(1903) 188 U. S. 730, 47 L. Ed. 669, 23 Sup. Ct. Rep. 401; Fidelity Trust Co. v. Louisville, supra. The principal case is thus amply sustained by judicial authority.

CONTRACTS: REMEDY PROVIDED FOR IN COMPROMISE AGREEMENT: REMEDY FOR FRAUD INDUCING COMPROMISE-Pursuant to a compromise agreement the plaintiff dropped from the calendar suits then pending against the defendants, who, in consideration therefor, transferred to the plaintiff their interest in certain lands, and agreed to procure the documents necessary to effect the transfer. The agreement further provided that the plaintiff, upon the defendants' default in performing the same, might restore the prior suits to the calendar. The defendants failed to keep their agreement. The plaintiff sues, not for breach of the compromise agreement, but for the alleged deceit of the defendants which had induced him to enter into the same and for breach of a collateral warranty as to the extent of the defendants' interests in the lands. Held: that the action would lie and that the plaintiff's remedy was not restricted to a restoration of the prior suits. Howland v. The Meximerican Company (1921) 36 Cal. App. Dec. 948. Hearing in Supreme Court denied Feb. 6, 1922.

It is well settled that one party to a compromise, after the other's default, may waive his original cause of action and sue for breach of the compromise. 12 C. J. 360. Similarly, as the principal case holds, he may sue for the deceit which induced the compromise (Grabenheimer v. Blum (1885) 63 Tex. 369) and this rule is not affected by a recital therein that the original cause of action may be revived upon the other party's default. Logically, as the English cases hold, the damages in deceit should be not the value of the thing promised, in this case the land, but of the thing given up, in this case the cause of action. In California and some other jurisdictions, however, the rule is otherwise. Hines v. Brode (1914) 168 Cal. 507, 143 Pac. 729. In the case of a contract to convey land, where the title proves defective and there are no warranties, there is ordinarily no cause of action. If, however, there have been fraudulent representations an action for deceit will give damages based on the value of the land under the California rule.

PLEADING CONTINUANCE DURING PENDENCY OF ANOTHER ACTION-A procured a judgment against B and B appealed. Pending the appeal, B sued A, who, by way of set-off, pleaded the judgment and moved for a continuance until the determination of the appeal. The motion was granted. Held: that the court had acted properly in that a judgment that would be res judicata concerning matters in a second action may be availed of by a continuance of that second action until the adjudication of the first hearing became final. Houghton v. Superior Court (1922) 63 Cal. Dec. 33.

It was early decided in California that, until judgment had been finally determined on appeal (Harris v. Barnhart (1893) 97 Cal. 546, 32 Pac. 589), or until the time for appeal has passed (Naftzager v. Gregg (1893) 99 Cal. 83, 33 Pac. 757), it was not res judicata of the issues involved in a second action. Clearly, a party to that second action might avail himself of it by a plea in abatement (Brown v. Campbell (1895) 110 Cal. 644, 43 Pac. 12; Connor v. Bank of Bakersfield (1917) 174 Cal. 400, 163 Pac. 353), and prob

ably that would be the better practice. There seems, however, to have been some confusion as to whether or not the trial court had sufficient discretionary power to grant a continuance under such circumstances. This doubt was due in a great measure to the case of Dunphy v. Belden (1881) 57 Cal. 427, holding that the mere fact that an appeal was pending in another cause was not sufficient ground for the granting of a continuance. That case was impliedly overruled in two subsequent cases (Brown v. Campbell, supra, and Jones v. Smith (1900) 128 Cal. 14, 60 Pac. 466); but, because never expressly overruled, it has often been quoted as representing the California view. (See 13 C. J. 136, n. 86.) The principal case expressly overrules it. The result is that the question of whether a continuance should or should not be granted under such circumstances is left to the court's discretion and, being a matter of discretion, the court will look to see whether or not the moving party has acted in good faith. In the future, then, the pleader who, in good faith, wishes to avail himself of a judgment which would be res judicata of some or all of the issues involved in the present cause may, until the final adjudication of the other action, do so by simply moving the court for a continuance.

