1. A citizen of another state may contract in this state for a loan of money to be used in the state of his residence, and in good faith agree to pay interest therefor, lawful by the laws of the latter state, although the rate exceeds that allowed by the laws of this state.

2. In such case the contract is not rendered usurious by the fact that the note is executed in Ohio, if the parties, without intending to evade our usury laws, contract with reference to the laws of the state where the debtor resides.

3. It is not essential to the validity of such contract as to the interest, that the note should be made payable, in express terms, in the state where the maker resides. To ascertain whether the parties intended, in good faith, to contract with reference to the laws of such state, all the circumstances surrounding the transaction will be examined.

Judgment affirmed.

61. Calvin K. Warner et. al. v. The Sandusky, Mansfield and Newark Railroad Company et al. Error to the District Court of Licking County. UPSON, J. Held:

1. When the owner of land granted to a railroad company, the right to select a strip thereof, for its right of way, and from the terms of the grant, and the circumstances under which it was made, it is clear that both parties understood that the right granted was to be exercised at the time of the final location and construction of the railroad, and not afterwards, a court of equity will, by injunction, restrain such railroad company from taking possession of any additional part of said land, after its railroad has been located and completed.

2. When the terms of a grant of a right of way are general and indefinite, its location and use by the grantee, acquiesced in by the grantor, will have the same legal effect as if it had been fully described by the terms of the grant.

Judgment reversed and cause remanded for further proceedings.

No. 1226. William Dickson v. The State of Ohio. Error to the Court of Common Pleas of Hamilton County.

OKEY, J.

1. While the court is vested with discretion to refuse or permit the examination of a witness who has remained in court, by procurement or connivance of the party calling him, in violation of an order for the separation of witnesses, it is vested with no such discretion to prevent such examination where there has been no such procurement or connivance; but the order is to be enforced by the officers in attendance, and disobedience of it punished by the court for contempt.

2. On a trial for homicide caused by a deadly weapon in the hands of either the accused or his brother, both of whom were engaged in an affray with the deceased, in which the latter first attacked the brother, and there was a conflict in the evidence as to which struck the fatal blow, threats of the deceased, which may

have referred to the brother, made to a third person present immediately preceding the attack, though not communicated to either brother, are competent as part of the res gestæ.

3. On the trial of one charged with homicide, a witness on behalf of the state gave evidence tending to show that the defendant struck the blow which caused the death; and the witness having been cross-examined with a view to his contradiction, admitted that he had held a conversation on the subject of the homicide with another person, at a time and place stated, but denied that he had said to such person that it was not the defendant who struck the blow. Held: That the counsel for the state could not, on re-examination of the witness, show what he said in such conversation, until testimony was offered to contradict such witness.

Judgment reversed and cause remanded for a new

trial.

37. Newhall, Gale & Co. v. Landon & Son. Error to the District Court of Hamilton County. JOHNSON, C. J.

A sold to B fifty barrels. of flour out of a lot of one hundred barrels, all of the same brand and quality, stored by itself at a railroad depot. The carrier's charges had been paid, and the flour was in charge of the agent of the railroad company, as a warehouseman. Subsequently he sold to C and D twenty-five barrels each. He gave to each purchaser, in the order of sales, an order on the company's agent for the number of barrels purchased. B sent his team and driver, with his order, to bring away part of his purchase. The driver presented the order to the agent who received the same, and pointed out the lot of flour, from which the driver took 17 barrels, leaving the order and his receipt for the flour removed.

After this on the same day, C. and D. each presented his order receipted for and took away the flour they had purchased leaving the 33 bbls, due on B's order in store, which was destroyed by fire the ensuing night. It was the usage of the business with reference to which the parties contracted, that flour so received by rail and stored, was not removed by consignee to his possession but remained in the custody of the railroad company until sold, and that the owner sold in lots to such purchasers and gave to each purchaser an order on the company for the amount purchased, and upon presentation of such an order the agent would point out the lot from which the order was to be filled, and the purchaser would remove and receipt for the amount taken. Nothing remained to be done by the seller in contemplation of the parties to complete the sale.

Held That by such usage the flour called for by the order after its acceptance by the railroad company was the property of the purchaser, and he was fiable to the seller for the price, though part of it was destroyed before being removed to his actual possession. Wood v. McGee, 7 Ohio Repts. p. 467 distinguished.

Judgment reversed and cause remanded.

44. John and George Longbrake v. John Shaff. Error to the District Court of Licking County. Judgment affirmed without penalty. There will be no further report.

69. Lake Shore & Michigan Southern Railroad Company. Rufus Brush. Error to the District Court of

Lorain County. Judgment affirmed without penalty. There will be no further report.

76. Joseph Shells, Executor, &c. v. Cyrus Smith. Error to the District Court of Stark County. Dismissed for want of prosecution.

205. Christina Stumberger v. George F. Carpenter. Error to the District Court of Richland County. Settled and dismissed.

223. Cleveland, Brown & Co. and First National Bank of Cleveland v. Samuel Shoeman et al. Error to the District Court of Cuyahoga County. The charter of the First National Bank having expired, this action as to said Bank is revived in the name of James Pannell, Edward Bingham and Charles C. Baldwin.

891. John Henwood v. Wilson, Chritchfield et al. Error to the District Court of Knox County. Settled as per agreement on file.

500. Lorenzo Tyler v. Michael Barrett. Error to the District Court of Ashtabula County. Settled and dismissed at the plaintiff's costs.

548 William P. Huffman et al. v. Catharine Antrim et al. Error to the District Court of Montgomery County. Judgment reversed by consent of parties.

