appellant, he also claims that the ordinance is void because it punishes the prohibited acts "without pretense, or any form of proof that they were injurious to the well-being of the town, or that prudence required its passage." The answer is, that neither in the ordinance itself, nor in the indictment founded upon it, is it necessary to allege or explain the reasons for its enactment or the exigency out of which it grew. It is of the nature of legislative bodies to judge for themselves, and the fact and the exercise of that judgment is to be implied from the law itself. Stuyvesant v. Mayor of New York, 7 Cow. 606; Martin v. Mott, 12 Wheat. 19; Rector, etc. of Trinity Church v. Higgins, 4 Rob. 1.

We do not see, therefore, that any error was committed in the court below. The judgment must be affirmed, and the case remanded for the proper sentence to the Court of Sessions of the County of Albany.

ABSTRACTS OF RECENT DECISIONS

SUPREME COURT OF THE UNITED STATES

October Term, 1880.

MANDAMUS-FUNCTIONS OF THE WRIT.-Application for rule on the Circuit Court of the United States for the District of Iowa, Northern Division, to show cause why a writ of mandamus should not issue, denied, 1, because it is an attempt to use the writ of mandamus as a writ of error to bring here for review the judgment of the circuit court upon a plea to the jurisdiction filed in the suit; and 2, because, if a writ of mandamus could be used for such a purpose, the judgment below was clearly right. Under section 739 of the Revised Statutes, no civil suit, not local in its nature, can be brought in the Circuit Court of the United States, against an inhabitant of the United States, by original process, in any other State than that of which he is an inhabitant, or in which he is found at the time of serving the writ. It is conceded that the person against whom this suit is brought in the circuit court, was an inhabitant of the State of Massachusetts, and was not found in or served with process in Iowa. Clearly, then, he was not suable in the circuit court of the District of Iowa; and unless he could be sued,no attachment could issue from that court against his property. An attachment is but an incident to a suit, and unless a suit can be maintained, the attachment must fall. The act 'providing the times and places of holding the Circuit Courts of the United Stutes in the District of Iowa,' 21 Stat. 155, ch. 120, divides that district into four divisions, and requires suits against an inhabitant of the district to be brought in the division in which he resides. The provision that. "where the defendont is not a resident of the

district, suit may be brought in any division where property of the defendant is found' (sec. 2), applies only to suits which may be properly brought in the district against a non-resident. Such a suit, if not local, must be in the division where the defendant is found when served with process; if local, in the division where the property, which is the subject-matter of the action. is situated. There is not manifested anywhere in this act an intention of repealing section 739, so far as it affects the Iowa district. Denied." Opinion by Mr. Chief Justice WAITE.Ex parte Des Moines, etc. R. Co.

TAXATION-INDIANS-SACS AND FOXES.-The plaintiff, Sarah A. Pennock, is an Indian, and a member, by "birth, blood and descent," of the eonfederate tribes of Sacs and Foxes of the Mississippi. At the date of the treaties of 1859 and 1867, between those tribes and the United States, she was the wife of William Whistler, a member of the same tribe. After his death she intermarried with one Henry Pennock, a white person, a citizen of the United States, and a resident of Kansas, with whom she now lives. In May, 1871, she was the owner in fee of certain lands in Franklin County, in that State, which were listed and assessed by its officers for taxes in the same way as other real property in the county. The taxes and charges being unpaid, the lands were sold to pay them, and certificates of sale given. To restrain the issue of the deeds to the purchasers, and to set aside the tax sale as illegal, the present suit was brought. The district court of the county held the sale legal, and gave a decree for the plaintiff. The Supreme Court of the State reversed the decree and rendered judgment for the defendants, and the plaintiff has brought the case, on writ of error, to this court. Held, that as the plaintiff had chosen to take a perfect title (rather than the modified tribal title), to her lands, and had received a patent therefor, with the absolute ownership, she and her property came under the control of the State, and are bound to bear a portion of its burdens. Affirmed. In error to the Supreme Court of Kansas. Opinion by Mr. Justice FIELD.-Pennock v. Franklin County.

