No

writing during the term, no subsequent reduction of the exceptions to writing is of any validity. Kline v. Wynne, 10 Ohio St. 223; Morgan v. Boyd, 13 Ohio St. 271. Whatever might be true if the case stood upon a bill of exceptions (and unless we departed from the Ohio decisions we should be compelled to hold such a bill of exceptions of no validity), we think our statutes warrant a case made with exceptions reduced to writing after the close of a term. There is no inherent vice in so reducing exceptions to writing; the legislature can authorize such action and the question is only one of policy. Until the provisions for a case made, the statute was clear and compelled action during the term. The court was not authorized to further extend the time. But the court is authorized generally to extend the time for making a case. limitation is placed in the statute. Full discretion seems to have been granted. And the case made is not the mere collection of the pleadings and previously prepared bills of exceptions. It is itself the statement of the proceedings and evidence or other matters or so much thereof as is deemed necessary to present the errors complained of. Gen. Stat. p. 737, sec. 547. It is an original document and not a compilation. Extending the time to make it extends the time to make it completely and wholly. It may all be done on the very last day of the extended time. The testimony and exceptions may on that day for the first time be reduced to writing. This would seem logically to follow from the provisions of the general statutes. But as if to avoid any doubt the legislature in 1870 and again in 1871 amended by providing that "the exceptions stated in a case made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the time they were taken." Laws 1870, p. 169, sec. 2; Laws 1871, p. 274, sec. 1. This plainly implies that the exceptions are first reduced to writing when the case made is prepared and declares that they are to have the same effect as if reduced to writing at the time they were taken. And the time in which they may be so reduced to writing is as extensive as the time for making the case.

So far as the motion for a new trial is concerned it has already been decided that it may be continued, and that the lapse of a term does not vitiate the motion or forfeit the rights of the moving party. Brenner v. Bigelow, 8

Kas. 498.

This instrument, though in form an absolute bill of sale, was found by the jury to have been intended as only a security. It appears that Faulkner received some money thereon from Denny & Redman, and shipped some cattle to them. The balance remained in his possession at his farm in Nebraska until his death, in May, 1872, and are the cattle in controversy. No filing or record was made of this bill of sale in Illinois, Nebraska or Kansas. May 31, 1872, O. P. Faulkner died, and on June 10th, Hedwig Faulkner, his widow, was appointed administratrix by the Probate Court of Richardson County, Nebraska. During the life time of O. P. Faulkner, two suits were commenced against him, and a portion of these cattle was taken under attachments therein by the sheriff of Richardson County. June 17th, 1872, this action was commenced in Brown County, Kansas. The cattle were then in Kansas, being in charge of herders employed by Faulkner in his life time and continuing in the employ of his administratrix after his death. They were feeding on the range in day time and herded at night at the farm of one Floyd Crandall, in Brown county. The possession of the herders was the possession of the administratrix, except so far as divested by the levy under the attachment. It would seem probable, though the facts are not explicitly found, that at the time of the seizure under the attachments, the death of O. P. Faulkner, and the appointment of his administratrix, the cattle were on the Kansas side of the State line. In other words the court proceedings were in Nebraska and the property probably in Kansas. We say probably, for as the cattle were kept very near to the State line, they may in feeding have ranged on both sides of the line and actually been in Nebraska at the time of the leyy and the appointment of the administratrix. We may not, however, in the absence of any finding and in the uncertainty of the testimony assume positively the fact either way. We must treat it as an unsettled question.

