiracy under the Sherman Act, and benefited thereby is not entitled to recover damages under section 7 of such act by reason of certain acts Index-Digest of the defendant which he did not initiate, but from which he received benefits, since all participants in a conspiracy are conspirators, whether the part they play is great or small. Eastman Kodak Co. v. Blackmore, 277 F. 700. 502 5. Same-Not Recoverable for Refusal to Sell to Retail Dealer, Where Such Refusal was within the Choice of the Seller.No damage can flow from a lawful business or commercial transaction in which a person or corporation had a right to engage, or from the refusal to sell to a retail dealer where such refusal was, as matter of law, wholly within the power and voluntary choice of the seller. Ib. 499 6. Same-Retail Dealer Participating in Unlawful System, Can Not Recover.-A retail dealer participating in an unlawful system of doing business can not, in the absence of coercion, recover damages under Sherman Act, section 7, as amended by Clayton Act, section 4, permitting recovery by persons injured by violation of antitrust laws though he claims that prior injury done in not selling him goods was a continuing injury, and that he had never recuperated from such injury, and that it reflected itself in the amount of business done during the time for which damages were sought. Ib. 499 7. Same-Profits in Illegal Business, Not Standard to Compare for Later Period.-In an action by retailer under Sherman Act, section 7, as amended by Clayton Act, section 4, to recover damages occasioned by a violation of antitrust laws resulting in decreased profits after the year 1908, based on defendant's refusal to sell goods to plaintiff from 1902 to 1905, profits made by plaintiff and defendant while engaged in an illegal restrictive system from 1899 to 1902 could not be set up as a standard with which to compare the profits of the period after 1908. Ib. 501 8. Same-Profits during One Period, Not Standard for Lost Profits in Another.-In an action under the Sherman Act, section 7, as amended by the Clayton Act, section 4, to recover damages for profits lost after the year 1908, arising out of injury done by refusal of defendant to sell goods to plaintiff between 1902 and 1905, profits made by plaintiff from 1899 to 1902, and from 1905 to 1913, at which time plaintiff was in pari delicto, would furnish no standard of comparison, and damages would be too remote and speculative. Ib. 501 9. For Loss of Profits, as Result of Combination, How Not To Be Measured.-Damages for loss of profits by a retail dealer in certain articles, resulting from an illegal combination, between the manufacturer and wholesale dealers in such articles which prevented him from obtaining the same, can not be |