ACTION BETWEEN PARTNERS - ATTACHMENT WHEN NOT MAINTAINABLE JURISDICTION.-1. The case of Treadway v. Ryan, 3 Kas. 347, criticised, but followed. 2. Where one partner, before adjustment of partnership accounts, brings an action against his co-partner, he can not maintain an attachment against the property of the defendant on the ground of the non-residence of the latter, unless the cause of action arose wholly within the limits of the State: Held, further, that upon the particular facts of this case, the cause of action did not arise wholly within the limits of Kansas. 3. In an action by one partner against a co-partner to recover one-half of the profits of the business of the firm prior to the accounting, or the ascertainment of a balance, where an attachment is sued out by the plaintiff against the property of the defendant on the ground of the non-residence of the latter: Held, on a motion to discharge the attachment, that the district court has the legal right to inquire and determine whether the alleged cause of action arose wholly within this State. Affirmed. Opinion by HORTON, C. J. All the justices concur ring.-Stone v. Boone.

STOCK-INJURY BY RAILROAD-WHEN OWNER CAN NOT RECOVER.-Plaintiff was the owner of a quarter section of land, through which ran the defendant's railroad. The quarter section as a whole was enclosed with a legal fence, but there was no fence along the defendant's road. separating the right of way from the rest of the quarter section. The plaintiff turned his animal loose in this quarter section, and during the night time it was injured by the defendant's cars. The night herd law was in force in the township in which the land was situate. Held, that while plaintiff may be said to have confined his animal within the meaning of the statute as to all parties except the defendant, an owner of part of the premises within the enclosure, he can not be held to have so confined it as to the defendant; and hence, there being no negligence on the part of the defendant except in not having a fence along its right of way, he can not recover for the injury. The obligation of the plaintiff to confine his animal. and that of the railroad to fence its right of way are of equal force, and he who disregards the one can not recover of the other for injuries resulting alone from their concurrent disregard of statute obligations. Reversed. Opinion by BREWER, J. All the justices concurring.-Kansas, etc. R. Co. v. Landis.

SUPREME COURT OF INDIANA.

November, 1880.

RIGHT OF RECEIVER TO BRING SUITS IN HIS OWN NAME COMPLAINT. - There is no statute in this State authorizing a receiver to bring actions in his own name for the recovery of debts due the person or corporation for whom he is receiver. Under section 16 of the corporation act, 1 Rev. Stat. 369, providing for the appointment of a receiver for corporations against which judgments have remained unpaid for one year, this court has held that in such cases the receiver may sue in his own name. 38 Ind. 211. But in this case the receiver was appointed in a proceeding supplementary to execution, and the case is not within the above statute. Under section 205, 2 Rev. Stat. 116, the court appointing a receiver has power to authorize him to bring actions in his own name to collect debts, etc.; but the complaint will be bad if it does not aver that the court which appointed

the plaintiff as receiver, authorized him to bring actions in his own name in matters concerning the receivership. Reversed. Opinion by WORDEN, J.Garver v. Kent.

CRIMINAL LAW-WHEN JUROR INCOMPETENT FOR OPINION FORMED. The appellant and one Wade were jointly indicted for murder, and having elected to be tried separately. Wade was tried first. One of the jurors who tried the appellant said on his voir dire, that he had read the accounts of the murder as published in the papers, and also the testimony given at the trial of Wade, as so published, and had formed and expressed an opinion therefrom of the guilt of appellant; that the evidence in the case would have to be materially different from what he read, or he would still retain his first opinion; and that his first impression would hang to him pretty rigidly. In answer to a question by the court, he said that if the evidence in the case should be materially different from that in the Wade case, he would be governed by it entirely; but that if it should be nearly the same, the evidence in the Wade case might have some influThe answers of the other juror were similar. He said he thought he could lay aside his opinion already formed, but that it might pull him over a little." Held, that these jurors were incompetent to sit in the case, within the meaning of the statute, and it was error for the court to overrule the defendant's challenges to them for cause. Reversed. Opinion by HOWK, J.-Brown v. State.

ence.