Upon this we remark that the bill of sale, whether its operation and force are to be determined by the laws of Illinois, where it was executed, or those of Nebraska, where the cattle were at the time of its execution, or those of Kansas, where they were subsequently found and where the litigation was had, was valid inter partes. As between Faulkner, the vendor, and Denny & Redman, the vendees, it conveyed the title to the property as security for the advances. Had the litigation arisen during the life time of Faulkner and been solely between him and Denny & Redman, the right of possession would have been adjudged in the latter. The difference, judging from the portions of the statutes admitted in evidence, between the laws of Illinois on the one hand and those of Kansas and Nebraska on the other in this matter is that by the former such a conveyance unaccompanied by a delivery of possession, or what is deemed an equivalent, registration, would be absolutely void as against creditors and subsequent purchasers, while, by the

latter, it would be simply prima facie void. Gross statutes of Illinois, 3d. ed. 1869, chap. 20, Chattel Mortgages; Mumford v. Canty, 50 Ill. 370; Revised Statutes, Nebraska, chap. 46, though see the case of Pyle v. Warren, 2 Neb. 241; Gen. Stat. Kansas, Chap. 43.

We remark, secondly, that the administratrix has no better rights thau her intestate. She can claim no more against the bill of sale than could he. It is true, and counsel call our attention to the fact, that the Illinois statute provides that such a conveyance shall be void "as against the rights and interests of any third person or persons." They say that "certainly the administratrix is a third person, she is a trustee holding this property for the benefit of the creditors." We do not so understand that statute. The third person must be one having rights and interests other than those of the vendor, and not one who simply holds the same rights and interests. A purchaser is interested to the extent of the money he has paid, a creditor to the amount of his debt. But a mere donee, heir or legatee, or assignee, executor or administrator, has neither title nor interest other or different from those of the original vendor. As the vendor can not repudiate the sale, neither can any who simply stand in his place. An administrator does not, in this respect, represent the creditors. He can not sue, in the absence of express statutory authority, to recover property fraudulently conveyed away by his intestate. Crawford's Admr. v. Lehr, 20 Kas. 509. Neither can he defend against a conveyance made by his intestate, on the ground that it was void as against creditors. The creditors must protect their own interests. Again, as the law of a State, and the powers and processes of its courts, have no extra-territoral force, it follows that the appointment of an administratrix by the probate court in Nebraska did not vest in her the property of the decedent situate in the State of Kansas.

It may not follow that her possession was tortious, but whatever rights she possesses would spring from comity and the laws of this State, and not from the powers given her by the courts of Nebraska. Whenever a decedent leaves property in two States, it is common to have administration in each State, the principal in the State of his domicil and an ancillary in the other. And a State always has the right to protect home creditors by administration of the decedent's property within its borders. So that if administration had been taken out in Brown county, Kansas, the administrator so appointed would have had the right to the possession of the cattle in that county as against the administrators appointed in Nebraska. Story on Conflict of Laws, § 512, it is said: "In regard to the title of executors and administrators derived from a grant of administration in the country of the domicil of the deceased, it is to be considered that that title can not de jure extend as a matter of right beyond the territory of the government which grants it, and the movable property therein, as to movable property situated in foreign countries, the title, if acknowledged at all, is acknowledged ex comitate; and, of course, it is sub

In

ject to be controlled or modified as every nation may think proper, with reference to its own institutions and its own policy, and the rights of its own subjects. And here the rule to which reference has been so often made, applies with great strength that no nation is under any obligation to enforce foreign laws prejudicial to its own rights, or to those of its own subjects. Persons domiciled and dying in one country, are often deeply indebted to foreign creditors, living in other countries, where there are personal assets of the deceased. In such cases it would be a great hardship upon such creditors to allow the original executor or administrator to withdraw those funds from the foreign country without the payment of such debts and thus to leave the creditors to seek their remedy in the domicil of the original executor or administrator, and perhaps there to meet with obstructions and inequalities in the enforcement of their own rights from the peculiarities of the local law."

....