COLORED SCHOOLS IN THE DISTRICT OF COLUMBIA SUCCEEDING CORPORATIONS.-In 1870 the Board of Trustees of Colored Schools for the District of Columbia employed the plaintiff, who is an architect by profession, to prepare the plans and specifications for a school-house in Washington, and to superintend its construction, agreeing to give him for his services five per cent. on the cost of the building. This was the ordinary rate of charge as compensation for similar services in the district. In 1872 the building was constructed, and cost about $66,000. The board of trustees approved of the work, and paid the plaintiff $1,100 in cash, and gave him a voucher for $2,155 more, being for the balance due, and also the sum of $255 for services in superintending repairs upon other buildings. This voucher the plaintiff sold and delivered to the Freedman's Savings and

Trust Company, for whose benefit this action is brought. The board of trustees of colored schools have since been abolished, and a new board organized to take charge of all the public schools, whether of white or colored children. But when the original board existed, it was the agent of the district for the purposes entrusted to it, and could bind the district for the services rendered by the plaintiff. The building constructed, and the other buildings upon which the repairs were made under his superintendence, belong to the district and are used by it for colored schools; yet the amount due him for which the voucher was given has never been paid. The jury were of opinion that the district should pay it, and we agree with them. The disallowance of the claim by the board of audit, if such had been allowed to be proved, would not have concluded the plaintiff. That board was, not a judicial body, whose action was final; it exercised little more than the functions of an accountant. A claim allowed by it was not necessarily a valid one; a claim disallowed was not, therefore, illegal. Its action either way left the matter open to contestation in the courts. Though the contract of the plaintiff with the board of trustees was made before the act creating the district into one municipal corporation, the work was not completed until afterwards, when it was accepted and approved. The new corporation succeeded to the property of the two former ones, and also to their liabilities. Affirmed. Opinion by Mr. Justice FIELD.-District of Columbia v. Cluss.

SUPREME COURT OF MISSOURI.

February 1881.

ADMINISTRATOR-FAILURE OF DUTY-WIFE'S ABSOLUTE PROPERTY.-Suit against Benton P. Taylor on his administrator's bond to recover the sum of $882.17, for property unaccounted for belonging to said estate, and for neglect of duty in not collecting certain debts due the estate. The court at the trial gave the following instructions: 1. The court declares the law to be that if the said Benton P. Taylor failed to exercise such diligence in and about the collection of the notes set forth in breaches five and six in relator's petition, as a prudent man would exercise in and about his own affairs, then the said Taylor is liable on said bond to the amount of damages which said estate may have sustained by reason of his failure to exercise such diligence. 3. If the court should believe from the evidence in the case, that the said defendant, Taylor, could by the institution of suit and prosecution of suit and prosecution of same to judgment and execution against Burr Feagan, one of the makers of the notes set forth in breaches five and six of relator's petition, have collected the amount of same from him, and that in failing to take such

steps said estate has been damaged thereby, then the court must find for relator in such sum in said breaches as said estate has been damaged. Held, that they were properly given-Sherwood, C. J, not concurring on this point. An instruction to the effect that a sewing machine could not be allowed the wife of the deceased under sec. 33, W.S. page 88, was properly refused, there being no sound reason why a sewing machine should not be included in the expression "other implements of industry. Affirmed. Opinion by SHERWOOD C.J. State ex rel. Steers v. Taylor.

March 1881.

DEED OF TRUST-SALE OF PROPERTY IN MASS-PUBLICATION OF NOTICE OF SALE.-The mere fact that property, which is susceptible of division, has been sold under a deed of trust in mass, will not render the sale void. It is only where a substantial injury has been inflicted by a failure to subdivide and sell in parcels, that a court of equity will interfere and set the sale aside. Kelly v. Huut, 61 Mo. 469. If no steps be taken to avoid such sale, it must of course be regarded as valid. When thirty days' notice of sale is required, thirty days should of course intervene between the first publication and the day of sale; and although it may be customary and prudent to continue the notice in every issue of the paper from the first insertion to the day of the sale, yet it has been expressly decided that thirty days' notice, in a daily paper, does not mean thirty days' daily notice in such paper. White v. Malcom, 15 Md. 543; Johnson v. Dorsey, 7 Gill. 286; Lefter v. Armstrong, 4 Iowa, 482. Where, however, the notice has not appeared in every issue of the paper from the first insertion to the day of sale, and the omission to make a continuous publication is of such a character, or is attended by such circumstances as to mislead the public and work injury to the party whose property is sold, the sale may be set aside. Stine v. Wilkson 10 Mo. 96. To avoid such a contingency, therefore, in all cases where notice is required to be published in a daily paper, the notice should be published in every issue from the first insertion up to and including the day of sale. Affirmed. Opinion by HOUGH, J.-German Bank v. Stumpf.