POLICE: RIGHT TO TAKE PHOTOGRAPHS-The right of an officer to take the photograph of a person arrested for felony is in great confusion (8 California Law Review, 25). In California there is a law (Cal. Stats. 1917, p. 1391) which provides in section five that it shall be the duty of the board of managers of the State Bureau of Criminal Identification and Investigation to file "all plates, photographs, outline pictures, measurements, information and descriptions" received by virtue of its office. Section eight makes it the duty of the sheriffs, etc., to furnish to the bureau daily copies of fingerprints and descriptions of all persons arrested who in the best judgment of such sheriffs are wanted for serious crimes, etc. The omission in section eight of certain words, including the word "photograph" contained in section five, has raised a doubt as to the right of sheriffs to take photographs; or, in other words, are photographs included under the word "description" in section eight? This doubt would seem to be resolved in favor of the right in the case of Burke v. Watts (1922) 63 Cal. Dec. 182. Plaintiff sued the defendant for malicious prosecution in procuring his arrest. The sheriff had taken the plaintiff's photograph. The photograph was offered in evidence to enhance the damages. The defendant contended that he was not responsible for the act of the sheriff. The court concedes this would be true unless there is some law authorizing photographs to be taken. This authority the court finds in section eight of the Criminal Identification Act, saying "Clearly the photographs in question were taken as a part of respondent's description." This would seem to be the proper construction. The Bertillon identification system mentioned in the statute would be practically useless without a photograph. The evident purpose was to confer a general power to take photographs, but to leave its exercise to the discretion of the sheriff. It would obviously be foolish to require the sheriff to take a photograph and include it with every description. Many times the finger-prints are sufficient, as in the case of habitual criminals whose photographs are already in every criminal library.

TAXATION: INHERITANCE TAX: INCLUSION OF A PRIOR GIFT IN COMPUTING THE TAX RATE ON A SUBSEQUENT LEGACY-A mother in 1908 made a gift of $850,300 to her son vesting complete title. The gift was taxable by the inheritance tax act of 1905. By her will, effective at her death in 1916, she bequeathed additional property of the value of $146,773 to the same son. At the time of the second transfer the act of 1913, as amended in 1915, was in effect, which imposed a higher tax rate than the act of 1905. Neither the act of 1905 nor that of 1913, as amended in 1915, in express terms directed the addition of the two transfers in computing the tax rate. Held (on rehearing in the Supreme Court): that the gift and the legacy constituted two distinct entities, taxable separately, with complete separate exemptions, and that the prior gift could not be taken into consideration in computing the rate of tax on the legacy. Estate of Potter (Feb. 2, 1922) 63 Cal. Dec. 141.

The decision on rehearing reverses the previous holding of the court (61 Cal. Dec. 273), questioned in 9 California Law Review, 510, and reaches a more logical result in view of the previous inheritance tax cases in this state. The legislature is powerless to increase the taxation on a past transfer. Hunt v. Wicht (1917) 174 Cal. 205, 162 Pac. 639, L. R. A. 1917C 761; Estate of Felton (1917) 176 Cal. 663, 169 Pac. 392; Chambers v. Gibb (1921) 61 Cal. Dec. 790, 198 Pac. 1032. The tax on the gift was therefore unalterable. The chief question in the principal case was whether the legislature intended under the later acts to include the value of the gift in estimating the tax rate on the subsequent legacy. That the legislature has power to take such prior gifts into consideration and require the addition of all transfers between the same donor and donee to be regarded as one succession is undoubted. But was such the legislative intention? The act of 1913, as amended in 1915, is not explicit on the point. In the construction of tax statutes every intendment is in favor of the taxpayer. Connelly v. San Francisco (1912) 164 Cal. 101, 127 Pac. 834; Lewis' Sutherland on Statutory Construction, 537; 1 Cooley on Taxation, 453. Furthermore, the enactment in 1917 (Cal. Stats. 1917, p. 883) of an express provision requiring the addition of several transfers between the same donor and donee in computing the tax indicates doubt as to their addition under prior acts. U. S. v. Field (1921) 255 U. S. 257, 65 L. Ed. 335, 41 Sup. Ct. Rep. 256. Such considerations fortify the position taken by the majority opinion in the instant case. The divergent opinions presented neatly reflect the hopeless task of the court in construing ambiguous and fragmentary legislation, and most inheritance tax difficulties root in this same evil. The inheritance tax innovation is as yet too novel to be thoroughly understood in all its ramifications and it is not to be expected that the legislature could omnisciently provide for every possible situation by any a priori scheme. Inheritance tax law is still in process of building on the trial-and-error method. At every session the legislature apparently must "shatter it to bits and remould it nearer to the heart's desire." But in view of the fact that the inheritance tax is purely a creature of legislation, and considering also the almost unlimited power, constitutionally, of the legislature in this field, the burden should be on it to make its intention clear. The court should not by implication increase the "high cost of dying."

