The material averments of the declaration may be summarized as follows: The plaintiff is a manufacturer of shoe machinery, and is engaged in manufacturing and selling a machine for sole leveling and for sole laying, known as the "Universal Leveler." The plaintiff has certain interests in patents on these machines, and is the owner of machines manufactured under these patents. The defendant is engaged both in manufacturing and buying shoe machinery, and now owns and controls the shoe machinery necessary to that part of the manufacture of boots and shoes known as bottoming. The defendant "has made divers contracts and agreements with a great number of manufacturers of boots and shoes, to the plaintiff unknown, throughout the several states and in foreign countries." By the terms of these contracts and agreements, such manufacturers are bound to use no machinery except such as is furnished to them by the defendant. By the terms of these contracts and agreements the use by such manufacturers of the plaintiff's machines is prohibited and prevented if such manufacturers use any one or more of the machines furnished by the defendant. These contracts and agreements are contracts in restraint of trade or commerce among the several states and with foreign nations, and are forbidden by the act of Congress of July 2, 1890. And, further, the defendant, contrary to the provisions of this act, is attempting to monopolize a part of the trade or commerce in shoe machinery among the several states, and with foreign nations "by endeavoring by divers means and methods unknown to the plaintiff to compel or induce all manufacturers of boots and shoes throughout the several states, and in foreign countries, to lease or otherwise to acquire shoe machinery from the defendant alone, and to enter with the defendant into contracts and agreements as aforesaid; and by trading and disposing throughout the several states and in foreign countries of certain of its shoe machinery of which it has sole control to the manufacturers of boots and shoes, by means of contracts, agreements, written leases, and other instruments; the terms of which are unknown to the plaintiff, but in which are contained divers agreements and conditions made by and between the defendant and its several customers and lessees substantially as follows, to wit: That the several customers and lessees will thereafter acquire shoe machinery from the defendant alone; that the several customers and lessees will not use any machines acquired from the defendant in any part or process of the manufacture of any boot or shoe if any other part or process of such manufacture shall have been done or performed by or upon any machine not acquired from the defendant," which "contracts, agreements, written leases, and other instruments the defendant, by divers means and methods unknown to the plaintiff, has compelled such manufacturers to execute and the agreements and conditions thereof and therein to observe and keep."

The declaration then alleges that these manufacturers constitute the sole market for the sale of the plaintiff's machines. The declaration. further alleges that, by reason of these contracts, agreements, written leases, and other instruments, customers are prevented from buying or leasing the plaintiff's machines, that by these means the plaintiff has been deprived of the right to an open market, and prevented from

selling or leasing his property, and that thereby his business has been destroyed, and his property rendered of no value.

It will be observed that the contracts in restraint of trade set forth in the declaration are described as "divers contracts and agreements with a great number of manufacturers of boots and shoes throughout the several states and in foreign countries," by the terms of which such manufacturers are bound to use no shoe machinery except such as is furnished by the defendant, and are prohibited from using the plaintiff's machines if they use the machines furnished by the defendant. It will also be observed that the attempt to monopolize trade or commerce set forth in the declaration is described as endeavoring, "by divers means and methods unknown to the plaintiff," to compel all manufacturers to acquire shoe machinery from the defendant alone, or, "by means of contracts, agreements, written leases, and other instruments," to acquire shoe machinery from the defendant alone, and not to use any machines acquired from the defendant if any other part or process in shoe manufacture shall be done on any machine not acquired from the defendant.

It is manifest that these averments are of the most general character. No specific reference is made to any contract or contracts in restraint of trade entered into by the defendant, and no definite description is given of the terms of such contract or contracts. The declaration is also wanting in any definite description of the acts or contracts which constitute an attempt to monopolize trade or commerce. Presumably the defendant has made many contracts with manufacturers, and, before being required to plead, it is entitled to know upon what contracts the plaintiff relies, and the nature of those contracts. So, also, the defendant is entitled to have pointed out the substantial facts upon which the plaintiff bases his allegation of an attempt to monopolize trade or commerce; and, if this attempt to monopolize is founded upon contracts or leases, the material parts of these contracts or leases should be set forth in the declaration.

