estopped as against the Wynkoop, Hallenbeck, Crawford Company. In reviewing the action of the referee the District Court disapproved the same, and, on June 22, 1911, directed that the claim of Gaines, in so far as it represented demands against the bankrupt which were in existence at the time the representations were made by Gaines, should be postponed to the claim of the intervenor. Neither party appealed from this order.

Thereafter, on August 3, 1911, the referee made an order that the dividend on the sum of $199,000 of the claim of Gaines, being the portion representing the indebtedness at the time of the misrepresentations, should be paid to the intervenor. On petition to review, this order was affirmed by the District Court. Gaines then carried the matter, by both appeal and petition for review, to the Circuit Court of Appeals, complaining of the mode of distribution which had been adopted to execute the decree of June 22, 1911. That the controversy was thus limited and that no issue was raised or contention made concerning the decree of June 22, 1911, itself, which had become final, is certain. Thus, in August, 1912, in announcing its decision, the Circuit Court of Appeals thus stated the controversy before it: "There is no occasion to go back of the order of June 22, 1911, or to inquire into its propriety. No appeal was taken or petition to review filed, and appellant here concedes that it lays down the rule for distribution in this case, and announces that he has no criticism to make as to the propriety of that rule. That is to say, although in his opinion the facts did not warrant the adoption of such a rule, he is willing to accept it and let the case be disposed of in conformity to its terms."

The court then considered whether the distribution ordered by the referee and approved by the District Court accorded with the order of June 22, 1911, and held that it did not, and directed distribution of $12,250, the

balance of dividends in the hands of the trustee, in accordance with views expressed in the opinion. 196 Fed. Rep. 357. The Wynkoop Company thereupon prosecuted this appeal, and a motion has been made to dismiss the same for want of jurisdiction.

That the motion to dismiss must be granted is manifest from the statement we have made. Whatever may have been the nature of the original controversy presented by the intervention of the Wynkoop Company, the acquiescence of both parties in the order of June 22, 1911, settled that controversy, and the questions remaining were purely administrative, concerning as they did merely the carrying out of the order according to its true intent and purpose. This being the case, the question whether the order of June 22, 1911, was correctly interpreted by the referee and the District Court in the distribution directed by the subsequent administrative order is not one concerning an allowance or rejection of a claim within § 256 of the Bankruptcy Act, but is a matter arising in the administration of the bankrupt estate, which we are not empowered to review.

Appeal dismissed.

VIRTUE v. CREAMERY PACKAGE MANUFACTURING COMPANY AND OWATONNA COMPANY.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

No. 80. Argued December 9, 10, 1912.-Decided January 20, 1913.

To sustain an action under § 7 of the Sherman Act a necessary element is coöperation by some of the defendants in a scheme involving monopoly or restraint of interstate trade and causing the damage complained of.

227 U.S.

Argument for Plaintiff in Error.

The owner of a patent has exclusive rights of making, using and selling, which he may keep or transfer in whole or in part.

Patents and patent rights cannot be made a cover for violation of law; but they are not so used when only the rights conferred by law are exercised.

Patent rights can be protected by a party to an illegal combination. While the combined effect of the separate acts alleged to have made the combination illegal must be regarded as a whole, the strength of each act must be considered separately.

Assertion of patent rights may be so conducted as to constitute malicious prosecution; but failure of plaintiff to maintain the action does not necessarily convict of malice.

Mere coincidence in time in the bringing by separate parties of suits for infringements on patents against the same defendant held, in this case, not to indicate a combination on the part of those parties to injure the defendant within the meaning of § 7 of the Sherman Anti-trust Act. A contract by which a manufacturer of a patented article appoints another who does not manufacture or sell like articles, his exclusive agent for the output of the factory, held in this case not to violate the Sherman Act.

Where an action under § 7 of the Sherman Act was tried in the Circuit Court and argued in the Circuit Court of Appeals on the basis of coöperation between the defendants, this court will not consider a contention raised for the first time that one of the defendants was itself a combination offensive to the statute.

In this case it does not appear that the contracts between the defendants were made for the purpose of injuring the plaintiff, and both courts below having so held this court also so holds.

179 Fed. Rep. 115, affirmed.

THE facts, which involve the construction of § 7 of the Sherman Anti-trust Act and what constitutes an illegal combination thereunder, are stated in the opinion.