Book Reviews

COLLECTED LEGAL PAPERS. By Oliver Wendell Holmes. Harcourt, Brace and Howe, New York City, 1920. pp. vii, 316.

Many, if not most, good books are greater than their authors. Occasionally, however, chiefly in the case of the very greatest personalities, the book is felt to reveal but a portion of the man; one feels in reading such books that the writer is more than the expression of his thoughts. Justice Holmes is one of those authors, if indeed in these days of multiplication of books one may properly term him an author, whose name is scarcely known to the cataloguer. For Justice Holmes has almost too literally adopted Leslie Stephen's dictum that the only excuse for the writing of books is the necessity of earning a living, or the fact that one can't avoid their writing. The "Common Law" was a series of lectures delivered at the Lowell Institute; the "Speeches" and these "Collected Legal Papers" are strictly occasional. Justice Holmes has never prophesied from the house tops; his few public utterances, outside his judicial opinions, have been made, almost without exception, at the editor's or the toastmaster's command.

The present volume, he says, is made up of "little fragments of fleece left upon the hedges of life." The papers and speeches contained between its covers have almost without exception been familiar to lawyers whose interests and opportunities carry them beyond the law reports and statutes, and have been cherished by those so fortunate as to have become acquainted with them as treasured utterances. Certainly no other writer on legal subjects in the English tongue, with Maitland as a possible exception, has so combined the gifts of philosophical insight, of historical imagination and of literary expression. The regret that he has not more frequently or more extensively given of his great wisdom and learning in books is perhaps vain. His "Common Law" enjoys the distinction, unique for a law writer, at least since Story's day, of translation into foreign languages. The Holmes of Vegelahn v. Guntner, of United States v. Abrams, of Lochner v. New York, of Haddock v. Haddock, of Truax v. Corrigan, has built his personality so deeply in our common life that his immortality is as certain as if he had expanded the "Common Law" to a dozen stately volumes.

Justice Holmes has spoken in this little volume with more intimacy than judges are wont to speak. What a boon such a confession would have been from a Marshall or a Mansfield! What did these great men think about life, about law as a part of life? One does not doubt that Mansfield's friendship for Pope, that the fact that he sometimes "drank champagne with the wits, had significance for the future of the law of England and America; but what if we had an autobiography of Mansfield even remotely comparable to that of Gibbon? Not that Justice Holmes has given us this, nor has he even told the story of his spiritual

life like Goethe or Henry Adams. But the personal element is as insistently present in his utterances as in the great essayists, Montaigne or Hazlitt, who tell us so much of themselves, while they are telling us about the world.

Goethe said of Schiller that you could tell he was a great man if you only saw him paring his nails. Even if we did not know that this writer was our greatest living judge, our most profound legal scholar, we would recognize in the pages of his Collected Papers a great personality, a seeker after truth. No shallow optimist speaks here, satisfied with an America where everyone owns his Ford and Victrola, no dogmatist resting comfortably upon formulae however venerable; but one, like Rabbi Ben Ezra, whose view of life is thus expressed:

"Rather I prize the doubt

Low kinds exist without,

Finished and finite clods untroubled by a spark."

O. K. McMurray.

THE CORPORATION AS A LEGAL ENTITY. By James Treat Carter, Ph.D., of the Baltimore Bar. M. Curlander, Baltimore, 1919. pp. xv, 239.

This book will be of particular use to a practitioner in Maryland, for only as to her laws is the treatment exhaustive. As to its accuracy or adequacy in this respect the reviewer is not so presumptuous as to judge. In the first part of the work, however, covering some 160 pages, the matter is valuable elsewhere. Mr. Carter's consideration of the nature of a corporation and, above all, of the various currents of theory thereon in the United States is well reasoned, well expressed, and consequently illuminating. His book is recommended to those who, faced with a problem as to corporate entity, would have or would refresh knowledge of fundamentals, and particularly to those who stigmatize a corporation as a "fiction" without knowing exactly what they mean. A. T. Wright.

MODERN LEGAL PHILOSOPHY SERIES. Edited by a Committee of the Association of American Law Schools. Second Edition, 1921-1922. The Macmillan Company, New York City, New York.

Legal philosophy, which is taken as an essential part of a lawyer's equipment in most countries of continental Europe, has until recently formed a minutely small part of the reading of either busy or leisurely practitioners. It will perhaps be long before it will seem natural for American lawyers to interest themselves in the matters that form the content of this series. However, before these books became available, those lawyers who might have interested themselves in legal philosophy would have been hard put to it to find even the elements of the subject in an English form.

That defect was remedied some eight years ago when the Association of American Law Schools projected and published this