will revive the balance of the old liability, on the ground that such composition is merely one form of bankruptcy proceedings under the National Act.

THE EFFECT OF JUDGMENTS BY CONSENT.-There is some difference of opinion among the authorities as to the consequence of a judgment by consent. Some courts refuse to give it the effect of a judgment in invitum, and admit the judgment record only as evidence of the agreement reached by the parties. The basis of this position is the theory that no matter upon which the court has not exercised its judicial mind by determining the respective rights of the litigants and pronouncing judgment accordingly can be considered res judicata. As a matter of definition, this proposition is scarcely open to question. The real gist of the controversy has been settled by the act of the parties while the court in entering up judgment has performed merely a ministerial function. On the other hand, the parties have caused the court to place their deliberate agreement upon the record as a formal judgment; and except in case of mistake or fraud, it would seem that they should be estopped from later denying it, even though the strict principles of res judicata are not applicable. In fact the majority of jurisdictions disregard the argument of definition and hold the judgment binding upon the parties according to its terms. The original cause of action is considered merged in the judgment, and to a later suit between the same parties on the same subject-matter a plea of res judicata is a complete defense.

Where, however, the action is simply dismissed by the consent of the parties, there is not the same ground for the argument of estoppel. The terms of the agreement which culminated in the dismissal do not appear in the judgment. The words of the judgment record, "dismissed agreed," are capable of several interpretations. Some courts give to them the effect of the old common law retraxit, which is defined as an open and voluntary renunciation by the plaintiff of his suit in court by which he forever loses his cause of action. Others reach the same result by holding that they necessarily imply that the parties have adjusted their differences and merged their cause of action in the judgment of dismissal.5 The Supreme Court of Tennessee recently endorsed the third view that the record is plain and unequivocal and leaves no room for construction. Lindsay v. Allen, 82 S. W. Rep. 171. It states only that the parties have agreed to a dismissal and nothing more. Consequently it leaves them in the same position as before the commencement of the litigation. The question seems to be strictly one of intention of the parties as shown by the judgment record. Have they agreed upon renunciation of all claim of right, or upon merger of the cause of action in the judgment, or upon a simple dismissal of the suit without impairing any existing rights? Any one of the three is possible; but the last seems the most natural interpretation, for it is certainly a harsh rule that deprives a person of rights which he has not renounced expressly or by necessary implication.

1 Jenkins v. Robertson, L. R. 1 H. L. Sc. 117, 122.

2 See Kelly v. Town of Milan, 21 Fed. Rep. 842, 863.

3 Nashville, etc., Ry. Co. v. United States, 113 U. S. 261.

4 Hoover v. Mitchell, 25 Grat. (Va.) 387.

5 Bank of Commonwealth v. Hopkins, 2 Dana (Ky.) 395.
Bishop v. McGillis, 82 Wis. 120.

2

The

RESCISSION FOR BREACH OF CONTRACT WITHOUT REPUDIATION. weight of English authority is to the effect that while acts indicating an intention to abandon a contract justify the aggrieved party in rescinding, mere breach in performance, without repudiation, cannot warrant rescission.' A recent dictum, to the same effect, in an Australian case following an earlier decision in the same jurisdiction, is indicative of the tendency of the provincial courts to adhere implicitly to the English doctrine. Moroney v. Roughan, 29 Victorian L. Rep. 541. It has been pointed out in an earlier volume that the real reason the aggrieved party is ever allowed to rescind, lies in the other's failure to do what he promised, rather than in what he thinks or says, so that the English rule is hardly logical in making the right to rescind dependent wholly on whether or not the defaulting party intends to abandon his contract.

An English case decided in 1859 allowed rescission on the ground of insufficient delivery of the first instalment of an iron contract.* This doctrine has given way in England to that of the more recent cases noted above, but it has been very generally followed in the United States, and has been extended even to cases where the breach was not in limine. In fact, rescission is often allowed for comparatively slight delay, provided notice is at once given by the innocent party of his intention to abandon the contract. While avoiding the undue strictness of the English courts in requiring that an intention to put an end to the contract must be shown if rescission is to be permitted, it is possible that our courts go too far in the opposite direction, and tend to allow rescission for too insignificant a breach. Thus it has been held in the Circuit Court of Appeals that where, under a year's contract for furnishing coke, payment was to be made on the twentieth of each month for the deliveries of the preceding month, the party to whom the money was payable might rescind the contract on the twenty-third, if the sum was still unpaid. There are of course many cases where the breach is so serious that the only solution fair to the innocent party is to allow rescission. But in the ordinary case of delayed performance, although the law should allow the innocent party to postpone the execution of his own promises until the other's obligations are performed, it is only fair that absolute cancellation be delayed until the breach has become material. To allow either party, on a comparatively unimportant deviation by the other from the terms of the contract, the choice between enforcing or avoiding it, according as the state of the market makes it profitable or unprofitable for him, is too severe a penalty to impose on one in slight default. It seems clear that rescission should be allowed for failure to perform as well as for repudiation, but only when the breach is material.

