though they are similar, the purposes are different. The state statute consequently is not superseded. Cf. Mo., etc., Ry. Co. v. Haber, 169 U. S. 613.

INTERSTATE COMMERCE CONTROL BY STATES REQUIREMENT THAT BAGGAGE BE TRACED THROUGH CONNECTING CARRIERS. A state statute provided that even though when shipping through freight over connecting lines a railway contracted for liability only on its own line, yet it should be liable for damage occurring anywhere unless it gave information as to the responsible person or proved that it could not with reasonable diligence do so. Held, that the statute is not an unconstitutional regulation of interstate commerce. Skipper v. Seaboard Air Line Ry., 55 S. E. Rep. 454 (S. C.).

A state may forbid any limitation by contract of the common law liability of an interstate carrier for damage to freight. Chicago, etc., Ry. Co. v. Solan, 169 U. S. 133; see II HARV. L. Rev. 544. But to enforce greater obligations to carry, so that an interstate carrier must be responsible for a through shipment over a connecting line, is a regulation of commerce held to be beyond the state's power. Central of Ga. Ry. Co. v. Murphey, 196 U. S. 194. Merely as a rule of evidence, however, a state law may provide that the taking of goods for such through shipment shall imply prima facie a contract of responsibility for the whole distance. Mo., etc., Ry. Co. v. McCann, 174 U. S. 580. But the first carrier cannot be put to the alternative of informing shippers as to those who caused any damage or of assuming, irrespective of its actual agreement, the responsibilities of a through contract. Central of Ga. Ry. Co. v. Murphey, supra. True, in the present case the responsibility may be avoided by showing due diligence in seeking the information. Even so the statute does not seem so reasonable a local measure that, as in the case of the rule of evidence, the subject involved should be open to state control rather than be maintained in statu quo until Congress shall act.

LANDLORD AND TENANT- CONDITIONS AND COVENANTS IN LEASES — DUMPOR'S CASE. The plaintiffs conveyed land to a railroad company on condition that if the land ceased to be used for railroad purposes it should revert to the grantors. A grantee of the railroad mortgaged the land to the defendant, without the plaintiffs' knowledge, and later gave a second mortgage deed of the same land, on which the plaintiffs endorsed that, to the extent of such mortgage, they waived "any right of reversion under the condition" in the original deed. Held, that the waiver of the condition as to the second mortgage does not determine the condition as to the first mortgage. Moss v. Chappell, 54 S. E. Rep. 968 (Ga.).

Although this decision is sound, the court seems to have erred in assuming the case to be within the rule in Dumpor's Case, in which it was held that, in case of a lease, the waiver of a condition not to assign, given in favour of the original lessee, operated as a complete destruction of the condition. Dumpor's Case, 4 Coke 119b; see 12 HARV. L. REV. 272. This doctrine has been much limited. It has been restricted entirely to conditions against assignments of leases, even to the exclusion of sub-leases. Doe v. Bliss, 4 Taunt. 735. This alone is sufficient to remove the present case from its operation. But there is still another objection to its application. The decision in Dumpor's Case that a waiver given as to one breach operates as a waiver of all breaches by no means, it is believed, involves the doctrine that a waiver of all breaches for a specific purpose, such as in the present case the protection of a certain mortgagee, destroys the condition as to all purposes. The effect of the waiver in the present case was merely to make the plaintiff's potential right of entry part of the security in the second mortgage. That clearly does not make it security for the first mortgagee.

LIMITATION OF ACTIONS NATURE AND CONSTRUCTION OF STATUTE — WHAT CONSTITUTES WRITTEN CONTRACT. The plaintiff made an offer in writing to a bilateral contract which the defendant, it seems, accepted orally. The Statute of Limitations barred actions on written contracts after ten years; on oral contracts after five years. Held, that the plaintiff's right of action is not barred until after ten years. Bauer v. Hindley, 222 Ill. 319.

To constitute a written contract the parties and terms must be distinctly specified in writing. Grafton v. Cummings, 99 U. S. 100. But where a written contract is required by the Statute of Limitations, it is not essential that the writing be signed by all the parties or even by the party to be charged. Memory v. Niepert, 131 Ill. 623; Midland Co. v. Fisher, 125 Ind. 19. It must, however, purport to be the statement of a completed contract; a recital of the terms in a writing not intended as the expression of the agreement is insufficient. Wood v. Williams, 142 Ill. 269. An offer in writing contemplating acceptance by counter-promise obviously neither states nor purports to state the terms of a completed contract, and in the absence of further writing, an agreement based thereon is not a written contract. Board of Education v. Foley, 88 Ill. App. 470; Hulbert v. Atherton, 59 Ia. 91. But in case the offer contemplates a unilateral contract, no further writing is required to constitute a written contract. Plumb v. Campbell, 129 Ill. 101. The probable explanation of this distinction, apparently disregarded in the present case, is that no other promise than that contained in the offer is necessary to complete a unilateral contract, and hence the offer is the only essential element in the transaction that can be put in writing.