But no question arises here between two administrations or between a foreign administrator and a home creditor. The administratrix appointed in the domicil of the decedent had acquired possession of the property, and it is immaterial whether she had first taken possession in Nebraska and afterwards moved the property into Kansas or had in the first instance taken possession in Kansas. In the absence of any opposing administration the courts of this State ex comitate will recognize the title and possession of personal property in this State in the administrator appointed in the domicil of decedent. Payment to such an administrator of a debt due to the decedent will be good. Brown v. Brown, 1 Barb. Ch. 189; Vroom v. Van Horne, 10 Paige, 549; Parsons v. Lyman, 20 N. Y. 103. He may sue or be sued in like manner and under like restrictions as any other non-resident. Gen. Stat. p. 472, sec. 203; Cady v. Bard, 21 Kas. The rule is not the same however as to the possession of the sheriff. His service of process and seizure of property within this State would be absolutely void. The laws of Nebraska could give him no power to act in Kansas, and comity does not require any recognition of his power beyond their territorial limits. Comity is satisfied when it recognizes the validity of his acts done within those limits. No State can ask that its officers be permitted to serve process within the limits of a sister State, and no State can recognize as of any validity the seizure of property within its borders by the officers of another sovereignty, acting under process from the courts of that sovereignty. Pointing to her territorial boundaries: thus far shall thou go and no farther," is the voice of each State to the officers of every other State. A sheriff in seizing property is compelling an unwilling transfer, and the courts of this State can alone compel such a transfer of property within her borders. The adjustments of rights, the settlement of controversies, the forcible transfers of property, must be by the officers of the State and in obedience to the laws of the State and the decrees of its courts. No foreign tribunal can exercise jurisdiction over persons or property within her borders. This is essential to sovereignty so that if the cattle in con

troversy were in Kansas at the time of the seizure by the sheriff such seizure was void and no title or right of possession passed to him thereby.

On the other hand, if the cattle were in Nebraska at the time of the seizure then his title thereby became good and will not be divested by the fact that they afterwards ranged over the line into Kansas. In other words, whatever title was acquired to the property while in Nebraska under the laws of Nebraska will be recognized in this State. The title acquired by a levy will be recognized equally with that acquired by a bill of sale. Generally one State recognizes titles and rights acquired and vested in another State to property in that State. There may be some conflict and some exceptions to this rule, but so far as the case at bar is concerned, it rests upon the clearest obligations of comity. "Whenever personal property is taken by arrest, attachment or execution within a State, the title so acquired under the laws of the State is held valid in every other State." Story on Conflict of Laws, sec. 550.

It becomes important, therefore, in determining whether creditors have acquired any valid liens which they may assert as against the bill of sale, to know whether the levy under the attachment was actually made in Nebraska or Kansas. If the former, the sheriff's title must be recognized; if the latter, it is of no validity.

There is another question which may arise in the future disposition of this case which requires notice. As we have seen this bill of sale, by the laws of Illinois, Nebraska, and Kansas, alike, was good inter partes, but in the absence of record and a delivery of possession was by the laws of the former State absolutely void as against creditors and subsequent purchasers, while by the laws of Nebraska and Kansas it would be only prima facie void, and might be upheld as against them by proof of good faith and sufficient consideration. Now, the question may arise as to the laws of which State shall control. It is a general proposition that as to personal contracts, and contracts concerning movable property, the lex loci contractus governs. In other words, whatever goes to the form, manner of execution, and all other matters affecting the validity of the instrument as a contract inter partes, is settled by the law of the State where the contract is entered into. And such a contract, if valid where executed, will be enforced in the courts of every other State, provided, at least, the same is not in conflict with the system of jurisprudence, and does not contravene the policy of such other State. As said by Mr. Justice Porter, in Ohio Ins. Co. v. Edmondson, 5 La. R. 295: "By the comity of nations, a practice has been adopted by which the courts of justice examine into and enforce contracts made in other States, and carry them into effect according to the laws of the place where the transaction took its rise. This practice has become so general in modern times, that it may be almost stated to be now a rule of international law, and it is subject only to the exception that the contract to which aid is required should not, either in itself or in the means used to give it effect, work an injury to the inhabitants of the country where