CRIMINAL LAW-EVIDENCE-REASONABLE DOUBT -INSTRUCTIONS.-On a trial for murder, it is not competent for the defendant to prove that a month or two before the crime was committed, the defendant told different persons that he was going to Michigan to live, the declarations being uncoupled with simultaneous acts. 2. The following instruction given to the jury, to wit: "Facts and circumstances to be considered against the accused must be proved to be true beyond all reasonable doubt, and those tending in his favor need only be proved by evidence sufficient to cause a reasonable belief in their truth, was not erroneous. Its meaning was that facts which tend against the accused must be proved beyond all reasonable doubt before the jury can consider them. while facts tending in his favor may be considered if proved by evidence sufficient to cause a reasonable belief in their truth. If anything, the instruction was too favorable to the accused. Evidence, whether for or against the accused, must be weighed by the same rule; but the sum of the evidence must exclude a reasonable doubt of his guilt 3. There is no error in refusing to give instructions asked by the defendant, when the instructions given by the court cover the entire case. 4. A new trial was sought on the ground that after the defendant's trial, the person jointly indicted with him for the murder had admitted that she killed the deceased. Held, that the evidence was not such as entitled the defendant to a new trial. Proof of the guilt of his co-defendant in the indictment would not tend to show the innocence of the defendant, nor raise a doubt in his favor. Affirmed. Opinion by BIDDLE, C. J.-Wade v. State.

QUESTION PRESENTED FOR FIRST TIME ON REHEARING.—A question which is presented for the first time by petition for rehearing will not be considered. The Supreme Court will not, upon the filing of such a petition, re-open a cause for the purpose of inquiring whether there is a defect in the record of which the petitioner could have availed himself when he filed his original brief. The appellee is as much bound to present in the first instance, all the questions relied upon by him as the appellant is, and his failure to do

so operates in the same way. Petition for rehearing overruled. Opinion by NIBLACK, J.-Underwood v. Sample.

SUSPENDEDATTORNEYS-RESISTING RE-ADMISSION OF. 1. Section 780 of the Code, granting the power to any person to move for the removal or suspension of an attorney, carries with it the implied power to resist the readmission of an attorney after he has been suspended from practicing law. The office of an attorney is quasi public, and his conduct semi-official. 2. No pleadings in an application for readmission by a suspended attorney are necessary, and hence, there could be no available error in the rulings of the court upon the papers in the case. 3. Such proceeding not being a civil action, the appellant was not entitled to a trial by jury; in a proceeding to suspend an attorney the accused is entitled to a jury trial. See 9 Ind. 558; 23 Ind. 204; 32 Ind. 214: 46 Ind. 187; 51 Ind. 487; 57 Ind. 388; 59 Ind. 25. 4. By the Constitution, every person of good moral character, being a voter, shall be entitled to practice law in all courts of justice. The fact that the appellant was honest and upright in his business relations outside of his profession, is not equivalent to being a person of good moral character. Such business relations might admit the grossest misconduct in the practice of his profession. The court found that appellant had been honest and upright in his business relations outside of his profession, but added that his general reputation for morals was not good. The facts stated do not show that appellant was a person of good moral character at the time he sought for readmission. Afirmed. Opinion by BIDDLE, C. J.-Ex parte Walls.

SUPREME COURT OF ILLINOIS.

November, 1880.

