a brief, or argues before a committee with a view to secure the passage of a law in which a particular person or corporation is interested, he has as clear a right to demand and receive fees therefor, as he has for preparing a case, or a brief, or making an argument in court. In such case he is understood as arguing as a lawyer for a client, and the committee to whom the argument is addressed know, therefore, what weight to attach to his utterances. But if he presents his arguments in the guise of a public benefactor, either in the columns of a public newspaper, or in the halls or lobbies of a legislative assembly, his pockets sweating with money secretly paid him by persons or corporations privately benefited by the proposed measure, he ought to be put in the penitentiary.

THE ILLINOIS WAREHOUSE LAW has been held to be constitutional by the Supreme Court of the United States, Chief Justice Waite delivering the opinion of the court. The question which was passed upon, and which had received an affirmative answer from the supreme court of the State, was whether the General Assembly of Illinois could, under the limitations upon the legislative power of the states imposed by the Constitution of the United States, fix by law the maximum of charges for the storage of grain in warehouses in Chicago and other places in the state having not less than 100,000 inhabitants, in which grain is stored in bulk, and in which the grain of different owners is mixed together, or in which grain is stored in such a manner that the identity of the different lots or parcels can not be accurately preserved. It was claimed that such a law is repugnant, first-to that part of section 8, article 1, of the Constitution of the United States which confers upon Congress the power to regulate commerce with foreign nations and among the several states;" second-to that part of section 9 of the same article, which provides that "no preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another;" third-to that part of the fourteenth amendment which ordains that no state shall "deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." In passing upon the first objection, the court said that the warehouses in question are used as instruments by those engaged in state, as well as those engaged in interstate commerce; but they are no more necessarily a part of commerce itself, than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with an interstate commerce, but not necessarily so. Their regulation is a thing of domestic concern, and certainly, until Congress acts in reference to their interstate relations, the state may exercise all the powers of government over them, even though in so doing it may indirectly operate upon commerce outside its immediate jurisdiction. We do not say, say the court, that a case

may not arise in which it will be found that a state, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress in respect to interstate commerce; but we do say that, upon the facts as they are presented to us in this record, that has not been done. The second objection to wit, that the statute in its present form is repugnant to section 9, article 1, of the Constitution of the United States, because it gives preference to the ports of one state over those of another-was disposed of by the single remark, that this provision operates only as a limitation of the powers of Congress, and in no respect affects the states in the regulation of their domestic affairs. The third objection is considered by the Chief Justice at great length, and overruled on the ground that, when private property is devoted to a public use, it is subject to public regulation. "In passing upon this case", say the court, 66 we have not been unmindful of the vast importance of the questions involved. This, and cases of a kindred character, were argued before us more than a year ago, by the most eminent counsel, and in a manner worthy of their wellearned reputations. We have kept the case long under advisement, in order that the decision might be the result of our mature deliberations." The judgment of the court below will be found reported in 1 Cent. L. J. 89. We shall publish the opinion of the United States Supreme Court in this important case in our next issue.

IN connection with the question as to the best manner of reporting and publishing the decisions of the courts of last resort, with which the legislatures of Missouri and Illinois seem to be wrestling, one or two thoughts may not be inappropriate. In the first place, the judges have a clear right to control the selection of the reporter, and to dismiss him at pleasure. They are peculiarly interested in the manner in which their opinions are reported and given to the public. They are, both in this state and Illinois, an ill-paid body of men, and nothing but the hope of achieving an honorable fame could induce lawyers of the first character to accept such positions. They have, therefore, the same interest and the same right to control the manner in which their written judgments, the substantial muniments of their title to fame and public gratitude, shall be published, as the literary man has in the nomination of his literary executor. Another point is, that, in order properly to discharge his duties as the literary agent of the judge, the reporter must control the publication of his own books. When he is put upon a salary paid by the state, elected or appointed for some stated term, by some power independent of the judges, and is, in a great measure, subject to the control of the whims of a parsimonious or greedy publisher, who, perhaps, is working under a contract with the state so low, that the shabbiest work will not prove remunerative;-under such circumstances no reporter can be expected to perform his functions properly. In