JUDGMENTS OF PROBATE COURTS-RES ADJUDICATA-CURATOR'S BOND.-The decisions of this court are numerous to the effect that final settlements made in probate courts by curators, and others acting in similar capacity, occupy the same footing to all intents and purposes as do the judgments of other courts of competent jurisdiction. In pleading such judgment as res adjudicata, it is equally conclusive whether it be formally pleaded or, as supporting the general issue, be offered in evidence. Marsh v. Pier, 4 Rawle, 288; 1 Greenlf. § 531, and cases cited; Bigelow on Estoppel, 590, and note; Krekeler v. Ritter, 62 N. Y. 372; Miller v. White, 50 N. Y. 137. A curator is not liable to an ordinary action for money had and received; but resort must be

QUERIES AND ANSWERS.

[***The attention of subscribers is directed to this depart ment, as a means of mutual benefit. Answers to queries will be thankfully received, and due credit given whenever requested. To save trouble for the reader each query will be repeated whenever an answer to it is printed. The queries must be brief; long statements of facts of particular cases must, for want of space, be invariably rejected. Anonymous communications are not requested.]

QUERIES.

19. A deposits money in a private bank of discount and deposit in 1860, and checks out various amounts in 1861, leaving a balance to A's credit. It is understood between A and the bank, that the balance shall remain to A's credit to be applied to A's funeral expenses, and that it will not be checked out before A's death. Twenty years elapse and, in the meantime, the partnership operating the bank changes repeatedly, notices of dissolution, etc., being given at various times in the papers. The remaining partners fail, and A brings suit against the partners who were in the bank at the time of her deposit, but have since withdrawn, for the balance due. Can A recover at all; if so, against whom?

Cincinnati, April 9, 1881.

S.

20. A and wife execute to B, as trustee for C, their deed of trust on real estate in Missouri, to secure payment of promissory note; in case of defauit trustee is authorized to sell at public sale, first giving, however, weeks' notice by advertisement in some newspaper. The scrivener has omitted to fill the blank as to how many weeks' notice is to be given. Can the trustee convey the title under a sale by giving notice for a reasonable time, such as is usually given under deed of trust sales, or must resort be had to a court of equity to enforce deed of trust?

C.

22. A sells B a tract of land upon credit; executes a deed which is duly recorded, and in the deed reserves a specific lien on the land for the unpaid purchasemoney. After the sale, a railroad is constructed through the land by a deep cut. To this railroad, B, who is in possesssion, gives the right of way. For years the railroad company fail to finish the road. In the meantime A files his bill, has the land sold (without notifying the railroad company, to enforce his lien); at the sale buys back the land and has title vested in him, leaving B largely indebted to him upon the original debt. The railroad company now pro

PRINCIPLES OF CONTRACT AT LAW AND IN EQUITY,being a Treatise on the General Principles Concerning the Validity of Agreements, with a Special View to the Comparison of Law and Equity, and with References to the Indian Contract Act, and occasionally to Roman, American and Continental Law. By FREDERICK POLLOCK, LL.D. First American from the second English edition, with notes. By Gustavus H. Wald, of the Cincinnati Bar. Cincinnati, Robert Clarke & Co., 1881.

This edition of Mr. Pollock's treatise presents to the American bar one of the best, if not the very best, of the modern English works on the law of contract. Mr. Pollock's treatise was first published in England, in December, 1875, and in April, 1878, a second edition was issued. His view in adding another to the existing works on the general subject, as stated by him in the preface to the first edition, was to consider, more particularly than had been previously done, the doctrines of courts of equity on questions arising upon contract,-questions of more weighty importance day by day, and which, except in distinct treatises on equity jurisprudence, have been hastily considered by earlier authors who were accustomed, as a rule, to confine themselves to the common law parts of the subject. For these reasons, there was abundant demand for such a treatment of the law of contract; and for these reasons, as well as for the excellence of the execution of the task, Mr. Pollock's treatise was not long in receiving the stamp of professional approval in his own country.