LIMITATION OF Actions - NEW PROMISE AND PART PAYMENT-EFFECT ON BARRED JUDGMENT. After the Statute of Limitations had run on a judgment, the judgment debtor gave the assignee of the judgment a mortgage to secure its payment containing a written promise to pay. Held, that the judg. ment is enforcible. Spilde v. Johnson, 109 N. W. Rep. 1023 (Ia.).

After the Statute of Limitations had run on a judgment, the judgment debtor made part payment. In an action on the judgment the debtor pleaded the Statute of Limitations. Held, that the action on the judgment is barred. Olson v. Dahl, 109 N. W. Rep. 1001 (Minn.).

The rule that acknowledgment or part payment revives an action on which the Statute of Limitations has run is by general consent, for some reason not clear, applied only in the case of contracts. See WOOD, LIMITATIONS, § 66. Whether a judgment is a contract is the subject of much difference of opinion. Text-writers in classifying contracts are accustomed to speak of judgments as contracts of record. See I STORY, CONTRACTS, 2. And a judgment has been held to be an implied contract within the meaning of a statute. Gutta Percha Co. v. Mayor, 108 N. Y. 276. It is not, however, a true contract; at most it is an obligation" implied in law," the so-called quasi-contract. And it is generally held that the term "contract" includes only obligations based on the consent of the parties, and not those that are quasi-contractual. State of Louisiana v. New Orleans, 109 U. S. 285. Accordingly a judgment as such is not given the protection of the constitutional inhibition against the impairment of contractual obligations by the states, such protection being granted only to judgments based on contracts. Nelson v. St. Martin's Parish, 111 U. S. 716. The weight of divided authority, in agreement with the Minnesota case under consideration, favors the suggested conclusion that a judgment should not be considered a contract. McAleer v. Clay County, 38 Fed. Rep. 707; contra, Frisbie v. Seaman, 49 Ia. 95 ; see I BLACK, Judgments, §§ 7, 8, 10.

MUNICIPAL CORPORATIONS - CONTRACTS PATENTED ARTICLES. A statute required that certain contracts for public improvements be let to the lowest responsible bidder. An ordinance prescribed the use of a certain patented commodity in the construction of a municipal improvement. The patentee had agreed to furnish the commodity at a stipulated price to the contractor whose bid should be accepted. Held, that the ordinance is void as in violation of the statute. Siegel v. City of Chicago, 79 N. E. Rep. 280 (Ill.).

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For a discussion of the principles involved, see 19 HARV. L. Rev. 138. QUIETING TITLE-REMOVAL OF CLOUD FROM PERSONAL PROPERTY. The defendant made verbal claims to personal property possessed and owned by the plaintiff, whereby its market value was greatly diminished. Held, that a bill to remove cloud on title does not lie. Red, etc., Co. v. Steideman, 97 S. W kep. 220 (Mo., St. Louis Ct. App.).

This decision seems undoubtedly correct; for as verbal claims have almost uniformly been held to raise no cloud on realty, no more should they have that effect on personalty. See Parker v. Shannon, 121 Ill. 452; but see Moran & Co. v. Palmer, 36 Wash. 684. Moreover, the rule, supported by the weight of opinion (mostly dicta), that a bill to quiet the title of personal property never lies, has previously appeared to prevail in Missouri. See State ex rel. Kenamore v. Wood, 155 Mo. 425, 446. In the present case, however, a dictum recognizes "exceptions to this rule" which, unless wholly unreasoned and anomalous, seem to lead towards the opposite view that such a bill would he in the case of personalty under the same circumstances as in the case of realty. See Stebbins v. Perry County, 167 Ill. 567. The issue between these two doctrines is simply one of policy. For the one, argument may be made that in the eye of the common law personalty has always been of less importance than realty; that usually adverse claims do not so much impair the value of personalty as of realty; and that this somewhat extraordinary remedy might be invoked in too many petty controversies. Supporting the other are the considerations that the elimination of verbal claims largely nullifies the force of the above suggestions; and that if equity does not provide this remedy, a situation often causing substantial injury will be without relief.