1 Freeth v. Burr, L. R. 9 C. P. 208; Cornwall v. Henson, [1900] 2 Ch. 298.

2 Bradley v. Bartoumieux, 17 Victorian L. Rep. 144.

8 14 HARV. L. REV. 317, 324, n.

4 Hoare v. Rennie, 5 H. & N. 19.

5 Norrington v. Wright, 115 U. S. 188; Kokomo Strawboard Co. v. Inman, 134 But see Gerli v. Poidebard Silk Co., 57 N. J. Law 432.

N. Y. 92.

Rugg & Bryan v. Moore, 110 Pa. St. 236.

7 Hull Coal & Coke Co. v. Empire Coal & Coke Co., 113 Fed. Rep. 256.

RECENT CASES.

ADVERSE POSSESSION CONTINUITY GRANTEE OF ONE HAVING TITLE BY ADVERSE POSSESSION. - -The plaintiff's grantor occupied, together with his own land, a strip adjoining, to which the defendant now holds the paper title. After adverse possession of the strip for more than the statutory period, the plaintiff's grantor gave possession of the whole tract to the plaintiff, executing a deed which failed to include the added strip, although both parties intended its conveyance. Held, that the plaintiff may maintain an action to quiet title. Clithero v. Fenner, 99 N. W. Rep. 1027 (Wis.).

The court apparently relies on the general rule that where one in adverse possession transfers his rights to another, the transferee acquires title when the combined length of his own and the previous terms of adverse possession reaches the statutory period. Cf. McNeely v. Langan, 22 Oh. St. 32; Davock v. Nealon, 58 N. J. Law 21. In the present case, however, the plaintiff's grantor had acquired title before the transfer, by his adverse possession. Schall v. Williams Valley R. R. Co., 35 Pa. St. 191. Since the legal title thus became vested, the plaintiff no longer had any claim based on his own possession adverse to the holder of the paper title. Nor did the plaintiff acquire the legal title by the conveyance. The strip was not described in the deed, nor could it pass as appurtenant to the other land. New Orleans, etc., Ry. Co. v. Parker, 143 U. S. 42. A number of states have passed statutes permitting the holder of a merely equitable title to maintain an action to quiet title, but no such statute being in force in Wisconsin, it would seem that the defendant should have had judgment.

BANKRUPTCY-COMPOSITIONS. - The Bankruptcy Act of 1898 provides that the bankruptcy courts may confirm a composition assented to by the majority of creditors. Semble, that where the composition is assented to by all the creditors a subsequent promise will not revive the balance of the old liability. Taylor v. Skiles, 81 §. W. Rep. 1258 (Tenn.). See NOTES, p. 59.

BANKRUPTCY PETITIONS IN BANKRUPTCY: INVOLUNTARY PROCEEDINGS COMPUTING NUmber of CredITORS. The assignee under a general assignment, to which a large number of creditors assented, bought up twelve claims which he re-assigned to different persons, to keep alive enough claims to defeat the provision of section 59 b of the Bankruptcy Act permitting one of the creditors, when there are less than twelve, to petition in involuntary bankruptcy. Held, that the creditors thus created are excluded in computing the number of creditors under this clause. Leighton v. Kennedy, 129 Fed. Rep. 737 (C. C. A., First Circ.).

Courts generally invalidate attempts to frustrate the purpose of bankruptcy legisla tion. It is clearly the intent of the Bankruptcy Act not to allow the bankrupt or his assignee to deprive a creditor of his right to petition by creating new friendly creditors through re-assignments of purchased claims. Such colorable proceedings would practically nullify the provision in favor of one creditor. A similar move to obtain the requisite number of petitioners by splitting up one claim failed. In re Independent Thread Co., 113 Fed. Rep. 998. And while a creditor has been permitted to buy up claims to bring himself within the statutory requirements, the present decision, under the existing authorities, seems sound. Cf. In re Woodford and Chamberlain, 13 N. B. Rep. 575. Another contention might have been made. It has been held that creditors assenting to a general assignment are not creditors within section 59 b supra. In re Miner, 104 Fed. Rep. 520. That question, however, is still doubtful, and assuming, as seems probable, that the number of such creditors in this case was at least twelve, the appellant might have contended that that section should not apply. See 14 HARV. L. REV. 461.