The divisions and general arrangement of the work tend greatly to facility of reference. Chapter I treats of Agreement, Proposal and Acceptance, and answers the question "Is there an agreement concluded in terms?" Chapter II treatt of the Capacity of Parties and the question “Is is made between competent parties?" Chapter III discusses, Form of Contract: "Does it satisfy the requirements of the law as to form?" Chapter IV, Consideration: "Does it satisfy the law as to consideration." Chapter V, Persons Affected by Contact; "Who may now or hereafter sue or be sued upon it?" Chapter VI, Unlawful Agreements: "Is there anything in the agreement to interfere with its validity by reason of unlawfulness of object?" Chapter VII, Impossible Agreements: "Is there anything in the agreement to interfere with its validity by reason of its impossibility of performance?" Chapter VIII, Mistake: "Is there anything to prevent the expressed consent of

the parties from having its full effect by reason of mistake?" Chapter IX. Misrepresentation.. Chapter X, Fraud. Chapter XI, Duress and Undue Influence: "Is there anything to prevent the expressed consent of the parties from having its effect by reason of misrepresentation, fraud, duress or undue influence?" Chapter XII, Agreements of Imperfect Obligation. "Is there any other reason why the agreement is not enforceable?" As in nearly all English law books, considerable space is devoted to the examination of individual cases of prominence, the author quoting at length from the judgment of the courts, and stating the facts very fully. There is an advantage in this mode both to the student and the practitioner, which has not always been recognized by our own writers.

Mr. Pollock must be congratulated upon the manner in which his work is presented to the profession on this side of the water. Not every English law writer of the past decade has been able to say that he was proud of the child of his pen as he saw it arrayed in its Transatlantic dress; more than one there are, we may imagine, who can never look upon the American edition of their books without a shudder, as they stand before them in their cheap and shrunken bindings, printed on poor paper, with poor type and worse ink, after escaping the vagaries of an uneducated proof reader, and the hasty and unconsidered additions of an incompetent editor. Mr. Pollock I will not be called upon to endure this. The typography of the book before us is fair; though not up to the standard attained by at least two American publishers of law books, its mechanical execution hardly deserves any adverse criticism. But most important of all is the work of the American editor, and this, after a thorough examination, we must commend as most excellent. Seldom has an English law book received such careful and exhaustive annotation at the hands of an American lawyer; rarely has an English law writer obtained so learned and diligent an editor. Mr. Wald was to our personal knowledge peculiarly competent to undertake the editing of a work on contract, for the reason that for several years previous to undertaking the work, he had made the law of contracts his particular study. In the preparation of this edition he has not sacrificed thoroughness to speed, and rather singularly, for these times, a publisher's usual eagerness to forestall the market has been wanting, and nearly three years of close application and study are represented in Mr. Wald's notes to the present treatise. We have not space to particularize, and therefore shall not attempt here any detailed examination of Mr. Wald's additions; but the close scrutiny to which we have subjected the book during the fortnight it has been in our hands, failed to suggest anything lacking either in his method or in his execution. In the English edition the table of cases cited covered sixteen pages; the American edition has added thirty-four pages, making. in all, fifty pages of cases, and a book of nearly 800 pages in