RESTRAINT OF TRADE SHERMAN ANTI-TRUST LAW - LICENSE CONTRACTS UNDER PATENTS. In order to control the market, various threshingmachine manufacturers had transferred their patent rights to the complainant, who acquired in this or other ways practically all patents affecting one branch of the business. The complainant then entered into uniform contracts with all the manufacturers, licensing them to use these patents, and stipulating among other things that they should maintain a uniform price for the completed machines. The complainant sought to enforce one of these contracts against the defendant manufacturer, who had cut prices. Held, that the contract is in restraint of trade and in violation of the Anti-Trust Act of July 2, 1890. Indiana Mfg. Co. v. J. I. Case Threshing Machine Co., 148 Fed. Rep. 21 (Circ. Ct., E. D. Wis.).

For a discussion of the principles involved, see 19 HARV. L. REV. 125.

SALES FACTORS' ACT LARCENY BY AGENT.-A broker falsely represented to the plaintiff that he had certain named prospective customers. The plaintiff thereupon gave him possession of the goods with power to sell them to either of the proposed customers. The broker sold the goods to the defendant, a purchaser without notice. The jury found that the broker had committed larceny by trick. Held, that, under the Factors' Act of 1889, the defendant got good title. Oppenheimer v. Frazer & Wyatt, 51 Sol. J. 131 (Eng., K. B. D., Dec. 15, 1906).

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The Factors' Act provides that where a mercantile agent is, with the consent of the owner, in possession of goods, a sale to a bona fide purchaser shall be valid. 52 & 53 VICT., c. 45, § 2. That the seller secured possession by fraud would not impair the validity of the purchaser's title, provided the owner gave him possession as a "mercantile agent," or, in the language of the earlier statutes, provided he was an agent intrusted." Baines v. Swainson, 4 B. & S. 270. But if one obtains mere possession without being intrusted as mercantile agent, he can convey no title by virtue of the Factors' Act. Kingsford v. Merry, 1 H. & N. 503. There are dicta that if there is fraud amounting to larceny by trick no title can pass. See Cahn v. Pockett's Co., [1899] 1 Q. B. 643, 659. But these dicta are inaccurate, for it is not because of fraud and larceny that the Act may not apply, but because there may be no intrusting as agent. Cf. Cole v. N. W. Bank, L. R. to C. P. 354, 373. And in the present case, although the agent committed larceny, he was empowered to sell, and this, though to a limited class, constituted an intrusting according to the accepted meaning of the term. Baines v. Swainson, supra; see Phillips v. Huth, 6 M. & W. 572, 598.

ΤΑΧΑΤΙΟΝ PARTICULAR FORMS OF TAXATION NEW YORK STOCK TRANSFER TAX. - A New York statute imposed on all sales of stock in domestic

or foreign corporations a tax of two cents "on each one hundred dollars of face value or fraction thereof." A Connecticut vendor sold in New York to a Connecticut vendee shares in two foreign corporations without paying the tax. He was arrested and brought habeas corpus. Held, that the writ be dismissed, as. the tax is constitutional. People ex rel. Hatch v. Reardon, U. S. Sup. Ct., Jan. 7, 1907.

For a discussion of this case in a lower court, see 19 HARV. L. Rev. 460.

TAXATION - PARTICULAR FORMS OF TAXATION - SUCCESSION TAX ON NON-RESIDENTS' LIFE INSURANCE POLicies. A New York statute imposed a succession tax of five per cent on all "property within the state" belonging to a non-resident decedent. A New York corporation issued to a resident of New Jersey a life insurance policy which was always kept in that state. A New Jersey statute required the corporation, as a condition precedent to doing business in that state, to accept service of process on a state official. At the decedent's death the corporation had assets in New Jersey sufficient to satisfy his claim. Held, that the policy is not subject to the New York tax. Matter of Gordon, 186 N. Y. 471.

Courts are slow to extend general property taxes to life insurance policies because of practical difficulties of computation. State Board v. Holliday, 150 Ind. 216. This objection obviously does not apply to inheritance taxes; residents' policies are subject to such taxes as creditors' assets. Matter of Knoedler, 68 Hun 150; aff. 140 N. Y. 377. New York courts originally recognized a lack of jurisdiction to tax non-residents' policies, wherever deposited. Matter of Horn, 39 N. Y. Misc. 133. Whether they have adopted recent federal dicta, allowing the taxation of debts at the debtor's domicile, is yet uncertain. See Blackstone v. Miller, 188 U. S. 189; 20 HARV. L. REV. 313. A dissenting judge below argues forcefully that they have. See Matter of Gordon, 114 N. Y. App. Div. 202. But in the principal case the court points out that the reasoning of the federal dicta does not apply, for the creditor need no longer seek aid from the debtor's state to collect his claim in view of the New Jersey statute. The court is so obviously indisposed to jeopardize the mammoth insurance business of New York that it is idle to speculate on the result in the absence of such legislation. Nor does it intimate what it shall do as to other choses in action, similarly situated, such as annuities or letters of credit. The state regulation of foreign corporations relied on is not peculiar to insurance companies. See BEALE, FOR. CORP., §§ 117, 141-196.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