it is attempted to be enforced." And in Scudder v. Bk., 1 Otto, 406, 2 Cent. L. J. 287, the court said: "Matters bearing upon the execution, the interpretation and the validity of a contract are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought." And where a contract is made in one State, and valid by the laws of that State, concerning personal property situated in another State, it may well be that the latter, conceding its validity inter partes, shall uphold any of its own laws concerning the effect of that contract upon the rights of third parties domiciled within such State. In pursuance of this, it was early held in this court in Golden v. Cockrill, 1 Kas. 259, that a chattel mortgage executed and recorded in Missouri according to the laws thereof upon prop. erty situated in this State was invalid as against creditors here. At the time of such execution and record there was no law in force in Kansas providing for the registration of chatttel mortgages, and by the common law delivery was essential to the validity of such a conveyance as against third parties. Now our statutes provide that a chattel mortgage executed by a non-resident upon property within the State shall be filed in the county where the property is situate. Gen. Stat., p. 584, sec. 9. So that the policy of this State in reference to the protection of creditors and subsequent purchasers is now plainly expressed in its statutes. We are not advised by anything in the record as to the laws of Nebraska in this respect, and shall not therefore express any opinion thereon. It may also be remarked that if the claimants under this bill of sale rest their claims upon the laws of the State where they reside and where the instrument was executed they would take nothing as against creditors, and they are not prejudiced if the courts of this State enforce as against them the policy of this State as expressed in its statutes, or the laws of Nebraska where the property was situate at the time of the execution of the bill of sale.

One further matter we shall notice and then close this opinion. It appears that the claimants under this bill of sale after taking possession of the property shipped it to Chicago and sold it. Now, the bill of sale having been found to have been only a security, their interest in the property would in no event exceed their advances with interest and cost. Such is certainly the law of Kansas and such it is believed is the law generally. See Herman on Chattel Mortgages. And in determining the remedies under a contract the lex fori governs. Hence if they had proceeded in good faith under the statute to advertise and sell the property after taking it into their possession, their liability would not have exceeded the surplus of the proceeds of such sale above their debt, interest and costs. Having made other disposition their liability must be the excess of the value of the cattle at the time and place of seizure above such debt and interest. Perhaps a claim for such

liability could be enforced in this action only by a supplemental answer setting forth the facts of such disposition, but if so leave should be given to file such answer that the rights of the parties may be finally adjudicated in this action.

We forbear further remarks upon this case, but because the case was not decided in accordance with the views herein expressed, direct a reversal of the judgment and a new trial. All the justices concurring.

LEGAL REFORM.

Up to the adoption of the Constitution of Indiana of 1851, no person could practice law in that State until he was examined by the judges of the Supreme Court, or by two circuit judges, and found qualified. By article VII., section 21 of that Constitution it is provided that, "every person of good moral character, being a voter, shall be entitled to admission to practice law in all courts of justice." "Residence" is all that is required as a qualification for the office of judge of any of the courts of that State. As a matter of fact judges are generally selected from the profesion; but this is not required by law. And as no examination as to qualification or fitness is required on admission to the bar, there is of course no restriction as to who shall administer justice in the courts of that State.

An elective judiciary and a free admission to the bar, so popular a few years ago, and so often the subject of discussion on the "stump" and in the public press, has not resulted in the good that was promised for them. Indeed, no one who has carefully observed the operations of the new order of things can for a moment doubt that the result has been evil and only evil. An examination of the reports of the decisions of the court of last resort in that State, will demonstrate the fact that a very large per centum of the cases which reach that court go off and are decided upon some technical quibble, in no wise affecting the merits of the case, the result of a want of skill in the attorney managing it, or in some awkward blunder of the judge who tried it in the lower court.