EQUITY-NO JURISDICTION TO ENFORCE LIEN FOR TAXES.-1. A court of chancery has no jurisdiction to enforce the lien upon real estate given by statute for taxes assessed thereon. Such lien is purely legal in its character, the creature of the statute, not arising upon contract, and can be enforced in the mode provided by the law of its creation, and in no other mode. 2. If the revenue law be defective in respect of the remedy provided for enforcing such a lien, that is a matter of legislative concern, not calling upon the courts to provide a remedy by extending the equitable jurisdiction beyond its recognized limits. 3. Nor does the fact that it is the State which is seeking to enforce the lien, operate in any way to change the rule upon the question of jurisdiction. The officers of the State, in the collection of revenue, are as much bound to observe the law and to proceed in the mode pointed out by the statute, as an individual is required to observe the law in the enforcement of any right. Affirmed. Opinion by CRAIG, J.People v. Biggins.

CONTRACT-OF DOUBTFUL PROPRIETY NOT ENFORCEABLE IN EQUITY-INJUNCTION TO RESTRAIN USE OF NAME. 1. An agreement to admit a person into a medical institute and assist in the graduation and granting to him a diploma, in consideration of such person abandoning a fictitious name nearly the same as that of the other party, a member of the faculty, is of such doubtful propriety that equity will not lend its aid to enforce it. The granting of diplomas to students in colleges ought not to be made the subject of private contracts with individual members of the faculty for personal advantage to themselves.

2. A bill by Henry Olin, who was a physician treating diseases of the eye and ear in the City of Chicago, charged that the defendant, Bates, had assumed the fictitious name of Andrew G, or A. G. Olin, and was engaged in practising his profession in the same city, whose business was treating venereal diseases; that in such name he advertised extensively bo h in the newspapers and by publications and pamphlets largely circulated, by which means the complainant's reputation was injured, many taking him for the defendant. It appeared that defendant had been practising in the city under the same name before the complainant came there; the bill sought to enjoin the defendant from the use of name Olin. On the hearing the bill was dismissed: Held, that the bill was properly dismissed for want of equity. Affirmed. Opinion by SCOTT, J,—Olin v. Bates.

POWER OF ATTORNEY TO CONFESS JUDGMENTMAY BE EXERCISED IN VACATION-1. When a power of attorney authorizes any attorney-at-law of the State to appear before any court of record in the State, and confess judgment for the amount due upon a note to which it is attached, and an attorney's fee, the power may be exercised by the confession of judgment, either in term time, or in vacation, before the clerk of the court. 2. The doctrine is well settled,

and has often been recognized by this court, that the power to confess a judgment must be clearly given and strictly pursued, or the judgment will not be sustained. But this rule, like all others, has its reasonable limitations, and must not be applied so rigidly as to defeat the manifest intention of the parties to the instrument granting the power. 3. For the purpose of suing out writs, entering judgments upon powers of attorney, and, perhaps, in other matters, the circuit courts are open at all times, except on Sundays and legal holidays. But where the business requires a judicial inquiry, it can only be done during term time. 4. Where a judgment is entered in the circuit court in vacation, in pursuance of a proper warrant of attorney, as soon as the entry is made, it becomes by the force and sentence of law a judgment in a court of record, and as such has the same force and effect as any other judgment. 5. When a power of attorney authorizes a thing to be done generally without any limitation as to the manner of doing it, and it may be lawfully done in two or more ways, the donee of such power may execute it in either of the ways, and it will be well executed. Affirmed. Opinion by MULKEY, J.-Keith v. Kellogg.

-

PARTNERSHIP --ACCEPTANCE OF DRAFT BY DIRECTION OF AGENT OF PARTNERS POWERS OF PARTNER AFTER DISSOLUTION. PRACTICE. -1. Where one firm was indebted to another firm, and after dissolution of the first it employed a member of the latter firm to close and wind up its business and pay its debts, and such agent, acting in behalf of his own firm, drew drafts in the name of his firm, payable to themselves, and procured a person who had before been the manager of the first firm, to accept the same in his own name as drawee, supposing he had such authority, but not giving or attempting to give such manager any authority to accept for his principals, it was held, that the first-named firm was not liable on the acceptances, it appearing that such manager at the time had no authority to accept the drafts on behalf of his principals. 2. If a partnership is formed for a single purpose or transaction, it ceases as soon as the business is completed, or whenever there is an end put to the business; and although a partnership is entered into for one year, it may be terminated by mutual consent at any time the partners may choose. 3. Where partners, by resolution, determine to leave the business and wind up the

