time since the commission of the offense set forth in those counts, it is argued that the indictment shows that she was not present in the State at the time when the third count charges a crime to have been committed, and the Whitney affidavit shows she fled from the State before the alleged commission of the crime set forth in the third count. There is no impossibility in the plaintiff in error having returned and been present in the State at the time of the alleged commission of the offense set forth in the third count, even though she had not been "usually or publicly a resident of that State" since the time when it is alleged that she committed the offenses set forth in the first two counts, and had fled therefrom before the commission of the last offense set forth in the third count. The affidavit of Mr. Whitney is to the effect that at the time of the commission of the crimes she was in the State of Massachusetts, and that at the same time and previous thereto she was a resident of Cambridge, in the county of Middlesex. Whether she was a resident or not is not important, as to the third count, if she were present in the State and committed. the crime therein. The statement in the affidavit that she fled on or about the fourth day of November, 1901, while the third count of the indictment avers the commission of the crime on the twentieth of November of that year, is sufficiently exact, considering the facts in the case, as the affiant states, that she was in the Commonwealth at the time of the commission of the crime. Reasonably construed, the affidavit of Whitney shows the presence of the plaintiff in error in the State, and is sufficient, unexplained and uncontradicted for that purpose.

When it is conceded, or when it is so conclusively proved, that no question can be made that the person was not within the demanding State when the crime is said to have been committed, and his arrest is sought on the ground only of a constructive presence at that time, in the demanding State, then the court will discharge the defendant. Hyatt v. Cockran, 188 U. S. 691, affirming the judgment of the New York Court

of Appeals, 172 N. Y. 176. But the court will not discharge a defendant arrested under the governor's warrant where there is merely contradictory evidence on the subject of presence in or absence from the State, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of the accused. As a prima facie case existed for the return of the plaintiff in error, and she refused to give any evidence upon the return of the writ which she had herself sued out, other than the papers before the governor, no case was made out for her discharge, and the judgment of the Supreme Court of New Hampshire refusing to grant it must, therefore, be

Affirmed.

SWIFT AND COMPANY v. UNITED STATES.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 103. Argued January 6, 7, 1905.-Decided January 30, 1905.

A combination of a dominant proportion of the dealers in fresh meat throughout the United States, not to bid against, or only in conjunction with, each other in order to regulate prices in and induce shipments to the live stock markets in other States, to restrict shipments, establish uniform rules of credit, make uniform and improper rules of cartage, and to get less than lawful rates from railroads to the exclusion of competitors with intent to monopolize commerce among the States, is an illegal combination within the meaning and prohibition of the act of July 2, 1890, 26 Stat. 209, and can be restrained and enjoined in an action by the United States.

It does not matter that a combination of this nature embraces restraint and monopoly of trade within a single State if it also embraces and is directed against commerce among the States. Moreover the effect of such a combination upon interstate commerce is direct and not accidental, secondary or remote as in United States v. E. C. Knight Co., 156 U. S. 1. Even if the separate elements of such a scheme are lawful, when they are bound together by a common intent as parts of an unlawful scheme to monopolize interstate commerce the plan may make the parts unlawful. When cattle are sent for sale from a place in one State, with the expectation

Argument for Appellants.

196 U. S.

they will end their transit, after purchase, in another State, and when in effect they do so, with only the interruption necessary to find a purchaser at the stock yards, and when this is a constantly recurring course, it constitutes interstate commerce and the purchase of the cattle is an incident of such commerce.

A bill in equity, and the demurrer thereto, are neither of them to be read and construed strictly as an indictment but are to be taken to mean what they fairly convey to a dispassionate reader by a fairly exact use of English speech.

THE facts are stated in the opinion.

Mr. John S. Miller, with whom Mr. Merritt Starr was on the brief, for appellants:

The charges in each of the paragraphs or counts of the bill or petition of alleged violations of the Sherman Act are, respectively, mere statements of legal conclusions. Each is bad on demurrer for that reason.

These charges would be bad on that ground, even in an indictment under this act. In re Greene, 52 Fed. Rep. 104; United States v. Cruikshank, 92 U. S. 542, 563; United States v. Simmons, 96 U. S. 360; United States v. Carll, 105 U. S. 611; United States v. Britton, 107 U. S. 655; Hazard v. Griswold, 21 Fed. Rep. 178. And a fortiori are they bad in a bill or petition in equity, which is required to state the facts essential to the cause of action. Lawson v. Hewell, 118 California, 613; Wright v. Dame, 22 Pick. 59; Ambler v. Choteau, 107 U. S. 586; Van Weel v. Winston, 115 U. S. 228, 237; 1 Foster Fed. Prac. § 67.