our judgment, no attempt should be made to regulate the business of law-reporting by a law which shall fix an inflexible price at which the reports shall be sold. From one session of the legislature to another the prices of labor and materials may change twenty-five per cent. There has been a shrinkage almost of that amount since the legislature of this state met two years ago, and within the next two years it is not at all unlikely that we shall have a corresponding advance. If this should turn out to be the case, such a contract as has been proposed, one which would oblige the publisher to sell the reports at $2.50, would prove ruinous to any person who could be found foolish enough to undertake it; and our already badly printed reports would become much shabbier than they have heretofore been. It would seem to be a reasonable conclusion, first, that the judges of the supreme court should appoint their own reporter, and have the power to remove him at pleasure; secondly, that the reporter should not receive a remuneration out of the public treasury, but that his remuneration should come from the persons who buy his reports. There is no principle founded on public policy or otherwise, which requires that an officer shall be paid out of the public treasury in order that lawyers may have cheap books. We insist that lawyers are able to pay for their books whatever they may reasonably cost; and we defend the legal profession against the imputation that they are thus to be made objects of public charity. Thirdly, in order to fairly remunerate himself for his labors, the reporter should have control of the printing and selling of his reports; should be left free, subject, of course, to the control of the court appointing him, to print and sell his reports himself, or to place them in the hands of some publishing house. Fourthly, in order to prevent extortion on the part of the reporter or his publisher, the judges of the supreme court, together with the governor, the secretary of state, the attorney-general and the auditor, might be constituted a commission, whose duty it should be to hear evidence, and, upon such evidence, establish and define the manner in which the reports should be printed, and the price at which they should be sold.

FRAUD, WHEN MORTGAGOR IS ALLOWED TO SELL.

The recent opinion of Judge Lowell, in the case of Brett v. Carter, 3 Cent. L. J., 286, has evoked an elaborate and able criticism in the Southern Law Review; and as we differ in some respects from both the judge and his critic, we propose in a few words to contribute somewhat towards an interesting discussion.

We have said that we differ from the critic; yet we are not certain that this difference amounts to anything more than a difference in words. We are half inclined to think that, on more mature reflection, he will find that in substance we agree, and may modify his own language to meet our concep

tions of accurate phraseology. For instance, we can not consent to "dispense with the old distinction between actual fraud and constructive fraud." The distinction exists in fact, and divides the cases into two classes, to wit, one where there is an actual design to cheat, and another where the law denounces the transaction as fraudulent, without regard to the motives of the parties. We believe the better course to be to recognize the distinction, and endeavor to find some fundamental principle that will unite and harmonize both classes. The first class consists of those cases that lie, as it were, on the border-land between fraud and good faith. Instances of this kind may be found in conveyances for a valuable consideration, whether the consideration is paid at the time or consists of past indebtedness. In such cases the inquiry is as to the good faith of the parties. If the parties acted honestly, the conveyance is valid; if they intended to defraud, the conveyance is void. In this class, an inquiry into the actual designs of the parties is indispensable, from the very nature of the transactions.

The second class consists of those cases where the act itself is such as the law can not tolerate. As was justly said in Reed v. Pelletier, 28 Mo. 173: "There are many acts, not the result of intentional fraud, which the law, nevertheless, from their tendency to deceive other persons, or from their injurious consequences to the public, prohibits as being within the same reason and mischief as actual fraud." Instances of this kind may be found in voluntary conveyances by insolvent debtors, and assignments for the benefit of creditors, which contain provisions that are calculated to baffle creditors. In such cases, as soon as the facts are ascertained, the transactions are denounced as fraudulent, without regard to the actual motives of the parties. For instance, a voluntary conveyance by an insolvent debtor could not be upheld by proof that the grantor, at the time of making it, never had his creditors in mind at all, but was animated solely by motives of affection for the grantee. Freeman v. Pope, L. R. 5 Ch. 538.