same, and appoint one of their number or a third party to take charge of the property and accounts, and to dispose of the property and collect their accounts, this will amount to a dissolution of the partnership and a revocation of the powers of any other agent before that time acting for the firm. 4. In the absence of stipulation to the contrary, in case of dissolution, every partner is left in the possession of the full power to pay and collect debts due the firm, to apply the partnership funds and effects to the discharge of their own debts; to adjust and settle the unliquidated debts of the partnership; to receive any property belonging to the partnership, and to make due acquittances, discharges, receipts and acknowledgments of their acts in the premises. 5. While the dissolution does not revoke the authority to liquidate, settle and pay debts already created, it operates as a revocation of all authority for making new contracts; and since the giving of a promissory note, or the acceptance of a bill or draft, is the making of a new contract, although it may be for a firm debt, a partner after dissolution, can not thus bind the firm, or authorize another to do so. 6. Although a partnership may exist in the name of one as lessee, who is merely the agent of the firm, to transact a particular business, as the manufacture of brick, and not a member of the firm, it will not be bound by such agent making, or acceptance of commercial paper, without direct and specific authority from the firm, or some member thereof before dissolution, or unless the firm or some member during the existence of the partnership ratified the act of such agent. 7. To hold the members of a partnership liable for commercial paper, executed or accepted by direction of one member, after the dissolution, on the ground that the person taking and discounting such paper in the late firm name and style was ignorant of the dissolution, it must be shown that the members constituting the partnership were known to the person so discounting such paper previous to the time of taking and discounting the same, especially where the acceptance fails to show who composed the firm. 8. There is no necessity to state principles or make qualifications in instructions, having no basis in the evidence, upon which to rest. 9. Although, on an appeal from the Appellate Court, this court can not go into questions of fact to ascertain where the preponderance is, it is essential to examine the evidence to see, if its tendency is such as to present a fair question of fact, to which mooted questions of law embodied in or omitted from instructions are applicable. Affirmed. Opinion by SCHOLFIELD, J.-Bank of Montreal v. Page.

SUPREME COURT OF OHIO.

January Term, 1880.

[Filed Nov. 16, 1880.]

DEBT-TRUST-CAUSE OF ACTION.-1. A plaintiff sued an administrator for money placed in the hands of his intestate, which it was averred was so received upon the express trust," to be repaid to the plaintiff on the death of the intestate. Held, that the transaction did not constitute an equitable trust, but merely created the relation of debtor and creditor between the intestate and the plaintiff. 2. In such case, the cause of action did not accrue until the death of the intestate. 3. Where a case has been treated by the parties and the courts below, as an equitable action, and as appealable, and the case has been tried by the district court without objection, on Its merits

this court will not, sua sponte, consider the question of error in entertaining the appeal. Judgment affirmed on terms. Opinion by WHITE, J.-Kershaw v. Snowden.

PUBLIC OFFICER HOLDING MONEYS OF DIFFERENT BONDS- MINGLING OF MONEYS DEFAULTRIGHTS OF EACH. W was treasurer of C county from Septemher, 1870, until September, 1872. He was ex-officio treasurer of the city of S and of its board of education. As received, he mingled and kept the moneys of these various corporations together. During his term of office there was a deficit. The county commissioners having, at W's settlement in September, 1872, found money in the treasury precisely sufficient to satisfy the amount due from W as such treasurer to the county, directed the same to be placed to the credit of the county, and appropriated to county purposes. Held, that the moneys so mingled together belonged to the several corporations pro rata and the county commissioners could not appropriate the whole to the exclusive use of the county; and the county, consequently, is liable in equity to accouut to the other corporations for their proportionate share of the fund so appropriated. Judgment affirmed. Opinion by ОKEY, J.-Commrs. of Clark Co. v. City of Springfield.