-Says the New York Daily Register, in discussing the question as to whether lawyers are goodnatured: There is a difference of opinion on this subject. Witnesses under cross-examination think they are not. The fact is, that if their trials are considered, they will be deemed the most good-humored people in the world. Wit and humor are not always in place, either at the bar or on the bench. With all their wit and keenness, the gravity of a judge has become a proverb. The place for a judge to be witty is at the table. Fun may disconcert the most momentous affairs. The humorous old lady who had made a will several times, and being about to re-execute it, and being asked in the presence of witnesses whether it was her last will and testament, said she did not know about that, involved her estate in litigation, because a matter-of-fact witness testified the old lady said she did not know whether it was her will or not. The most experienced old solicitor, full of confidences, investments, family secrets and privileged communications, generally is so sedate and unimpassive that he passes sometimes for a most ungenial temper, but he may be all the more trusted for his reticence and gravity. But with all allowances for caution, good humor is a great instrument with a successful counsel, and wins many a case that ill nature and friction would lose. The art of the greatest counsel is seen in the rareness with which they use asperity, and the efficiency and effectiveness with which they use that and a genial humor in turn. Lawyers have many and peculiar reasons for ill humor, and they have a right to indulge in the worst kind of ill nature that any body has. They have al their own grievances and most of their clients' to bear. There is always another lawyer against them, and just half the time the court also; and when, after all this, the bill is not paid, here is as good a cause for acidity of temper as there can be.

"My case is just here." said a citizen to a lawyer the other day; "the plaintff will swear that I hit him. I will swear that I did not. Now, what can you lawyers make out of that, if we go to trial?" "Five dollars apiece!" was the prompt reply.

cases within the statute of frauds. The fraud

ST. LOUIS, APRIL 29, 1881.

CURRENT TOPICS.

believed the matter to be true, or that he had reason to believe it, but in asserting positively his knowledge of that which he did not know."

Leddell v. McDougal, recently decided by the English Court of Appeal, is of interest upon the question of liability for misrepresentations as to the solvency of another, where no actual fraud was intended. The facts of

the case were as follows: The plaintiff, Leddell, being about to grant a lease to one Thornton, wrote to the defendant, McDougal, to whom he had been referred by Thornton, saying: "Thornton is desirous of leasing premises from us, of about the annual value of £400,

and we will be glad if you

will say if you know him to be in good and responsible position, to meet the responsibility of such an undertaking, and if you can recommend him as a safe and advisable tenant." McDougal answered: "I have much pleasure in replying affirmatively." On the strength of this answer, Thornton was accepted as tenant, but afterwards deserted the premises without paying any rent. McDougal, when he answered as above, was well ac quainted with the antecedents of Thornton, and knew him to be a person of no substantial means, who had twice previously failed in business similar to that which he intended to carry on upon the premises in question; but he had no positive intention to deceive the plaintiff. Upon these facts it was held, reversing the decision of vice-chancellor Bacon, that the defendant was liable. As to the question of the fraudulent intent, Jessel, M. R., adopted the language of Lord Kenyon in Haycraft v. Creasy, 2 East, 103: "It is said that I imputed no fraud to this defendant at the trial. It is true that I used no

hard words, because the case did not call for them. It was enough to state that the case rested on this: that the defendant affirmed that to be true within his own knowledge, which he did not know to be true. This is fraudulent not perhaps in that sense which affixes the stain of moral turpitude on the mind of the party, but falling within the notion of legal fraud, such as is preserved in all Vo' 12-No. 17

The Weekly Jurist of Bloomington, Ill., announced in its issue of April 21, its discontinuance, "owing to the great difficulty in making collections." The fate of this paper, which was not without a very considerable excellence, might be made the subject of some very sage remarks in the way of friendly warning to those gentlemen who are fired with the ambition of solving the problem of whether the bar of a particular State, or of a particular locality in a State, is sufficiently numerous and progressive to support a local law journal. It is, however, not worth while to indulge in that sort of philanthropy, for the reason that people who are infected with that kind of madness, are not usually amenable to argument of any other nature than the brutal checkmate of experience. Legal journalism is as yet in its infancy, and it is difficult to set the limits precisely to its field of usefulness, and say just what objects should be sought to be accomplished by it. For our own part we are convinced, that while on the one hand it cannot usurp the office of the text writer, and retail treatises to its readers, on the other it cannot take the place of the official reports, which is about what has been attempted in many instances by the local law journals. Its real and appropriate work lies somewhere between these limits.

A decision of the English High Court of Justice in the famous "Emma Mine" case, is authority for the doctrine that the claim of a company against a promoter (who, by the way, was the notorious Mr. Albert Grant), for money received by him under undisclosed contracts, is a liability incurred by means of fraud and breach of trust within the meaning of the English Bankrupt Act, and that his discharge would not have the effect to release him from it, and that he must pay it.