THE ASSIGNABILITY OF CONTRACT. — An assignment of a contract is in fact a power of attorney,1 or the creation of an agency, so that in general any contract that may be performed through an agent and does not in its terms contemplate personal performance may be assigned. Assignments, valid and invalid, may be divided into three broad classes: (a) an assignment of a chose in action; (b) a power of attorney to perform and to receive performance; (c) an assignment of rights coupled with a delegation of duties. Assignments under class (a) are generally valid, and the consent or even objection of the debtor is immaterial. For performance to the agent gives a discharge of the debt, and the assignee, being a mere agent, is subject to all the equities good against the assignor, provided the chose in action has not the further quality

1 See 3 HARV. L. REV. 337, 340.

2 Cf. 18 HARV. L. REV. 23.

8 Wald's Pollock, Contracts, 3 ed., 222.

of negotiability. In this class may be included by analogy the assignment of rights to be acquired under an existing executory contract.1 An important exception to class (a) is the ordinary contract of agency or service where personal control over performance is a right of the creditor, for the debtor should not be obliged to submit to the control of a third party. For the same reasons class (b) is generally unobjectionable; a power of attorney does not relieve the principal of any liability, but on the contrary he remains as a surety, and if the agent fails to perform, or if performance is unsatisfactory, the creditor may sue the assignor directly. Therefore, if the assignment purports to be a creation of an agency and the act is one which may be performed through an agent, and if no stipulation to the contrary, express or implied, can be found in the contract, the assignee has the legal right to have his performance accepted and paid for at the contract price. The real difficulty is found in class (c). It is a familiar principle of agency that an agent may be appointed to pay as well as to collect a debt, but not to owe a debt; i. e., a new debtor cannot be substituted without the assent of the creditor. It follows that an attempt to delegate a duty is void. Moreover, if the attempted assignment includes a renunciation of further liability on the part of the assignor, whether express or necessarily implied, the assignor must be considered to have repudiated his contract and the other party may either rescind or sue for the breach. Ignorance of the assignment cannot prevent the accrual of this right, and on notice any time thereafter the implied offer to a novation may be refused and action brought.

In a much discussed Massachusetts case the defendant, who had bought ice from the plaintiff, became dissatisfied and contracted for ice with the Citizens' Ice Co. Subsequently the plaintiff bought out the business of the Citizens' Co. and delivered ice to the defendant without notifying him of the change until after the delivery and consumption of the ice. The court held that the contract could not be assigned, on the ground that "a man has the right to determine with whom he shall contract"; and that further no quasicontractual liability was incurred since the plaintiff was inexcusably officious. In a recent article Mr. George P. Costigan, Jr., clearly points out the fundamental difference between selecting a contractor and refusing an assignee of a contract already formed, and concludes that the plaintiff had a right to sue as assignee on the ground that the case falls within class (6) above. The Doctrine of Boston Ice Co. v. Potter, 7 Colum. L. Rev. 32 (January, 1907). It is submitted, however, that the Citizens' Co. by selling out its business manifested an intention to escape further liability, even as surety, i. e., was attempting a novation, and that therefore the rules of class (c) should apply. It follows that the court was correct in saying that the defendant could have refused to deal with the plaintiff had notice been given.

The further question of recovery on a quantum meruit still remains. Mr. Costigan criticises the court's argument on the ground that even if the plaintiff had no legal rights under the contract, he bona fide supposed himself to be the assignee and so should not come within the strict Massachusetts rule that recovery is refused in spite of the enrichment of the defendant if the plaintiff was inexcusably officious. It is believed, however, that the plaintiff's mistake was not one of fact but of law, whether a valid assignment had been made. The knowledge that the defendant did not want to deal with him is a sufficient answer to the plaintiff's claim of bona fides: he knew or should have known that on notice the defendant would exercise his rights and rescind. The action was in fact brought on an implied assumpsit, and Mr. Costigan agrees that

1 Darling v. Andrews, 9 Allen (Mass.) 106; see 4 Cyc. 17.

2 See 2 Am. & Eng. Encyc. 1036.

8 See Huffcut, Agency, 5.

♦ See Wald's Pollock, Contracts, 3 ed., 295, n. 91.

Cf. Arkansas Smelting Co. v. Belden Mining Co., 127 U. S. 379. But see Tolhurst v. Portland Cement Mfrs., [1903] A. C. 414.

6 Boston Ice Co. v. Potter, 123 Mass. 28.

7 See Keener, Quasi-Contracts, 360. Cf. Boulton v. Jones, 2 H. & N. 564.