It is hardly necessary to remind the professional reader that in every well defined system of municipal law, there is a natural and well-considered division, into declaratory, directory, remedial, sanction or vindicatory; all of which divisions are embraced in the more comprehensive one of rights and remedies. There has never been much difficulty in defining the former; the great trouble has been in the latter; not so much in the machinery by which the law is to be administered as in the practical workings of the machinery in giving effect to the rules of law, so that the result in each given case is the success of the right and the defeat of the wrong. Pleading, evidence and practice may all be reduced to elementary principles; but in the complications of human transactions, the application of these principles in the administration of justice becomes not only difficult, but it requires an extent of learning and mental vigor

What then, is the first and great reform required? The answer is obvious-increase the learning and ability of the bench and bar. But you may say with truth that you cannot legislate learning and ability into the heads of the judges and lawyers. What then, can be done? The first thing is to elevate the standard of the legal profession. It is idle to say that every voter of good moral character has the right to practice law. What is the legal profession? It is a body of men set apart by their learning in the law to aid the courts in the administration of justice. Whether you require evidence of learning or not, none can practice law with any degree of success without such learning. The practice of the law is not an ordinary employment, such as farming, blacksmithing or shoemaking. You now require an oath of a lawyer before he is permitted to practice. He is now liable to be disbarred for professional misconduct; would it be any more unreasonable to require of him some previous training to fit him to meet these responsibilities? If you were going to make a tailor of your son you would put him to learn the trade. If your son expected to be a civil engineer, he would study mathematics. Indeed, there is no kind of business that can be pursued with success without some previous preparation and training. The "merchant prince" has been in early life the merchant's clerk, or even perhaps the merchants' errand boy. The great civil engineer has perhaps carried the "rod."

But what shall be this previous training for the bar? In England a residence in the Inns of Court," with its readings and its practice in its moot-courts for a given period is required. In this country the law school and the examinations of the applicant by the judges of the court have hitherto been the usual channel through which come the members of the legal profession in the States requiring any qualification for admission to the profession.

A

Many of the law schools are of a very high order. Some of the best legal minds in the nation have been trained in them. But, as now organized and sustained, they can not meet the wants of the country. e have a National as well as a State judicial system. We have the Federal and we have the State courts to be supplied with judges and lawyers. There are about forty-five thousand lawyers engaged in the active practice of the profession in the United States. Besides the Federal judges, each State and Territory has a large number of judges. In Indiana (the State in which the writer lives), there are five judges of the supreme, thirty eight of the circuit, and some seven or eight of the superior and criminal courts, aggregating some fifty. Indiana may be considered about an average State. The thirty-eight States, without including

the District of Columbia or the territories, would make up an aggregate of some nineteen hundred judges. The graduates of the present law schools would not much more than supply the bench.

A great national law school at the capital, is not only desirable, but I submit a necessity. Such a school ought to be established and maintained nnder national authority. It ought to be of a high order, indeed it ought to be the model school, with its own complete "library," dedicated to, and to be used for the advancement of legal learning. A high standard both of scholarship and legal acquisition ought to be maintained. Its degrees ought to be conferred only when merited. Besides this, each State ought to establish and maintain a law school with a complete law library of its own, affording the means of a complete training to every young man of energy and natural ability, who might wish to enter upon the study of the law. No man should be enrolled as an attorney who lacked either learning or moral character. A license to practice law ought to mean something. It should be regarded as important as the commission of the judge. Professional misconduct should be punished not only by fine, and in some cases by imprisonment, but the delinquent should have his name stricken from the roll of attorneys. R. C. G.

SOME RECENT FOREIGN DECISIONS.

RIPARIAN PROPRIETOR RAILWAY COMPANY WATER FOR SUPPLY OF ENGINES.-Earl of Sandwich v. Great Northern R. Co. English High Court, Chy. Div. 27 W. R. 616. A railway company who are riparian proprietors are entitled to abstract from the stream a supply of water for their locomotive engines, provided that the supply taken is reasonable and does not interfere with the rights of lower proprietors. COSTS-EXECUTORSHIP EXPENSES,-Sharp v. Lush English High Court, Chy. Div. 27 W. R. 528. cutorship expenses," like "testamentary expenses," include the costs of an administration suit; they also include the costs of the funeral, and the costs of ware. housing specifically bequeathed chattels during the realization of the estate, and also rent accrued due since the testator's death for a house of which he was tenant from year to year.