SUPREME COURT OF MISSOURI.

November, 1880.

SHERIFF'S SALES-DUTY OF SHERIFF LIABILITY FOR MISCONDUCT.-Action by plaintiff in execution against sheriff for $135, on the ground of misconduct resulting in the loss of the debt. The execution was levied on a printing press in the town of Glenwood, about two miles and a half from Lancaster, the county seat. An attorney at Lancaster represented the plaintiff in the execution. On the day previous to the sale as advertised by the sheriff, his deputy called on the attorney and told him the sale would take place at Lancaster, and asked about moving the press there. The attorney suggested that the sheriff had informed him that the sale would take place at Glenwood, to which the deputy replied that he wrote the advertisement and knew it would be at Lancaster. The deputy went over to Glenwood that evening, and ascertained that the sale was advertised to take place at Glenwood, but did not notify the attorney of his mistake, though ample communication by telegraph, mail, and persons passing, was open to him. The sale took place at Glenwood, the attorney remaining in Lancaster, and the press, admitted to be worth $300, was sold for $6. The trial court instructed the jury to find for defendant. Held, erroneous. The sheriff, though intrusted with large discretion, was bound to execute his duty honorably as well as soundly. While it may not have been his duty, or that of his deputy, to inform plaintiff's attorney of the time and place of sale-the advertisement did this-it was improper for him to misinform him; and having done so, and a correction of the mistake being within his power, he should have made the correction; and as that mistake led to the sacrifice of the property, he should be held liable. Kean v. Newell, 1 Mo. 754; Lusk v. Briscoe, 65 Mo. 555 Shaw v. Potter, 50 Mo. 281; Conway v. Nolte, 11 Mo. 74. Reversed and remanded. Opinion by NAPTON, J.-State, ex rel. v. Moore.

PLEADINGS-PRACTICE-ALLEGATA AND PROBATA -MISCONDUCT OF JUDGE.-1. The material portion of the petition in this case was as follows: That on or about the 9th day of February, 1873, in the City of Kansas, Jackson County, Missouri, the defendant not regarding its duty, and by reason of its negligence and carelessness, plaintiff was run against by one of defendant's cars, thereby throwing plaintiff upon the rail of the defendant, the said car of defendant then and there ran upon and over plaintiff. That plaintiff was then and there, by reason of the carelessness and negligence of defendant in running its said car upon and over plaintiff as aforesaid, broken and mutilated as to his right leg, to such an extent as to require its immediate amputation in order to save the life of plaintiff, thereby permanently disabling him, in all which he has sustained great loss and damage, as well in the permanent mutilation of his body as aforesaid, rendering him unable to work, and also in the great expense to which he has been subjected, and the great pain which he has suffered and still suffers, by reason of said negligence and carelessness of defendant.'' Held, that the legal and natural signification of the above allegations is, that defendant was guilty of negligence in running the cars which collided with plaintiff; but the court submitted to the jury the question of defendant's negligence in having a defective sandbox on the engine, and keeping a defective frog in the track. If the latter was the real cause of complaint, it should have been distinctly stated in the petition. Plaintiff was not entitled to recover on a cause of action not stated in the petition, and the court erred in submitting such issues to the jury. Waldheir v. Hannibal & St. Joe. R. Co., Cent. L. J., Mo. Add. No. 6, p. 15: Buffington v. Railroad, 64 Mo. 246. 2. The judge who tried the case, when the jury reported, after several hours' deliberation, that they could not agree, said to them that considerable time had been consumed in the trial of the case, and it was important that they find a verdict; that they would be discharged until the next morning at half past nine o'clock; and, after the charge that they permit no person to talk about the case in their hearing, he said: "Gentlemen, come back to-morrow morning with a determination to compromise;" and court immediately adjourned for the day. On the following morning the jury took their seats in the jury box, and the judge then said to them that it was of great importance to the parties and to the county that they agree upon a verdict; that this thing of taking five days to try a case, and then having to try it all over again, was pretty expensive; that many things juries were authorized to compromise, such as amounts; that very seldom twelve men went into their jury room with the same notion as to amounts, and compromises were necessary; and then directed them to retire to their room and make a verdict. Held, that, while this court did not question the motives which actuated the trial judge in the premises, it could not indorse his language, which was well calculated to prejudice the defendant's case with the jury. Reversed and remanded. Opinion by HOUGH, J.-Edens v. Hannibal & St. Joe. R. Co.