Again, the declaration alleges that the plaintiff is the owner of certain interests in patents relating to shoe machinery. It also alleges that the defendant owns and controls certain shoe machinery. These and other allegations in the declaration indicate that the defendant's control of shoe machinery is also based upon patents. If the defendant's contracts with manufacturers are based upon patent rights, this fact should appear, because contracts with respect to patents are, as a general rule, outside the doctrine of restraint of trade, both at common law and under the federal statute.

In my opinion, the averments in this declaration are too uncertain, vague, and indefinite to enable the defendant properly to prepare its defense, or to enable the court to determine whether the alleged offenses are within the statute.

Under the act of July 2, 1890, it is not sufficient to frame the declaration in the words of the statute. The statute does not set forth the elements of the offenses which are forbidden; and, further, there may be contracts in restraint of trade between the states or with foreign countries, and attempts to monopolize such trade or commerce, which are not within the statute. These circumstances make it imperative

CILLEY V. UNITED SHOE MACH. CO.

that the substance of the contracts in restraint of trade, or the substantial facts which constitute the attempt to monopolize, should be set forth in the declaration. These principles are well settled by the authorities.

In the case of In re Greene (C. C.) 52 Fed. 104, 111, Judge Jackson said:

"The act does not undertake to define what constitutes a contract, combination, or conspiracy in restraint of trade, and recourse must therefore be had to the common law for the proper definition of these general terms, and to ascertain whether the acts charged come within the statute."

In United States v. Patterson (C. C.) 55 Fed. 605, Judge Putnam said:

"This statute is not one of the class where it is always sufficient to declare in the words of the enactment, as it does not set forth all the elements of a crime. A contract or combination in restraint of trade may be not only not illegal, but praiseworthy; as, where parties attempt to engross the market by furnishing the best goods, or the cheapest. So that ordinarily a case cannot be made under the statute unless the means are shown to be illegal, and therefore it is ordinarily necessary to declare the means by which it is intended to engross or monopolize the market. And by the well-settled rules of pleading it is not sufficient to allege the means in general language, but, if it is claimed that the means used are illegal, enough must be set out to enable the court to see that they are so, and to enable the defense to properly prepare to meet the charge against it."

In the case of Rice v. Standard Oil Company (C. C.) 134 Fed. 464, 465, the court said:

"It is apparent that mere proof that the defendant has entered into a contract or engaged in a combination or conspiracy in restraint of trade or commerce among the several States will not be sufficient to support a cause of action under the seventh section, for there must, in addition thereto, be proof that the plaintiff has, by reason thereof, sustained damage.

In his declaration, therefore, the plaintiff must aver not only facts showing such a contract or combination or conspiracy as is declared by the act to be unlawful, but facts showing that by reason of such unlawful thing he has been injured in his business or property."

In Bement v. National Harrow Company, 186 U. S. 70, 92, 22 Sup. Ct. 747, 756, 46 L. Ed. 1058, the court said:

"That statute clearly does not refer to that kind of a restraint of interstate commerce which may arise from reasonable and legal conditions imposed upon the assignee or licensee of a patent by the owner thereof, restricting the terms upon which the article may be used and the price to be demanded therefor. Such a construction of the act we have no doubt was never contemplated by its framers."

See, also, In re Corning (D. C.) 51 Fed. 205; United States v. Nelson (D. C.) 52 Fed. 646; Otis Elevator Co. v, Geiger (C. C.) 107 Fed.

CASE v. SMITH, LINEAWEAVER & CO.

(Circuit Court, E. D. New York. March 30, 1907.)

1. PROCESS-VALIDITY OF SERVICE-NONRESIDENTS.

A defendant, who, knowing that a possible cause of action exists against him in a certain jurisdiction, voluntarily goes into such jurisdiction on business with third parties, takes the risk of being there discovered and served with process; and such service is not invalidated because the plaintiff had knowledge that defendant would come within the jurisdiction and arranged to be notified when he did come, where no trick or device was resorted to for the purpose of inducing his coming.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Process, § 70.] 2. REMOVAL OF CAUSES-PROCEDURE AFTER REMOVAL-FOREIGN CORPORATIONS -VALIDITY OF SERVICE-DETERMINATION.

Where an action against a foreign corporation has been removed from a state to a federal court, the question of the validity of the service of the summons and complaint on the defendant is to be determined according to the rules and practice of the federal courts, and not by the law of the state.

[Ed. Note. For cases in point, see Cent. Dig. vol. 42, Removal of Causes, § 250.]

3. CORPORATIONS-FOREIGN CORPORATIONS-ACTIONS-PROCESS-SERVICE-VA

LIDITY.

