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be still executory, A may perhaps justly object to being compelled to rely for future performance on one who has tried to cheat him. So also the court might perhaps decline to affirm the executory bargain in B's favor, where A seeks to rescind, on the ground that B does not come into court with clean hands as to this particular transaction, whether B comes into court as plaintiff or is dragged in as defendant to a bill in equity for rescission. In either case to affirm the bargain would in effect give A affirmative relief, and this the court might well deny to one who had attempted to cheat in the very case before it, even though the attempted fraud was not in fact consummated. On the grounds suggested by Holmes, J., and on this further ground, this dictum may perhaps be supported in a case where A is seeking the aid of the court to affirm and enforce a bargain which is still executory.

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Broadly speaking, a fraud once committed cannot be purged against the will of the party defrauded. The old proverb, “An ounce of prevention is worth a pound of cure,” still holds good. Or, to put it another way, “An ounce of previous honesty is worth a pound of specific repentance.” On principle, and on authority, specific repentance should not avail the wrongdoer unless it prevents the wrong or unless the injured party chooses to accept it instead of the relief which the law would otherwise afford. This is both good law and good sense. People should not be allowed to cheat their neighbors and then escape liability by undoing the wrong with the fear of the law upon them. Probably most embezzlers promise themselves to repay the "loan" in a few days. But restitution is no bar to conviction for the previous crime.

Enforcement of civil liability and criminal punishment are both aids to feeble consciences. Courts should be slow, and are slow, to permit a party who commits a fraud to escape or mitigate civil liability by making specific reparation which the injured party is not willing to accept.

The better view and the weight of authority in so far as there is authority seem to be as follows: Specific reparation

against the will of the defrauded party, will neither defeat a previous election to rescind nor mitigate damages where an action of deceit has been previously brought. Even when specific reparation has been made before the defrauded party has elected whether he will rescind or affirm and sue for damages, it will not defeat a subsequent election to rescind made with knowledge of the facts, nor avail to mitigate damages which are sought in ignorance of such reparation. If, however, the election to affirm and sue for damages be made with knowledge of the reparation, it may well be held that the injured party has assented to such reparation and must account for the benefit received. Where the misrepresentation is made good before it is acted on no cause of action arises, and the party to whom it was made should neither recover damages nor be permitted to set aside a transaction fully executed. It has been intimated, however, that if in such a case the transaction is still executory the party who made the false representation may be denied relief on the ground that if the representation had been known to be originally false the innocent party would never have made the contract. Perhaps relief may likewise be denied in such a case to the party who misrepresents in this very transaction, on the ground that he does not come into court with clean hands. Both principle and the weight of authority, therefore, seem to concur in the view that a fraud once committed cannot be purged against the will of the party defrauded.

Edwin H. Abbot, Jr.

Boston, Mass.

SOME PROBLEMS UNDER WORKMEN'S COMPENSA

TION LAWS. Workmen's Compensation Acts have been in force in a majority of American states for periods ranging from seven to three years. They have on the whole worked well and have given satisfaction to both employers and employees, but they have developed certain defects. It is the purpose of this article to suggest some of the more obvious problems that have arisen and to suggest remedies for a few of the more obvious defects. It is a curious fact that in none of the many compensation laws in force in the United States is there any provision made for a situation which early developed in the administration of the Pennsylvania Act. The compensation given in case of death is awarded to the widow if there be one, and the amount of compensation is determined by the number of children left by the deceased workman, not by the number of children of the deceased workman born of the widow who survived him. Where, therefore, a workman is killed leaving a widow and children by a former marriage compensation is paid exclusively to the widow. On the other hand, the amount paid the widow is increased by reason of children born of a former wife, even though the widow's stepchildren are not living with or supported by her, but are being cared for by their mother's family, and no power is given to compel the widow to turn over to the persons caring for her stepchildren that part of the compensation paid on their account. A somewhat similar situation occasionally develops where a widow to whom compensation is being paid on account of herself and her own children deserts such children, who are then cared for by other relatives or by charity. It is obvious that in no case should compensation be paid to a widow on account of the children of her deceased husband, except while she is actually supporting them. Where, as in most states of the union, workmen's compensation acts are administered by a board or a commission it would seem wise to give such commissions or boards the power by special

order to make an original award of the compensation payable on account of children to persons other than the widow and to modify an award to a widow if at any time it was made to appear that such widow was not supporting the children on whose account the compensation was being paid.

A more serious omission in the great majority of acts is the failure to provide some simple and economical means or method of payment of compensation payable to minors whether themselves injured workers or dependent and wholly orphaned children. It should be universally provided, as is done in some acts, that for the purpose of the payment and enforcement of compensation minors at least above the legal working age should be sui juris for the purpose of the compensation act so that compensation can be paid directly to them, their receipt shall be a valid discharge and they may be in their own name parties to any proceedings to enforce or defend their interests under the act. This of itself would suffice in the case of injured minor employees. As to dependent children, who in most cases are given compensation only until they attain the age at which they may be legally employed, it is obvious that no such provision can be made. In their case this compensation is generally, if not universally, payable to their guardian, thus requiring the appointment of a testamentary guardian who, in most cases, is necessary only in order to qualify someone to receive compensation or to enforce the right to compensation, since the infant has rarely any other estate. Not only is the cost heavy, but the security is apt to be large, in some cases unduly so, and the filing of a guardian's account is a laborious and expensive proceeding in view of the small amounts involved. The Boards or Commissions should be empowered to direct that the money should be paid to their guardian or such other person as the Board may direct. They should be empowered to require the person receiving compensation payable to a minor dependent to file with the Board security satisfactory to it and to submit accounts to the Board of their disbursements.

The various acts in force in the United States differ ma

terially in respect to the provisions made for permanent but partial disability. In a number of the acts there is an elaborate schedule embracing practically every conceivable mutilation and disfigurement from the loss of both eyes, both legs, arms down to the loss of one phalanx of a finger or toe, and providing that compensation be paid for a period of weeks decreasing in number as the injuries decrease in magnitude. In others as in the Pennsylvania Act compensation for varying periods is provided in the case of the more important mutilations, but no provision is made for any mutilation less serious than the hands or the eye or foot, any less mutilation is regarded as a partial disability and compensation being paid only in so far as such mutilation affects the earning power of the sufferer. In others, as in Illinois, compensation for all mutilations is given in addition to the compensation for partial disability, that is, for the loss, if any, in earning power caused by the mutilation. In theory there is nothing to be said in favor of this last method, for compensation is given to replace a specified percentage of the earning power destroyed by accident; if then only a part of the earning power be lost and be replaced to the specified extent there seems no need or justification for any further payments. However true this may be in theory, there is to the ordinary man something sacred in the integrity of the human body and a mutilation of that body requires satisfaction irrespective of its effect upon the earning power. This feeling is so deeply rooted and universal that it must be reckoned with. There are many minor mutilations which do not affect the earning power of the sufferer. Theoretically he is entitled to nothing more than medical expenses, yet if he be not paid something, he feels that he has a very just grievance, both against his employer and against the act which fails to provide some payment for his injury. No feature of the Pennsylvania Workmen's Compensation Act has led to more constant dissatisfaction on the part of the laboring classes than this. It may be objected to by these employers that the employees are theoretically wrong, and are asking a mere gratuity. In this connection it is well to emphasize a fact which is very often overlooked.

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