QUERIES AND ANSWERS.

ANSWERS.

46. [11 Cent. L. J. 398.] Replevin will lie for choses in action, as notes, checks, bonds, bank bills, etc. The authorities are numerous and harmonious. Graves v. Dudley, 20 N. Y. 76; Birdsall v. Russell, 29 N. Y. 220. Ordinarily replevin will lie where trover will, and always, so far as the kind of property wrongfully detained is

concerned. 4 Mich. 295; Sawtelle v. Rollins, 10 Shep. 196; Sudbury v. Stearns, 21 Pick. 148. Trover for choses in action has been sustained in many cases Comparet v. Burr, 5 Blackf. 419; Moody v. Keener, 7 Porter, 218; Kingman v. Pierce, 17 Mass. 247; Booth v. Sowers, 56 N. Y. 22; Decker v. Matthews, 12 N. Y. 313; Wookey v. Pole, 4 B. & Ald. 1. Of course, if the action is for money or negotiable paper in hands of a bona fide holder for value, the action will fail upon that ground. Wookey v. Pole, 4 B. & Ald. 1; Miller v. Race, 1 Burr. 452; Hartop v. Hoare, 3 Atkyns, 50: Spooner v. Holmes, 102 Mass. 503; s. c. 3 Am. Rep. 491. In 4 Bac. Abr. 385, folio edition of 1778, it is said, "So replevin does not lie of deeds or charters concerning lands; for they are of no value, but as they relate thereto." But in a note it is said, 'detinue will lie for deeds. In Hammond's Nisi Prius, 372, it is said, "Replevin can not be maintained for writings which concern the realty," Citing 1 Brownl. 168. With us this action has a much wider scope than by the early English law. Mennie v. Blake, 6 El. & B. 842; 1Chit. Pl. 181, 16 Am. ed. And includes in its principles the action of detinue. Indeed,jour replevin action is much nearer the English action of "detinue," than their replevin, which originally only extended to reclaiming wrongful distresses. Detinue will lie for deeds which are the muniments of title to real estate. 1 Chit. Gen. Pr. 95; 1 Chit. Pl. 137 (16th Am. ed.); Atkinson v. Baker, 4 T. R. 229; 3 B. & Ad. 174; 4 Bing. 106. Replevin or trover will lie for such deeds. Towle v. Lovet, 6 Mass. 394; Weiser v. Zeisinger, 2 Yeates (Pa.), 537; Kingman v. Paine, 17 Mass. 247; Sawyer v. Baldwin, 11 Pick.492; Sudbury v. Stearns, 21 Pick. 148; Wilson v. Rybolt, 17 Ind. 391; see 34 Ill. 523; 13 Ill. 192. Title deeds are personal property, although they pass to the heir with the land. D. L. A. Sherburne, N. Y.

47. [11 Cent. L. J. 398.] A judgment is not abated by death of the party by whom recovered. Bliss Code Pl. 344; 2 Tidd Pr. 938, 1118. When docketed, it becomes a debt by contract of record. 1 Story Cont. sec. 2; 1 Chit. Cont. 3 (11th Am. ed.) An administrator can sue thereon as on any other contract with the deceased. 2 Redf. Wills, chap. 6, § 1, p. 102. If he wishes to proceed on the judgment by execution, he must have a scire facias or revivor. 2 Tidd Pr. 1118; 49:N. Y. 125. D. L. A. Sherburne, N. Y.