These illustrations show that the two classes differ in their very nature, and this difference leads to a difference in the mode of ascertaining the fraud. In the first class, an inquiry into the fraud is an investigation as to a question of fact. The inquiry is as to whether the parties actually intended to cheat. In the second class, the character of the conveyance alone is ascertained, and then the fraud is declared as a conclusion of law. As the statute, however, only reaches transfers made with the intent to delay, hinder or defraud creditors, a course of reasoning is necessary in order to bring the latter class within the statute. That process is substantially as follows: The law presumes that every one knows the law, and intends to do every act which he deliberately does, and the natural and necessary consequences of such act. Therefore, when fraud is the necessary consequence of an act, or where the law deems an act fraudulent for reasons of public policy, a person

who commits such an act is conclusively presumed to intend to defraud. Whether we say, in such cases, that the law presumes the fraudulent intent, or that the law imputes the fraud to the debtor, makes no difference. The phraseology in the two modes of expression is different, but that is all; the substantial idea is the same in both instances. This peculiar mode of reasoning is not limited to fraudulent conveyances, but pervades other branches of the civil law and abounds in the criminal law. Thus, in criminal law, the essence of an offence is a criminal intent, without which it can not exist. Actus non facit reum, nisi mens sit rea. Yet, even here, the law presumes that every one knows the law, that he intends to do what he does willfully, and that he intends the natural and necessary consequences of his act. Therefore, if a man intends, to do what the law forbids, there need not be any other evil intent. But it may be said that this course of reasoning is fictitious, and therefore not philosophical; that it in many cases imputes an intent where no such intent existed.

In a certain

sense it is at times fictitious; but the certainty of the law and the security of life and property could not otherwise be maintained. Any other course would lead to an investigation in regard to motives, intentions and mental operations, and make the judgments of the law depend on the precarious results of metaphysical inquiries. There are some acts which every one feels to be wrong, and the safety of society demands that the perpetrators shall not be permitted to escape punishment by means of subtle refinements. The doctrine of presumed intent has therefore been generally adopted, and constitutes the solid substructure upon which a large part of the law has been reared. It is philosophical in the highest sense of the term, and, as has been shown, has the advantage of great practical utility.

Having stated wherein we differ from the critic, we will now proceed to point out wherein we differ from Judge Lowell. We hold the better doctrine to be that a chattel mortgage, which contains a power of authorizing the mortgagor to dispose of the goods absolutely for his own benefit, is constructively fraudulent as a matter of law. Judge Lowell holds that such a mortgage is valid, unless there is fraud in fact. If any one will endeavor to analyze the notions involved in the idea of ownership, he will find that they are mainly involved in the conception of dominion, that is, the power of absolute disposition. The man who has the power to sell property absolutely for his own benefit is substantially the owner of that property. This is no novel proposition, but is a fundamental principle on which several classes of cases rest. Thus a general power of appointment makes the donee of the substantial owner of the property; and if he exercise the power to defeat his creditors, the property may be reached by them. Townsend v. Windham, 2 Ves. Sr. 1; Lassels v. Cornwallis, 2 Vern. 465; George v. Milbank, 9 Ves. 180; Whittington v. Jennings, 6 Sim. 493; Bainton v. Ward, 2 Atk. 172; Park v. Bathurst, 3 Atk. 269; Thomp