A federal court cannot acquire jurisdiction over a foreign corporation which is not doing business in the state of suit and has no property within such state with relation to which the suit is brought, by the service of process on an officer who is casually within the state; and the fact that the corporation maintains an office room wihin the state of suit, in charge of a salaried sales agent, who takes orders for goods to be accepted and filled by the corporation at its home office, does not constitute a doing business within the state such as to validate the service.

[Ed. Note. For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 2613, 2626.

Service of process on foreign corporations, see note to Eldred v. American Palace Car Co., 45 C. C. A. 3; Cella Commission Co. v. Bohlinger, 78 C. C. A. 473.]

On Motion to Set Aside Service of Summons.

Fox, Pierce & Rowe, for plaintiff.

Thomas Mills Day, for defendant.

CHATFIELD, District Judge. This action was begun originally in the Supreme Court of the state of New York. The alleged cause of action is for breach of contract for the delivery of coal by the defendant in Pennsylvania to the plaintiff at Port Reading, N. J.; the contract having been entered into, as is shown by the affidavits, in Philadelphia, in the state of Pennsylvania. The plaintiff is a resident of the Eastern district of New York, and had obtained, prior to the commencement of the action, by an assignment, all the right, title, and interest in the contract above referred to and any cause of action which might arise therefrom. The defendant company appeared specially for the purpose of removing the case into the United States court, which was done upon the ground of diversity of citizenship, the amount in dispute appearing to be more than $2,000; and the papers were filed in the United States Circuit Court for this district on the 6th

day of February, 1907. The defendant company then filed a special notice of appearance, for the purpose of moving to set aside the service of summons upon the said defendant, and obtained an order to show cause why such relief should not be granted, and extending the time of the defendant to plead generally until after the court should dis- . pose of the motion upon the return of the said order to show cause. The facts as to the service of the summons and complaint upon the defendant are not disputed, and appear to be as follows:

The defendant corporation has its home office and place of business in the state of Pennsylvania. It maintains at No. 1 Broadway, in the borough of Manhattan, New York City, an office room, where a sales agent, working upon a salary, negotiates for the purchase and sale of coal, to be filled by the direction of the Philadelphia office and by shipments from collieries in Pennsylvania, West Virginia, and Maryland. No stock of coal was kept within the state of New York. No property was invested in the state of New York, beyond the furniture in the said office, and no officer or director of the company was within the state of New York, except the president under the circumstances hereinafter set forth. The corporation had not obtained permission, under section 16 of the Corporation Law of the state of New York (Laws 1892, p. 1806, c. 687), to do business within that state, and had not designated any person to accept service therefor. On the 20th day of November, 1906, Henry H. Lineaweaver, the president of the defendant corporation, came from Philadelphia to New York, and was there served with the summons and complaint by one of the attorneys for the plaintiff. Mr. Lineaweaver's presence within the state of New York happened as follows: A New York man, by the name of Crawford, was indebted in a large amount to various creditors, among whom were this defendant (Smith, Lineaweaver & Co., of Philadelphia) and McTurk & Co., of Philadelphia. The attorneys for Mr. Case in the present action, while endeavoring to serve Smith, Lineaweaver & Co., were also representing McTurk & Co. in the collection of the debt from Crawford. A brotherin-law of Crawford, one Dr. Diller, through a family arrangement, was taking up Crawford's debts and obtaining receipts and releases therefor. The attorneys for the plaintiff in this action knowing of the debt held by Smith, Lineaweaver & Co. against Crawford, and knowing of the arrangement to pay the Crawford debts, because of the claim of their own client McTurk & Co., obtained from Dr. Diller and his attorneys information as to the day and hour upon which Mr. Lineaweaver would call in person upon Dr. Diller to receive payment of the Smith-Lineaweaver claim against Crawford. information as to Mr. Lineaweaver's visit was given to the attorneys for the plaintiff herein as the sequel to an arrangement which had been previously made between said attorneys and the attorney for Dr. Diller, by which arrangement a letter was to be sent to Smith, Lineaweaver & Co., on behalf of Dr. Diller or of the Crawford family, which letter was similar to that being sent to the various Crawford creditors, which letters requested a representative to call in person and receipt for the payment. Mr. Lineaweaver thereupon called upon Dr. Diller at the time appointed, at his office in New York