"Exe

STOPPAGE IN TRANSITU-CONTRACT TO DELIVER FREE ON BOARD-DESTINATION NOT STATED-DURATION OF TRANSIT. - Ex parte Rosvear Clay Co. English Court of Appeal, 27 W. R. 591. 1. In a contract to deliver goods free on board, although no destination is mentioned, it is implied that they are delivered to be carried, and so long as they remain in the hands of the shipmaster as carrier, the vendor's right of stoppage in transitu remains. 2. To end the transitus there must be actual delivery of the goods to the vendee or his agent, not a mere constructive delivery such as that to a shipmaster on the order of and engaged by the vendee.

SALE OF GOODS DIVISIBLE CONTRACT-RIGHT OF PURCHASER TO REJECT.- Reuter v. Sala. English Court of Appeal, 27 W. R. 631. The plaintiffs agreed to sell and the defendants to buy about twenty-five tons (more or less) of Penang black pepper, October or November shipment from Penang to London, per sailing vessel or vessels, at fourpence and three-sixteenths of a penny per pound, * # * the name of the vessel or vessels, marks and full particu

lars to be declared to the buyer in writing within sixty days from the date of the bill of lading. On the 22d of January within sixty days of the date of three respective bills of lading, the plaintiffs declared twentyfive tons of pepper in three distinct parcels shipped on board the Borga, five tons of which, being a December shipment, were not in accordance with the contract. The defendants refused to accept the twenty-five tons. Subsequently, but after the sixty days within which the pepper was under the contract to be declared, the plaintiffs declared other five tons of pepper shipped in November on board the same vessel, in substitution for the five tons previously declared but which were not shipped till December. On the arrival of the ship the plaintiff tendered the whole twenty-five tons of pepper, and the defendants refused to accept any portion thereof. Held (by Thesiger and Cotton, L. J.J.: diss. Brett, L. J.), that the contract was an entire contract, that the time within which the pepper was to be declared was an essential condition which had not been complied with, and that, therefore, the defendants were not bound to accept any portion of the pepper. Per BRETT, L. J., that the plaintiffs were entitled to recover in respect of twenty tons, leaving the defendants to a action in respect of five tons.

cross

1..

TRADE-MARK ON EXPORTED GOODS - NAME ACQUIRED FROM THE MARK - DECEPTION OF ULTIMATE PURCHASER ABROAD GOODS KNOWN BY A VARIETY OF NAMES-FRAUDULENT DESIGN, WHETHER NECECSARY BURDEN OF PROOF · COMMON DEVICE-REFUSAL TO REGISTER.-Orr v. Johnston. English High Court, Chy. Div. 27 W. R. 573. Where a certain trade-mark is habitually placed on certain goods exported abroad, from which a certain name has been acquired for the goods in the foreign markets, an injunction will be granted to restrain the export of goods under another trade-mark which may deceive the ultimate purchaser abroad, though it would not deceive Englishmen, nor the dealers in the foreign markets. And this will be so, though the probable deception depends upon the name acquired by the goods, and not upon a comparison of the marks side by side. 2. The fact that a trader's goods are known by a variety of different names does not prevent his having a right which will be protected in respect of each of such names and the trade-mark from which they are all derived. 3. If a probability of deception is established, it is not necessary to prove an actual fraudulent design on the part of the defendant. 4. Where a material and a substantial part of a trademark has been taken by a rival trader, the onus lies upon the latter to disprove the probability of deception, and not upon the plaintiff to show that deception s to be apprehended. 5. To establish that a device is common to a trade it is not sufficient to produce a number of similar devices, without showing that they have been used or known. 6. A refusal to register a tra demark under the trade-marks registration acts, 1875-7, does not affect the pre-existing right of the owner of the mark to protection.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF MICHIGAN.

April Term, 1879.

COMMISSIONERS ON DECEDENTS' ESTATES-DEFINITION OF "COURT."-1. Commissioners on a deceased person's estate act judicially in passing on claims, but are not a "court" in the constitutional sense; and Comp. L. 1861, § 4420, authorizing their ap