son v. Towne, 2 Vern. 319; Stillwell v. Mellersh, 20 L. J. Ch. 356; Tallmadge v. Sill, 21 Barb. 34; Smith v. Garey, 2 Dev. & Bat. Eq. 42. A power of recovation has always been held to render an instrument void, as to both prior and subsequent creditors. Bethel v. Stanhope, Cro. Eliz. 810, Anon., Dyer, 295 a; Rex v. Nottingham, Leane, 42; Tarback v. Marburg, 2 Vern. 510; Peacock v. Monk, 1 Ves. Sr. 127; Jenkyn v. Vaughan, 3 Drew, 419; West v. Snodgrass, 17 Ala. 549. There is no principle on which this proposition can be safely placed, except this, that the power of revocation makes the grantor the substantial owner of the property. Another class of cases in illustration of the same doctrine may be exemplified by this instance: A makes a deed of trust upon the following trusts; 1st, for the use of himself and wife during their joint lives and the life of the survivor, with power to them jointly to dispose of the property absolutely during their joint lives; 2nd, in case A survives his wife, in trust, to permit him to dispose of the property absolutely at his pleasure; 3d, whether he survive her or not, in trust for such person as he may appoint by his will, and in case of failure to appoint then to his heirs at law. Such a deed has been held void, on account of the retention of the power to dispose of the property. Brinton v. Hook, 3 Md. Ch. 477. The same doctrine was applied in Mackason's Appeal, 42 Penn. 330, and Cooledge v. Melvin, 42 N. H. 510.

From these cases the principle may be deduced that the absolute power of disposition is substantial ownership, but liability for debts is an inseparable incident of ownership.* It follows, therefore, that any device by which a person seeks to place a merely nominal title between the property and his creditors, while he retains the absolute power of disposition over it, is in violation of the policy of the law, and therefore fraudulent. This is the principle that is asserted in 3 H. VII., ch. 4, which enacts that "all deeds or gifts of goods and chattels, made or to be made of trust to the use of that person or persons that made the same deed or gift, be void and of none effect."

As a mortgage containing a power for the mortgagor to sell the property absolutely for his own benefit is in violation of this fixed policy of the law, and as every one is presumed to know the law and to intend to do every act which he deliberately does, it is a conclusive presumption of law that a mortgagor in making such a mortgage intends to delay, hinder and defraud his creditor. The act itself is in violation of the law, and no other proof of evil intent is necessary.

The same conclusion may be reached by another course of reasoning. If a mortgagor and mortgagee were to confederate for the express purpose of making such a mortgage as a merely colorable

*NOTE. To this principle there is an exception, illus trated by the case of Nichols v. Eaton, 1 Otto, 716, 3 Cent. L. J. 38, which holds that a testator has a right to devise property in trust to pay the income to a party free from liability for his debts; but that rests upon the ground that the testator has a right to put such restrictions on the devise as he may deem proper.

One of the means of furnishing constructive notice is by advertisement in a newspaper. The presumption of knowledge arising from this sort of notification is generally regarded as conclusive upon the party to whom it is addressed, when it is published by authority of a statute. Under special circumstances, and for certain purposes, the publication of any fact may go to the jury as evidence tending to prove actual knowledge of such fact in the party to be charged, though the presumptions arising from such publication may be subject to rebuttal. There are cases, however, where the proof of publication of a notice will be conclusive in its effect, when such notice was not specially authorized by statute. As, upon the dissolution of a partnership such publication will protect the retiring partners from liability upon subsequent contracts of the new firm with those who have not been dealers with the old firm, although actual notice to old customers may be necessary. Vernon v. Manhattan Co., 22 Wend. 183; Bristol v. Sprague, 8 Id. 423; Watson on Part. 385; Bernard v. Torrence, 5 Gill. & J. 383; Lucas v. Bank of Darien, 2 Stewart, 280; Magill v. Merrie, 5 B. Mon. 168; Simmonds v. Strong, 24 Vt. 642.

No particular form of words is deemed requisite to a notice of this kind. It is sufficient, if it expresses the fact to be communicated with sufficient clearness to be intelligible to a person of ordinary understanding. It is generally, however, required to be published in the paper, or papers printed or circulated in the community where the business of the firm is carried on, and should probably be that paper, in the columns of which they have been accustomed to advertise their business. Bristol v. Sprague, supra. See Lovejoy v. Spafford, 4 Cent. L. J. 80. Where, however, the notice is one authorized by statute, and is to operate conclusively upon the party notified, regardless of whether actual knowledge by this means is within the range of probability, or even possibility, much greater strictness is required. As the presumption of knowledge raised by the publication is purely technical, so must it, ordinarily, to be effective, be technically accurate. When service of original process by publication is authorized by statute, any deficiencies in its statements, its time of publication, or other requisites of the statute, can not be supplied by proof of actual knowledge conveyed to the defendant by means of the publication, or

other means. Sexton v. Rhomer, 13 Wis. 99; Lovejoy v. Lent, 48 Me. 377.