BANKRUPTCY PREFERENCES- -TIME WITHIN WHICH TRUSTEE MUST SUE TO AVOID.Semble, that in order to avoid a preference, the trustee must make his demand a sufficient length of time before the expiration of the year within which all claims must be proved against the bankrupt estate, to afford the preferred creditor a reasonable time in which to surrender the preference and exhibit his claim against the estate. Swartz v. Frank, 82 S. W. Rep. 60 (Mo., Sup. Ct.) See NOTES, p. 55.

BANKRUPTCY RIGHTS AND DUTIES OF BANKRUPT - ·Bankrupt a ConstrucTIVE TRUSTEE OF CONCEALED ASSETS. - The plaintiff secured a discharge in bankruptcy without the appointment of a trustee, as he disclosed no assets. He then sued on a claim that he erroneously but honestly failed to disclose at the time of the discharge. A statute provided that only the real party in interest might sue. Held, that the plaintiff cannot maintain his action. Rand v. Iowa Central Ry. Co., 96 N. Y. App. Div. 413.

This case involves in a novel way the relation of a bankrupt to assets discovered after his discharge and the close of his estate. Under subdivision eight of section two of the Bankruptcy Act of 1898, a bankrupt, or a creditor who took part in the former proceedings, may petition the court to reopen the estate to administer newly discovered assets, without disturbing the discharge. In re Shaffer, 104 Fed. Rep. 982 (semble); In re Newton, 107 Fed. Rep. 429 (semble). On the basis of this recognition of the clear right of creditors to reach these assets, the New York court seems justified in making the bankrupt a constructive trustee of them. It seems clear that the entire beneficial interest is in the creditors; the bankrupt has only a dry legal title. Accordingly he is not entitled to sue as the real party in interest.

CARRIERS DUTY TO TRANSPORT AND DELIVER - WAIVER OF RIGHT TO DEMAND BILL OF LADING. The defendant, a carrier, refused to accept the plaintiff's tender of freight charges and to deliver certain goods to him, claiming excessive freight. At that time the latter did not have the bill of lading, but later obtained and presented it and was given the goods, which had in the meantime been damaged by frost. The plaintiff sued for damages. Held, that the defendant cannot set up the plaintiff's failure to present the bill of lading. Clegg v. Southern Ry. Co., 47 S. E. Rep. 667 (N. C.).

Where tender of performance of an act is necessary to acquire a right of action, but the party to whom tender is due shows by his conduct that he would not accept it, the prevailing view seems to be that such tender is waived. Sonia, etc., Co. v. Steamer Red River, 106 La. Ann. 42; Keller v. Fisher, 7 Ind. 718. By analogy it may be urged that the defendant waived his right to insist on the presentation of the bill of lading, since his conduct fairly indicated that, even if it had been produced, he would still have refused to deliver. Furthermore, the case seems to be within the principle that where tender of performance is refused on one ground, such refusal cannot later be defended on another ground. Polglass v. Oliver, 2 C. & J. 15. If the defendant had required a bill of lading instead of insisting solely upon the payment of excessive charges, the plaintiff might at once have obtained the bill. The plaintiff's failure to fulfill all requirements, then, fairly resulted from the defendant's conduct, and the latter should not be allowed to take advantage of that failure. Louisville, etc., R. R. Co. v. McGuire & Co., 79 Ala. 395.

CHATTEL MORTGAGES-NOTICE UNDER THE RECORDING ACTS.· A commission merchant sold mortgaged cattle and remitted the proceeds of the sale to the consignor, without actual knowledge of the existence of the mortgage, which was recorded. The mortgagee sought to recover the amount of the net proceeds from the commission merchant in an action for money had and received. Held, that the plaintiff may

recover. Greer v. Newland, 77 Pac. Rep. 98 (Kan.). See NOTES, p. 54.

CHOSES IN ACTION- MANNER AND EFFECT OF ASSIGNMENT-EFFECT OF STATUTE.A statute provided that the real party in interest must sue. Held, that the partial assignee of a chose in action may join with the assignor in an action at law against the obligor. Firemen's, etc., Co. v. Oregon, etc., Co., 76 Pac. Rep. 1075 (Ore.).

Courts of law refuse to allow an action by a partial assignee for two reasons: first, that at law no divided judgment can be pronounced; second, that to allow him a separate action would subject the obligor to more than one suit. Mandeville v. Welch, 5 Wheat. (U. S.) 277. Equity, however, everywhere protects the partial assignee. The statute providing that the real party in interest must sue did not remove the difficulty as to the number of parties to an action at law. The court in the principal case followed the dicta in two previous cases. See State, etc., Co. v. Oregon, etc., Co., 20 Ore. 563; Home, etc., Co. v. Oregon, etc., Co., 20 Ore. 569. These dicta were based upon decisions in New York and Wisconsin, where law and equity are administered in one forum without regard to the form of the action. In Oregon the two courts are distinct. In New Jersey, under a similar statute, the court reached the opposite result. Otis v. Adams, 56 N. J. Law 38. Since, under such statutes, misjoinder of parties has been held fatal, the decision is also opposed to those cases, arising under them, which hold that the assignor may sue without joining the assignee. Leese v. Sherwood, 21 Cal. 151.

