ther understood and agreed that in case said examination does not bear out the circulation claimed and embodied in this contract and shall be found to be materially less than six hundred thousand copies (600,000) the expense of this examination, not to exceed one hundred dollars ($100.00) shall be borne by the said the Modern Priscilla, otherwise by the said Cream of Wheat Co.

It is further understood and agreed that in case said examination shows the circulation to be materially less than above stated the Modern Priscilla will, immediately after said examination, make a pro rata rebate to the Cream of Wheat Co. for said shortage in circulation, paying said rebate in cash.

This action was brought by the publisher to recover the amounts alleged to be due for the advertisements published in 1920 and 1921. The circulation books of the publisher had been examined by expert accountants during the years in question. Their audit showed that, if certain agency subscription agreements, wherein the publisher actually received less than 50 per cent. of the published subscription prices, were excluded, the circulation of the magazine fell materially below the average circulation as guaranteed. As stated, it was held that, under the terms of the contract, these agency subscriptions were properly excluded from the computation. It was accordingly held that the Cream of Wheat Co. was entitled to recover by way of setoff the sum of $3,745.64.

In construing the contract, the court said:

The manifest intention is that the circulation shall consist solely of subscriptions paid in cash, and all other subscriptions are not to be counted. It was correctly ruled that the subscription agreements of the plaintiff with the Crowell Publishing Co., to accept subscriptions in connection with the plaintiff's branch agency as shown by the record, as well as similar contracts with other companies, which contained no reference to sales of single copies, but merely covered arrangements for subscriptions to be obtained for the plaintiff by the several agencies, were not within the terms of the contracts on which the action is brought. The plaintiff, moreover, by reason of the rebate in the subscription agreements, did not receive in cash fifty per cent. of its regular price for subscriptions. The word "receives" as used in the contracts is synonymous with the word "accepts". The paid subscriptions received and accepted are to be in cash, and cannot be diminished below 50 percentum of the published subscription price by rebates or gratuities in any form to agents under agreements with the plaintiff to increase the circulation of its magazine.

American Bank Liable to Depositor for Funds Seized by Soviet Republic

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N 1917 the Soviet Republic seized the funds on deposit in the banks in Petrograd. Among the banks thus treated was a branch of the National City Bank of New York.

As a result of the seizure a question has arisen as to whether the resulting loss should be sustained by the bank or by the depositors in whose names the funds were deposited.

The Appellate Division of the New York Supreme Court has decided that the loss must be borne by the bank, on the theory that when money is deposited in a bank it becomes the property of the bank and the bank is merely the debtor of the depositor.

The case in which this conclusion was reached is Boris N. Sokoloff v. National City Bank of New York, decided April 4, 1924.

From the facts, it appeared that in June, 1917, the plaintiff, a citizen and subject of Russia, paid to the defendant bank $30,225. The bank agreed to open in its Petrograd branch a deposit account in the plaintiff's favor for an equivalent amount in rubles. The account was opened and a portion withdrawn. Subsequently, the defendant failed to honor demands for the balance, and this suit to recover the balance was brought.

One of the defenses set up by the bank was that before the bank could open a branch in Petrograd it had to agree to certain rules which provided, among other things, that litigation in connection with its Russian business must be in the Russian courts and subject to the Russian laws; that in March and November, 1917, revolutions took place in Russia, as a result of which the Soviet Republic Government was established, and that the Soviet Republic, by force of arms, took possession of the defendant's Petrograd branch and all of its assets and liabilities, including its liability to the plaintiff.

The court held that this was not a sufficient defense. When the account was opened, the relation of debtor and creditor arose between the plaintiff and the defendant bank. The money seized by the Russian Government belonged to the bank. There was nothing belonging to the plaintiff in the hands of the bank which the Russian Government could seize. The bank was in the same position as an individual who alleged, in defense to an action for money loaned, that he was robbed of the money while carrying it from his bank to the creditor:

In answer to the defendant's argument that the facts alleged constituted a defense, the court said:

The difficulty with the contention urged by the defendant that the defense is valid, is two-fold; first, that when the plaintiff 'executed its contract with the defendant, the well-recognized relationship between a depositor and a bank arose, namely, that the bank became simply a debtor of the plaintiff, without plaintiff having a right to claim any specific property belonging to the bank. When the bank had difficulties with the Russian Government, there arose an independent claim between the bank and the Russian Government. There was, however, no specific res belonging to the plaintiff to which the doctrine of frustration could apply. As was said by Mr. Justice Field in Williams v. Bruffy (96 U. S. 176, 187), which was a case where a resident of Pennsylvania sued a resident of Virginia in assumpsit for goods sold and delivered and the defendant pleaded that he was forced to pay the amount of the indebtedness under a decree of the Confederate States Government confiscating all claims of citizens of the Union against citizens of the Confederate States: "But debts not being tangible things subject to physical seizure and removal, the debtors cannot claim release from liability to their creditors by reason of the coerced payment of equivalent sums to an unlawful combination."

