the requirements of the statute as to service of papers and opportunity for hearing have been observed, then the Commission had jurisdiction and the order will have been “regularly made.”

§ 39. Lawfulness of Order - How Reviewed.-Whether an order of the Commission is or is not lawful cannot be tried in a proceeding by the Commission, or by the party injured, to enforce the order in a court of equity. In a proceeding to enforce the only inquiry presented is, was the order of the Commission sought to be enforced "regularly made?" Did the Commission have jurisdiction to make it? If the order is "regular" it must be enforced.

If the order is sought to be attacked on the merits, and a trial had de novo before the court, the proceeding must be instituted by the carrier who fails to obey it, in a suit brought by the carrier against the Commission "to enjoin, set aside, annul, or suspend the order." In this regard, therefore, the distinction under the statute between orders 'regularly" made, and orders "lawfully" made, is apparent.

$ 40. Evidence-Burden of Proof-Findings of Com mission Prima Facie Evidence.— The Interestate Commerce

Act, authorizing investigation and inquiry by the Interstate Commerce Commission, creates a presumption in favor of the correctness of the Commission's report. The Legislature may create rules of evidence and modify or alter or change the same, subject only to the limitations imposed by the provisions of the Constitution. When a body created by an act of Congress is required to take testimony as to the reasonableness of a rate or charge for transportation, the findings and conclusion of the Commission and its report, when offered in evidence in any judicial procecding, is prima facie evidence of all the facts found by the Commission, and the burden of proof is cast upon the party against whom the report is made to rebut the facts and conclusions set forth in the report.

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Section 14 of the Commerce Act declares that the "ndings of fact set forth in the report of the Commission shall in all judicial proceedings be deemed prima facie evidence as to each and every fact found." This rule is repeated in section 16 of the Commerce Act, relating to trial of issues by jury, which declares that at the trial of the findings of fact of said Commission as set forth in its report, shall be prima facie evidence of the matters therein stated." The report of the Commission, therefore, is entitled to such evidential effect that the complainant may introduce the report in evidence and rest his case, and he will be entitled to judgment on the report unless the adverse party, by preponderant and controlling evidence, shall rebut and disprove the findings. (Lilienthal's Tobacco Co. v. United States, 97 U. S. 268.)

The Interstate Commerce Commission, which has been entrusted by Congress with the duty of determining, in the first instance, the character of a rate charged for transportation, whether the same shall be reasonable or unreasonable, must be regarded as an expert tribunal. "Our view is," said Hon. EMORY SPEER, "that it would be violation of explicit law, the settled policy of government, and the most practical principles of reason and justice for the courts of the nation, save for controlling reasons of law or fact, to discredit or disparage the conclusions of the Interstate Commerce Commission.” (Tift et al. v. Southern R. R. Co., 138 Fed. Rep. 753. June, 1905, Circuit Court, southern district, Georgia.)

§ 40a. Burden of Proof Drug Trust.- In an action to recover damages under the Sherman Act, by a party injured by an illegal combination, known as the drug trust, the burden of proof is on plaintiff to show the unlawful conspiracy, and that some real, actual damage was sustained by plaintiff by reason thereof. In such a case it is within the discretion of the trial court to admit evidence of acts and declarations of various defendant associations, their officers, committees, members, and agents, made in the absence of many of the other defendants, before a prima facie case of conspiracy had been established, and before privity of some of the defend

ants had been proven, on condition that connecting evidence should be thereafter supplied. (Loder v. Jayne, 142 Fed. R. 1010. Circuit Court, eastern district, Pa., Jan.. 22,

1906.)

§ 40b. Pleadings Under Sherman Act.- The U. S. Circuit Court for the District of New Jersey, January, 1905, in the Rice case, infra, held that in a suit to recover damages under section 7 of the Sherman Act, the pleader, in the opinion of the court, was bound by section 110 of the New Jersey Practice Act (P. L. 1903, p. 569) which authorizes the court to strike out a declaration, if it appears to be irregular and defective, and so framed as to prejudice, embarrass and delay a fair trial of the action.