Mr. Harlan E. Leach, with whom Mr. James F. Williamson and Mr. James A. Tawney were on the brief, for plaintiff in error:

It is not necessary to prove the commission of any tort, wrongful act or crime on the part of defendants, aside from what is prohibited by the terms of the Sherman Anti-trust Act, in order to make the defendants liable

Argument for Plaintiff in Error.

227 U.S.

in damages to the plaintiffs in this action. Loewe v. Lawlor, 208 U. S. 274; Montague v. Lowry, 193 U. S. 38; Chattanooga F. & P. Works v. Atlanta, 203 U. S. 390; Jayne v. Loder, 149 Fed. Rep. 21; Wheeler-Stenzel Co. v. National Window Glass Ass'n, 152 Fed. Rep. 864, S. C., 10 L. R. A. (N. S.) 972; Penn. Sugar Co. v. Am. Sugar Co., 166 Fed. Rep. 254; People's Tobacco Co. v. Am. Tobacco Co., 170 Fed. Rep. 396; Monarch Tobacco Works v. Am. Tobacco Co., 165 Fed. Rep. 774; Swift v. United States, 196 U. S. 395.

The act of combining the concerted action-is unlawful in itself, and is the basis of a cause of action for damages. Loewe v. Lawlor; Swift v. United States; Penn. Sugar Co. v. Am. Sugar Co.; Jayne v. Loder, supra; Aikens v. Wisconsin, 195 U. S. 194; Ellis v. Inman, 131 Fed. Rep. 182.

It is not necessary that the act which caused the damage should be anything in itself prohibited by the Antitrust Act. It is not necessary that it be a step in the formation of the "contract, ""combination" or "conspiracy" or a step in the attempt to secure monopoly. It is sufficient if such an act originated in, or was directly associated with, the motives which were the cause of the contract, combination, conspiracy or attempt to secure monopoly. Chattanooga Works v. Atlanta, 203 U. S. 390.

Plaintiffs in error were engaged in interstate trade and commerce. Loewe v. Lawlor; Montague v. Lowry; Penn. Sugar Co. v. Am. Sugar Co., supra; Shawnee Compress Co. v. Anderson, 209 U. S. 423.

Every agreement or transaction whose direct effect is to destroy or prevent competition is in restraint of trade. Northern Securities Co. v. United States, 193 U. S. 197; United States v. American Tobacco Co., 164 Fed. Rep. 700; Shawnee Compress Co. v. Anderson, 209 U. S. 423; United States v. Trans. Mo. Freight Ass'n, 166 U. S. 290; United States v. Joint Traffic Ass'n, 171 U. S. 505.

227 U.S.

Argument for Plaintiff in Error.

A scheme or contract whereby a corporation disposes of its business, and agrees to ever thereafter remain out of business, is illegal and void, under the Sherman Antitrust Act. Shawnee Compress Co. v. Anderson, 209 U. S. 423.

A combination has obtained a monopoly when it has reached a position where it can control prices and suppress competition. United States v. Am. Tobacco Co., 164 Fed. Rep. 700, 721.

Where the necessary and direct effect of the combination is to restrain trade or effectuate a monopoly, the intent is immaterial. Addyston Pipe & Steel Co. v. United States, 175 U. S. 211.

But where acts in themselves are not directly in restraint of trade or do not directly tend towards a monopoly, or are only an attempt, the intent of the parties becomes material. Swift v. United States; Loewe v. Lawlor, supra; Penn. Sugar Co. v. Am. Refining Co., 166 Fed. Rep. 254; Bigelow v. Calumet & Hecla Co., 167 Fed. Rep. 704, 709.

In cases of conspiracy it is always permissible to allege and prove the history and various steps culminating in the final conspiracy, even though the previous steps were separate and distinct offenses, if they tend to throw light on the present conspiracy and to show the intent with which the final acts were committed. Wharton on Criminal Ev., § 32; Greenleaf on Ev., § 111; 8 Cyc., pp. 677, 678, 684; Swift v. United States, 196 U. S. 395; United States v. Greene, 115 Fed. Rep. 344; Lincoln v. Claflin, 7 Wall. 132; Mut. Life Ins. Co. v. Armstrong, 117 U. S. 598; Moline-Milburn Co. v. Franklin, 37 Minnesota, 137.

A person or corporation joining a conspiracy after it is formed, and thereafter aiding in its execution, becomes from that time as much a conspirator as if he originally designed and put it in operation. United States v. Standard