49. [11 Cent. L. J. 398.] By the common law of England the attorney's lien has priority, and by the law of Georgia the lien of A's attorney has priority of all liens except liens for taxes. See Code of Georgia, sec. 1989; 14 Ga. 79; 45 Ga. 167, and in 50 Ga. 299, the attorney's lien has priority over "a judgment existing against his client at the time the agreement" (for fees) "was made." Many other decisions of the Supreme Court of Georgia are to the same effect. R. B. TRIPpe. Atlanta, Ga.

49. [11 Cent. L. J. 398.] X has the prior lien; he had a lien upon the judgment he recovered in favor of A, the moment it was rendered. Attorneys at law and solicitors in equity have, undoubtedly, a general lien upon all papers and documents in their possession, not only for services rendered in the particular cause in which the papers and documents come to their possession, but also for the costs and charges due to them for other professional services and employment in other causes. This lien extends to all monies received and judgments recovered. See Ex parte Plitt, 2 Wall. 453; Pinder v. Morris, 2 Caines, 165; Rooney v. R. Co., 18 N. Y. 368; Mar. tin v. Hawks, 15 Johns. 405; MacDonald v. Napier, 14 Ga. 99; Patten v. Wilson, 34 Pa. St. 299; Frost v. Belmont, 6 Allen, 152; Gammon v. Chandler, 30 Maine, 152. Even if the fee were a contingent one,it would make no difference. Hill v. Cunningham, 25 Tex. 31; Wylie v. Cox, 15 How. 415. As the creditor of A comes into a court of equity seeking to apply the judgment obtained by X in favor of A, to the payment of his claim, the court would, upon the general principle that he "who seeks equity must do equity," compel him to allow X, by whose labor the fund was created, a reasonable compensation therefor. B. B. BOONE.

Mobile, Ala.

CURRENT TOPICS.

Two questions of appellate practice were determined in the Supreme Court of the United States last week in the case of Hunnicut v. Peyton, the opinion of Mr. Justice Strong, who spoke for the whole court, abounding in learning and authority on both points. The verdict in the case was rendered Feb. 17, and on the 24th of the same month a writ of error was sued out. The defendant's bills of exceptions, upon which their assignments of errors were founded, were signed by the trial judge on Feb. 28 and filed on March 1. This was during the term at which the cause was tried, but eleven days after the verdict was rendered. The plaintiffs' counsel was present when the bills were signed, and objected on the ground that they were not presented for signature Iwithin the time limited by the rule of the court. That rule was as follows: "No bill of exceptions will be signed unless presented to the judge within five days after the close of the trial, unless further time be allowed by the court." No objection was made to the correctness of the bills, or to their signature because a writ of error had been sued out. On the 1st of March an order was made by the court extending the time for presenting and filing the bills until that day (the plaintiffs objecting to the order), and accordingly the bills were then filed. In the Supreme Court of the United States it was insisted that the bills of exception could not be considered because they were not properly up for review, and this for several reasons, the first being that they were not presented to the trial judge within the time prescribed by the rule of court just cited. But the court held that this was not fatal. "The rule requiring the presentation of bills for the signature of the judge within five days,'' said Mr. Justice Strong, "is not a rule which controls his action. He may depart from it in order to effectuate justice. Stanton v. Embry, 93 U. S. 552. It is a direction to the parties, and it expressly reserves the power to enlarge the time. It is no doubt necessary that exceptions should be taken and, at least, noted before the rendition of the verdict, but the reduction of the bills to form, and the signature of the judge to the bills, required for their attestation, or, as said in the statute of Westminster, 'for a testimony,' may be afterwards, during the term. In practice it is not usual to reduce bills of exception to form and to obtain the signature of the judge during the progress of the trial. Nor is it necessary. The statute of Westminster did not require it. It would greatly and uselessly retard the business of courts were it required that every time an exception is taken the progress of the trial should be stayed until the bill could be reduced to form and signed by the judge. For this reason it has always been held that the exception need only be noted at the time it is made, and may be reduced to form within a reasonable time after the trial is over. U. S. v. Bretling, 20 How. 254; Stanton v. Embry, 93 U. S, 555; Dredge v. Forsythe, 2 Black. 568. The time within which the signature of the judge must be applied for, if within the term, is left to the discretion of the judge who noted the exception when it was made. It may depend much upon the nature of the bill. Some require much more time for preparation than others. It is true a judge can not be permitted to make up a statement of facts, after the writ of error is issued, upon which the case shall be heard. Generes v. Bonnamer, 7 Wall. 566. That is quite a different matter. But when an exception has been taken at the trial and noted, reducing the exception to form afterwards and attesting it, is not making a new