Involuntary sales of property are usually advertised in this manner, and, for the purposes of treatment here, may be appropriately divided into two classes: 1. Such as are made under a judgment, order, or decree of court; and 2, such as are made without such judgment, order or decree. In general, that strict adherence to the requirements of the statute is not so essential in cases of sales under judgment or decree, in order to sustain the title to property purchased, as it would be, where the sale was authorized without such judgment. The ground of the distinction is that the notoriety of the proceedings in court, which the law presumes, is sufficient notice to the defendant, who is supposed to watch all that follows his bringing into court, until his property has been disposed of. And even where the statute requires the publication of notice, it has been held in some cases that this is merely directory, and that a purchaser at such a sale, held without any notice at all, who purchases in ignorance of the omission of duty by the officer, will take a good title, and the party injured will be compelled to resort to an action against the delinquent officer. Minor v. Natchez, 4 S. & M. 602; Handrick v. Davis, 27 Ga. 167; Johnson v. Reese, 28 Ga. 353; Harvey v. Fisk, 9 Cal. 93. But where the purchaser knew of the failure to advertise, it has been held differently. Hayden v. Dunlap, 3 Bibb. 216; Webber v. Cox, 6 Monr. 110.

When the property is advertised, especially if it be real estate, it should be correctly described in order that the sale may be valid and effective, to vest title even in an innocent purchaser. As where, in Frazier v. Steenrod (7 Ia. 339), the land was described as all the land of the debtor located in a particular county, a purchaser would not be entitled to possession of any land in such county purchased at such sale. Morrison v. Smith, 1 Green Ch. 182; Reynolds v. Wilson, 15 Ill. 394. But immaterial variations or omissions in the advertisement would not only not operate against the title of an innocent purchaser, but, would not furnish grounds for an action against the officer making the sale. As where a sheriff omitted to mention in the advertisement the county in which the land was situated. Duncan v. Motney, 29 Mo. 368. In Tennessee, if defendant is not in possession, the sale would be void unless advertised. Trott v. McGavock, 1 Yerg. 469. And yet, when an advertisement had been published, and before the day of sale as therein specified the original venditioni exponas was returned, and an alias issued, which was in the hands of the officer at the time of the sale, it was held sufficient without any additional advertisement after the issue of the alias. Luther v. McMichael, 6 Humph. 269. A change in the name of the paper, during the publication, would not invalidate the sale. Isaacs v. Shattuck, 12 Vt. 668. Nor is the levy or sale affected by the fact that there is but one advertisement for several executions in the hands of the officer at the same

And where

time. Arnold v. Dunn, 3 Cold. 235. the sale was kept open by verbal notice given at the time to those in attendance, to allow the successful bidder to perfect his arrangements for payment, etc., he failing to complete the purchase within the time for which the sale was so held open, and the officer proceeded to sell the property without further publication of notice, such sale was held valid, for the manifest reason that, to have held otherwise, would have been to place it within the power of the defendant to obstruct the sale by colorable bids for an indefinite period. In the application to have the sale set aside, defendant stood upon his strict legal rights, asserting no equity, such as the grossly inadequate price resulting from a failure to re-advertise, which might have entitled him to relief. Isbell v. Kenyon, 33 Mich. 63.