Both parties urge that this confiscation by the Soviet Government was justifiable on the ground of a war tax. The respondent maintains that the tax was a tax against the plaintiff as a resident of Russia and was a confiscation of the account, which was owed to the plaintiff. The appellant, on the other hand, contends that there was an appropriation of the entire money of the defendant in Russia as a war tax. The fact that the plaintiff has a claim as a creditor of the National City Bank separate and distinct from the claim of the defendant as against the Russian Government is more clearly seen, however, if we assume that instead of the war tax being the confiscation of 100 per cent. of the assets of the defendant bank, the Soviet Government had placed a tax of 75 per cent. upon the assets of the defendant bank, in which case the defendant could not urge this tax in diminution of its debt to the plaintiff. As regards the claim of the plaintiff, the defendant bank is in no different position than would be a private person who alleged in defense to a suit for money loaned, that he was robbed of the money which he had accumulated to pay the debt while he was carrying it from the bank to his creditor.

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A second objection to the defense is that while a defense of impossibility is recognized where the parties enter into a contract upon the assumption that a particular thing essential to its performance will continue to exist and be available for the purpose and neither party agrees to be responsible if it is not so available, the contract must be subjected to an implied condition that if before the time of performance, without fault of either party, the thing ceases to exist or be available, the contract shall be dissolved and the parties excused from performance. This defense, however, only goes so far as to

excuse the performance of an executory contract. It has never been held available for the purpose of unjustly enriching one party at the expense of the other (Tobac v. Fetner, 139 App. Div. 248). The utmost that the defendant can urge is that it be relieved from the performance of its agreement in so far as the agreement has been rendered impossible of performance, but on no principle can it be urged that the defendant became relieved from the obligation of repayment of the amount received when through no fault on the part of the plaintiff it was unable to complete the contract. If the defense were pleaded as an excuse to an action for damages for failure further to perform the contract, a different question would arise, but here the defendant is seeking to excuse itself not from further performance of the contract, but from payment of a debt owing the plaintiff arising from the receipt of money from the plaintiff for a specific purpose which the defendant is unable to carry out, and hence there arises an obligation to repay the plaintiff.

It follows that the order appealed from should be reversed with $10 costs and disbursements, and the motion to strike out the complete and partial defense granted with $10 costs.

It has been stated in the press that this decision, if upheld, will affect other litigation embracing millions of dollars.

Federal Trade Commission Cannot Compel Production of Irrelevant Documents

"Fishing Expeditions" Barred

HE Act of September 26, 1914, directs the Federal Trade Commission to prevent the use of unfair methods of competition in commerce, and confers upon the commission certain powers to enable it to accomplish that end. Section 9 of the act provides that for the purposes of the act the commission shall at all reasonable times have access to, for the purposes of examination, and the right to copy any documentary evidence of any corporation being investigated or proceeded against and shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation.

This section, however, does not authorize the commission to delve indiscriminately into the private books and papers of a corporation. It has been so held by the United States Supreme Court in Federal Trade Commission v. American Tobacco Co., Same v. P. Lorillard Co., Inc., 44 Sup. Ct. Rep. 336. In the opinion in this case the court

stated that it did not believe Congress intended "to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime."

It appeared that the commission, acting pursuant to a resolution of the Senate, directing it to investigate the tobacco situation as to domestic and export trade, with particular reference to market price to producers, sought writs of mandamus requiring the American Tobacco Co. and P. Lorillard Co., Inc., to produce certain documents. The documents required of the American Tobacco Co. were all letters and telegrams received by the company from, or sent by it to all its jobber customers, between January 1, 1921, and December 31, 1921, inclusive. Similar documents, were required of the P. Lorillard Co., and also all letters, telegrams or reports from or to its salesmen, or from or to all tobacco jobbers' or wholesale grocers' associations, all contracts or arrangements with such associations, and correspondence and agreements with a number of corporations named.

The petitions for the writs were denied by the District Court. The judgment denying the petitions was affirmed by the Supreme Court on the ground that it did not appear that the papers sought by the commission were material to the investigation. In its opinion, written by Justice Holmes, the court said:

The mere facts of carrying on a commerce not confined within state lines and of being organized as a corporation do not make men's affairs public, as those of a railroad company now may be. Smith v. Interstate Commerce Commission, 245 U. S. 33, 43, 38 Sup. Ct. 30, 62 L. Ed. 135. Anyone who respects the spirit as well as the letter of the Fourth Amendment (prohibiting unreasonable searches and seizures) would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire (Interstate Commerce Commission v. Brimson, 154 U. S. 447, 479, 14 Sup. Ct. 1125, 38 L. Ed. 1047) and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime.

We do not discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to attribute to Congress that intent. The interruption of business, the possible revelation of trade secrets, and the expense that compliance with the commission's wholesale demand would cause are the least considerations. It is contrary to the first principles of justice to allow a search through all the respondents' records, relevant or irrelevant, in the hope that something will turn up.

The right of access given by the statute is to documentary evidencenot to all documents, but to such documents as are evidence. The analogies