case. It is merely verifying the case as it appeared on the trial."

Another objection to the bills of exception in Hunnicut v. Peyton, supra, was that they were not signed nor filed nunc pro tune, but that they appeared on their face to have been signed and filed ten days after the trial. The Supreme Court held, however, that the absence of any order that the bills should have the same effect as if they had been signed and filed during the trial, was not a fatal objection. Said Mr. Justice Strong. "The order of March 1st, extending the time for signing and filing, is equivalent to such an order. And the fact that the date of the signature was the 28th of February, is of no practical importance. At most it is only an irregularity. It is not a void act. Perhaps the bills would have appeared more regular had they been dated February 17th, but they are recitals of what occurred at the trial, and they show that the exceptions were then taken-taken in time. If it be kept in mind that the judge's signature is required only for 'testimony' that the exception was taken at the trial, and before verdict, it can not be material that the testimony was given after the close of the trial, if given during the term. We do not overlook what was said by Duval, J., in Walton v. U. S., 9 Wheat. 657. We gather the facts of that case only from the opinion of the court. From that it appears that the bill of exceptions did not show that any exception was taken at the trial. That, of course, was a fatal defect. But Duval, J., after having noticed that fact, went on to make some general observations. After stating that it will be sufficient if the exception be taken at the trial, and noted by the court with the requisite certainty, and that it may afterwards, during the term, according to the rules of court, be reduced to form and signed by the judge, he added: "But in all those cases the bill of exceptions is signed nunc pro tunc, and it purports on its face to be the same as if actually reduced to form and signed pending the trial. And," he said, it would be a fatal defect if it were to appear otherwise; for the original authority under which bills of exceptions are allowed, has always been considered to be restricted to matters of exception taken pend ing the trial and ascertained before the verdict."' These remarks were not necessary to the decision of the case, and they are unsustained by any authority, so far as we know, that existed when they were made. In Ex parte Bradstreet, 4 Pet. 107, C. J. Marshall said, a practice to sign a bill of exceptions after the term must be understood to be a matter of consent between the parties, unless the judge has made an express order in the term allowing such a period to prepare it. No intimation was given that the signature must be nunc pro tunc. Walton v. U. S., was referred to in Law v. Merrill, 6 Wend. 278, by one of the judges, and the language of Judge Duval was quoted, but it was unnecessary to a decision of that case. The bill there had been signed a year after the trial, by a judge who had not tried the cause. We find no case which can be regarded as as authoritative decision that a bill of exceptions, signed during the term at which the trial took place, though after the close of the trial, must be antedated to make it effective, or ordered to be filed nunc pro tunc, as of a time during the trial. Nor can we discover any reason for such a requirement. During the term the records of the term are before it for amendment in matters of form, and whether a bill was signed as of a date after judgment if during the term, or antedated to a time during the trial, is a question of form only if it appears that the exceptions were in fact taken before verdict and during the pro