The construction given to the Sherman Act by the court in Rice v. Standard Oil Co., 134 Fed. Rep. 464, was altogether technical, and was based upon the theory that the act in question was a penal and not a remedial statute. That theory has been repudiated by the Supreme Court of the United States, not only as to the Sherman Act, but also as to the Interstate Commerce Act, and the Safety Appliance Law. Justice WHITE in the Chesapeake and Ohio Case, 200 U. S. 261, in an opinion concurred in by every member of the court, expressly declared that the Commerce Act was a remedial statute, and, therefore, “ entitled to receive that interpretation which reasonably accomplishes the great public purpose which it was enacted to subserve." A like construction was given to the Sherman Act in the Addyston Pipe Case, 175 U. S. 211; in the Northern Securities Case, 193 U. S. 197, and in Montague v. Lowry, 193 U. S. 35; and to the Safety Appliance Law in Johnson v. Southern Pacific Co., 196 U. S. 1. In the latter case the court said, that while the statute was in its nature penal, such construction must be given to it as will fairly carry out the legislative intent.

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In the Rice Case, supra, the narrow construction given to the Sherman Act required the pleader to include in his complaint a bill of particulars, and much of his evidence. The court, in order to defeat the pleading, resorted to the technical distinction between a "contract" in restraint of trade, and

a

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conspiracy" in restraint of trade, quoting on this point from the dissenting opinion of Mr. Justice HOLMES, in the Northern Securities Case. The views in the dissenting opinion relied upon by the court in the Rice Case, however, were not adopted in the prevailing opinion concurred in by other members of the court, and was not thereafter followed by Mr. Justice HOLMES in a later case under the Sherman Act, in which he sustained an injunction against the "Beef Trust," writing the opinion concurred in by every member of the court. (Swift v. United States, 196 U. S. 375.)

The complaint in the Rice Case, after setting forth the combination and conspiracy entered into by defendant, set forth the acts done which resulted in damage to plaintiff, and alleged that defendant and its associates intimidated merchants and others engaged in the business of selling oil in various markets, and thus prevented such merchants and others from purchasing and dealing in oil manufactured by the plaintiff. The plaintiff also alleged that defendants hampered plaintiff in getting the necessary supplies of crude oil, and made the said crude oil more expensive to plaintiff, and hindered, delayed and made more expensive the work of plaintiff in the construction of the pipe line for his use, to his damage.

The court held that the complaint was vague, indefinite and uncertain, in that it did not set forth the names of the merchants or other persons intimidated, the specific acts of intimidation, or the particular markets in which such practice was carried on, or the details as to the manner in which plaintiff was hindered and delayed by defendant, although this information might well have been supplied by a bill of particulars. (Rice v. Standard Oil Co., 134 Fed. R. 464.)

§ 40c. Assignment of Claims - Jurisdiction - Rights of Assignor in Federal Court.-The general rule as to the jurisdiction of assigned claims in the Federal courts, where the claim arose upon contract, is that the assignee cannot maintain his action and the court will not have jurisdiction, unless the suit might have been prosecuted in the Federal court by the assignor, if no assignment or transfer had been made. The exception to this rule seems to be in cases of

foreign bills of exchange and commercial paper made by a corporation.

The act of Congress, conferring jurisdiction upon the Federal courts, U. S. Rev. Stat., section 629, as amended by Act of March 3, 1891, ch. 137, provides as follows:

Jurisdiction as to Assigned, Claims.— * * * Nor shall any Circuit or District Court have cognizance of any suit, except upon foreign bills of exchange, to recover the contents of any promissory note, or other chose in action in favor of any assignee, or any subsequent holder, if such instrument be payable to bearer, and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents, if no assignment or transfer had been made.

Under this rule a "chose in action" not arising in tort cannot be assigned by a resident of the State of which the defendant against whom the cause of action exists is a citizen, to a resident of another State, in order to permit the assignee to sue in the Federal court. In such case, if the cause of action is not one of which the Federal court has exclusive jurisdiction, the assignee cannot sue in the Federal court, because his assignor could not have sued in that jurisdiction. If the assignor and the assignee are both citizens of a State, other than that of which defendant is a citizen, the cause of action can be assigned, and the suit can be maintained in the Federal court by the assignee of the claim upon the ground of diversity of citizenship.

A suit upon contract to recover an amount due from the defendant, which defendant agreed to pay out of funds put into defendant's hands for that purpose, is "a chose in action" within the meaning of the statute which refers to "the contents of any promissory note or other chose in action," and the assignee of such a claim cannot maintain an action upon it in the Federal court if his assignor could not have sued in the Federal court prior to the assignment. (Mexican Nat. Railroad v. Davidson, 157 U. S. 201.)

In the case cited the cause of action arose in favor of the assignor, the Mexican National Construction Company, a citizen of Colorado, against the Mexican National Railroad