CONFLICT OF LAWS-JURISDICTION - RIGHT ACQuired under FOREIGN STATUTE.- - A citizen of the United States was killed in Mexico through the negligence of the defendant, a Colorado corporation. Under the Mexican statute giving an action for death by wrongful act, the liability of the defendant was limited to furnishing support to the legal dependents of the deceased during the periods of time that support would have been due from him, payments being made in monthly instalments. Action was brought under this statute by the proper parties in the United States Circuit Court. Held, that the federal court has no jurisdiction. Slater v. Mexican, etc., R. R. Co., 194 U. S. 120.

For a discussion of this case, see 16 HARV. L. REV. 63.

ACCOUNTS

FRAUD BY LESSEE.

CONFUSION A company leased the natural gas privileges from the plaintiff's land, contracting to pay him one-quarter of the profits therefrom. The lessees fraudulently mixed this gas with that from other properties, and declared themselves unable to determine what proportion of the mixture had come from the plaintiff's property. Held, on a bill for an accounting, that the company is liable for one-fourth of the profits on the whole of the mingled gas. Stone v. Marshall Oil Co., 208 Pa. St. 85.

The principle relied on by the court in estimating the amount of the plaintiff's recovery applies both in law and in equity. Whenever there is fraudulent confusion, either of property or accounts, without means of determining the share of each party, the innocent owner will be protected, at whatever risk to the rights of the confuser. Diversey v. Johnson, 93 Ill. 547; Graham v. Plate, 40 Cal. 593. In the present case, the only settlement which involved no danger of injustice to the innocent plaintiff was the one adopted. Cf. Kleppner v. Lemon, 197 Pa. St. 430. In the corresponding cases involving ownership rather than accounting, the decisions merely vindicate the innocent owner's right to take and keep the whole until the confuser designates his share. When the question of damages for conversion of such a mass does arise without data as to the proportions belonging to the interested parties, there is little doubt that the full value of the mixture will be awarded. The present analogous case in confusion of accounts appears to support this view.

CONSTITUTIONAL LAW-SEPARATION OF POWERS - EXCLUSION OF ALIENS AS A JUDICIAL QUESTION. - The petitioners, Chinese persons, applied for admission to the United States, but were refused admission and detained by the immigration officers on the ground that they were not citizens of the United States and not within the classes entitled to admission. The petitioners refused to answer the questions asked by the officers or to appeal to the Secretary of Commerce and Labor, as allowed by the statute, but instead applied for discharge from custody on habeas corpus, alleging citizenship. Held, that the petition must be dismissed and the petitioners remanded. United States v. Sing Tuck, 194 U. S. 161.

This decision of the supreme court overrules that of the circuit court of appeals and affirms that of the circuit court. For a discussion of the principles involved, see 17 HARV. L. Rev. 488.

CONTRACTS-Defenses

PERFORMANCE RENDERED IMPOSSIBLE BY LAW.The lessee of an electric car line belonging to a municipal corporation contracted to allow an advertiser the exclusive right of advertising in its cars for a certain time. At the instance of the lessee, a clause impowering the corporation to take over its lines was inserted into an act of Parliament. The corporation exercised its power, and thereby made performance of the advertising contract impossible. Held, that the lessee is liable on the contract. Re Companies' Acts, 117 L. T. 60 (Eng., Ch. D.).

The present decision apparently creates a new modification of an old legal principle. It is generally held that when performance of a contract is rendered impossible by law the promisor is excused. Bailly v. De Crespigny, L. R. 4 Q. B. 180. But in the present case the defendant was not allowed to plead, as an excuse for not performing its contract, a law which it had caused to be introduced into Parliament, and which rendered performance impossible. This result seems sound. The case is analogous to those in which the subject matter of a contract has been destroyed by the defendant. Under such circumstances, the courts have held that he cannot successfully plead facts which would otherwise have afforded him an excuse. Cf. Stanton v. New York, etc., R. R. Co., 59 Conn. 272. That the defendant created the impossibility by means of an act of Parliament should not affect the validity of the analogy. The argument in both instances is based upon the same rule of common sense, that no one should be allowed to take advantage of his own wrong to the injury of another.

CONTRACTS- RESCISSION-ACTION FOR RESTITUTION. - The plaintiff contracted to sell a tract of land to the defendant, who paid £100 cash and agreed to pay