The facts alleged are looked at and not adjectives or adverbs or epithets. Magniac v. Thompson, 2 Wall. Jr. 209; Price v. Coleman, 21 Fed. Rep. 357; Van Weel v. Winston, and Ambler v. Choteau, supra.

The importance of applying this rule with strictness here is more marked because answer by the defendants under oath is called for. This point is properly raised by demurrer. 1 Daniel Ch. Pr. 372. It was so raised in Van Weel v. Winston,

supra.

The decree complained of, which is merely one of injunction, is erroneous on like grounds of indefiniteness. Laurie v.

196 U. S.

Argument for Appellants.

Laurie, 9 Paige, 234, 235; Robinson v. Clapp, 65 Connecticut, 365; Whipple v. Hutchinson, 4 Blatchf. 190.

It makes clear the misconception of the Sherman Act and of Federal power to regulate commerce upon which the bill and decree proceed. They appear to go upon the theory that under the act of Congress the Federal courts are to regulate commerce, and the decree enjoins, not specific acts, but violations of the statute in terms as general as the act of Congress itself. A defendant cannot know from its terms what he may or may not do without making himself liable as in contempt. This makes the insufficiency of the bill more obvious, as no valid decree could have been entered upon its allegations.

The provisions of the Sherman Act do not contemplate such a general proceeding or decree to interfere in advance with future dealings, as interstate commerce, which may be interstate trade or may be domestic trade according to the future and changeable intention of the dealers. United States v. E. C. Knight Co., 156 U. S. 1, 15.

The business of defendants of purchasing live stock and of selling fresh meats produced therefrom, as described in the bill, is not, upon the allegations of fact in the bill, interstate or foreign commerce.

The purchase of cattle as alleged and described in the first paragraph of the bill is not alleged or shown to be interstate

commerce.

The business of defendants of selling such fresh meats, at the several places where they are so prepared, as described in the second paragraph, is not, under the facts there alleged, interstate trade or commerce. The sales and deliveries, although to dealers in other States and Territories, are there alleged to be made at the places where the meats are prepared by defendants, and are domestic sales.

The deliveries by defendants to the carriers, who are agents of the purchasers in that respect, under the allegations of the bill, are deliveries to the purchasers in the State where the sale is made; and the sales and deliveries are there fully completed.

Argument for Appellants.

196 U.S.

Merchant v. Chapman, 4 Allen, 362; Orcutt v. Nelson, 1 Gray, 543; Waldron v. Romaine, 22 N. Y. 368; Ramsey & Gore Co. v. Kelsea, 55 N. J. L. 320; Cotte v. Harden, 4 East. 211; Brown v. Hodgson, 2 Camp. 86; Groning v. Needham, 5 Maule & S. 189; 2 Kent. Com. 499; Crossman v. Lurman, 192 U. S. 189, 198.

The sellers' act in delivering the merchandise to the common carrier, or carrying the merchandise to the carrier's depot (if that is taken to be in effect alleged), is not any part of the interstate transportation, and does not make the goods the subject of interstate commerce. Coe v. Errol, 116 U. S. 517, 528.

The fact that the sale is made with a view to the goods. being transported by the buyer's agent to another State after the sale and delivery is fully completed, does not make the sale interstate commerce.

The sales alleged in the third paragraph of the bill, by agents of the owners in other States and Territories to whom the owners of the fresh meats have shipped the same for sale there by such agents on the ground, are not incidents of interstate commerce. Coe v. Errol, 116 U. S. 517, 525; Kidd v. Pearson, 128 U. S. 1, 23; United States v. E. C. Knight Co., 156 U. S. 1, 13, 17; Austin v. Tennessee, 179 U. S. 343; Crossman v. Lurman, 192 U. S. 189, 198; Am. Harrow Co. v. Shaffer, 68 Fed. Rep. 750; Stevens v. Ohio, 93 Fed. Rep. 793.

Under the allegations here in question, it is to be taken that the meats, before the sales here referred to are made, have come to their place of rest and are at rest for an indefinite time awaiting sale at their place of destination, and are a commodity in the market where the sales are made; and that the sales are not in the "original packages"; and that the meats, at the time of the sales, have become a part of the general property in the State where sold, and are there handled and sold as such. Southern Coal Co. v. Bates, 156 U. S. 577, 588; Brown v. Houston, 114 U. S. 623, 632; Emert v. Missouri, 156 U. S. 296, 310; Singer Mfg. Co. v. Wright, 97 Georgia, 123. The point here made is entirely consistent with the rulings