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As to notice of time and place of sale of real estate, pursuant to execution, the provisions of the statute must be complied with in every essential particular. As where, under a statute of New York (2 R. S., p. 368, § 34), providing that the notice should be publicly advertised previously for six weeks successively, as follows:”*** and after providing for posting such notice in three public places for six weeks, further required a copy to be "printed once in each week, in a newspaper of such county," etc., the notice was posted six full weeks, but published in the newspaper the first time only thirty-nine days prior to the day of sale. Although it had six separate insertions, once in each week for six weeks, such publication was held not to be in compliance with the provisions of the statute, and the sale was declared void. Olcott v. Robinson, 20 Barb. 148; Nolle v. Fenwick, 4 Rand. 594; Elliott v. Eddins, 24 Ala. 509. But when the statute requires the notice to be published once a week for three months," or 66 for three successive weeks," the law is satisfied by an insertion in the paper once in each week, as time is divided, regardless of the fact that a period longer than seven days intervenes between successive issues of the paper. Rockendorff v. Taylor's Lessee, 4 Pet. 349; Bachelor v. Bachelor, 1 Mass. 256; Pearson v. Bradley, 48 Ill. 520; Cass v. Bellows, 31 N. H. (11 Foster) 501.

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Sales of property made in pursuance of a statutory power, and not under an order, judgment or decree of court, are aided by no presumptions. To support titles derived under such sales, strict compliance with the requirements of the statute must be shown. And in no particular are the courts more exacting than in matters of notice,not alone notice to the owners of the property, but notice to the public. Time, terms, place of sale, the amount due, to satisfy which the property is offered, and even the form of the notice where that has been prescribed, have all been held material. By much the larger portion of sales of this kind which have been the subject of judicial controversy, on account of alleged failure in the matter of notice, are those made for taxes on real estate. The manner of giving notice of these sales,

both to tax-debtors and to the public, is almost universally by advertisement in a newspaper published in the city or county where the lands are situated. When this is the designated mode, the manner prescribed is mandatory upon the officer whose duty it is to make the sale, and a strict compliance with the statutory provisions is an essential prerequisite to the validity of a title derived through such sale. Where the sale is required to be advertised for a specified time, by a designated officer, the advertisement is an official act and must be signed by one who is at the time authorized to act officially in the premises. It is not enough that he is the officer elect, who, after the publication of the notice, became duly qualified. Such subsequent qualification will not by relation clothe the act, performed before he was thereto empowered, with an official character so as to validate his subsequent acts in pursuance thereof. Langdon v. Poor, 20 Vt. 13; Spear v. Ditt, 9 Vt. 282; Broughton v. Journeay, 51 Penn. St. 31. And where the statute required the publication to be in the paper published by the state printer, and after the insertion of the advertisement, but before the time had expired, the publisher of such paper had ceased to be the state printer, such publication was illegal and the sale made thereunder was held void. Bussey v. Leavitt, 3 Fairf. 378; Bussey v. Leavitt, 12 Me. 378; Pope v. Headen, 5 Ala. 433; 4 Hill, 92. In a case under a statute requiring notice to be published that the sale would take place at the expiration of twenty days from the first publication of the notice, and the first publication was on the eleventh, but dated the tenth, and to the effect that, unless the assessment was paid within twenty days from the date of the notice, the property would be sold, etc., such notice was held insufficient to support a sale thereunder. State v. Newark, 36 N. J. 288.

So, when the advertisement was changed after the expiration of a portion of the time, and a new day of sale fixed, even with the consent of the delinquent, the sale was held void. Scales v. Aves, 12 Ala. 617. However arbitrarily the time may be fixed by statute as to its commencement and termination, it must be followed; though, if a certain number of days are designated, the last publication to be so many days before the sale, the fact that the publication was continued after the day fixed for its termination, would not be regarded as a material variation; but if the full time of publication, as prescribed, be not included between the first day and that fixed for the last publication, by even one day, it would not matter that the entire time for which the notice was published was greater than the statute required, or what extra means were employed to give it publicity,-the failure to give the notice prescribed, and for the prescribed time, would invalidate the sale. In one case in which the question as to the regularity of a sale arose in 1833, which sale took place in 1780, under the provincial act of 26 Geo. II., requiring forty days' notice, the tax for which the land was sold was voted only thirteen days before the date of the