889. Dennis McClurg, administrator, etc., v. John Cole, executor, etc. Error to the District Court of Trumbull County. Settled and dismissed as per

1268. Frederick Giessen v. Margaret Klein. Error to the District Court of Court of Cuyahoga County. Stone & Hessenmueller and F. C. Gallup for plaintiff; W. S. Kerruish for defendant.

1269. L. C. Robinson, ex'r., &c., et al. v. Portsmouth Agricultural Works et al. Error to the District Court of Scioto County. W. A. Hut hinson and J. W. Bannon for plaintiffs; Moore & Newman for defendants.

1270. John Holst, treas., &c., v. George Roe. Error Reserved in the District Court of Washington County. Loonis & McCormick for plaintiff; Nye & Oldham for defendant.

1271. Cleveland, Mt. Vernon & Delaware R. R. Co. v. Edward Pryce. Error to the District Court of Franklin County.

1272. Rachel Bryant et al. v. Job Parry. Error to the District Court of Belmont County. Collins & Smith for plaintiffs; J. W. Shannon, Tannyhill & Petty, and J. C. Steebe for defendant.

1273. George P. Jones v. Mary J. Dawson. Error to the District Court of Franklin County. L. J. Critchfield for plaintiff; Bowdle & Huling for defendant.

1274. L. Schehlmann v. Catherine Smith. Error to the District Court of Cuyahoga County. Willson & Sykora for plaintiff; E. D. Stark for defendant.

1275. John M. Houston v. Samuel Beatty et al. Error to the District Court of Wyandot County. Chester R. Mott for plaintiff; James Olds for defendants.

1276. Emiline L. Osborn et al. v. Samuel McClelland et al. Error to the District Court of Franklin County. J. T. Holmes for plaintiffs; C. N. Olds and Lorenzo English for defendants.

1277, Gideon F. Castle v. Samuel S. Rickley. Error to the District Court of Franklin County. J. T. Holmes for plaintiff.

1260. Wellington Hawkins v. John S. McGhee. Error to the District Court of Jackson County. S. A. Nash, Laird & Tripp and Clark & McDougal for plaintiff.

1261. Wellington Hawkins v. John S. McGhee. Error to the District Court of Jackson County. S. A. Nash, Laird & Tripp and Clark & McDougal for plaintiff.

1262. Sandusky Wallace v. J. L. Carr, trustee, et al. Error to the District Court of Hardin County. James Kerrman and Stilling & Allen for plaintiff.

1263. Sandusky Wallace v. Henry C. Normand, J. L. Carr et al. Error to the District Court of Hardin County. James Kerrman and Stilling & Allen for plaintiff.

1264. Amanda Burbeck et al. v. Eliza Cutler et al. Error to the District Court of Hamilton County. Nat. C. McLean and Cornell & Marsh for plaintiffs.

1265. Benjamin Salberg v. Henry K. Bradley. Error to the District Court of Cuyahoga County. J. K. Hord for plaintiff; Adams & Beecher for defend

ant.

1266. Frank E. Bronson v. The Village of Oberlin. Error Reserved in the District Court of Lorain County. I. A. Webster for plaintiff.

1267. Charles W. Beals v. Charles A. Lewis et al. Error to the District Court of Huron County. Young & Young, and G. T. Stewart for plaintiff; C. L. & J. R. Kennaw for defendants.

The Ohio Law Journal.

Columbus, O., April 28, 1883

HUSBAND AND WIFE. (Copyright by J. H. Bowman.)

At common law the wife's skill and time, as well as her person and property, including devises from friends and relatives, belonged to her liege lord-her husband, (Duncan v. Roselle, 15 Ia. 501); and her property, earnings, and the bequests of her friends were subject, alike, to the payment of his debts. It permitted him to create a separate equitable estate for her benefit by calling a third person in to manage it for her, or by some act which would unmistakably show the intention on his part to make her a gift; (McLemore v. Pinkston, 31 Ala, 267.) But the mere declaration of the husband that he intended to make his wife a gift was not sufficient for that purpose, (McLean v. Longhands,5 Ves. 79; 2 Bright's "Husband and Wife," 202 et seq.); some overt act or passive acquiescence was necessary. Where the husband permitted his wife to receive, use and invest her separate earnings, such acquiescence was looked upon as an implied gift; (Wells' "Separate Property of Married Women," 174.) The same was true with regard to gifts and devises from friends; (Rivers v. Carleton, 50 Ala. 40; Slanning v. Style, 3 P. Wms. 334; 2 Kent 163.) Property thus acquired by the wife, she could dispose of hy will, where the statute permitted, (Cavenaugh v. Ainchbacker, 36 Ga. 500), and the husband could exercise no control over the matter; nor could he come in and defeat the devise by an attempted repudiation of the gift. But the claim of the husband's creditors was paramount to those of the wife, and where there were creditors at the time of the gift, if not paid, they could lay claim to the gift made to the wife; (Haden v. Ivey, 51 Ala. 385.)

The rule of the common law has been entirely abrogated or materially modified in most of the states. The reason for the common law rule may be said to be threefold. (Wells' "Separate Property of Married Women," section 123); first, because the

husband was bound to support and protect the wife, (Duncan v. Roselle, 15 Ia. 503); second, because her separate existence was not recognized, but was regarded as merged into that of her husband, (Rodemeyer v. Rodman, 5 Ia. 426; Musgrove v. Musgrove, 54 Ill. 186); and third, because being liable for the wife's support and her ante-nuptial contracts, he should receive her earnings and estate to assist him in meeting his obligations; (Conner v. Berry, 46 Ill. 370; McMurtry v. Webster, 48 Ill. 124.) And in Illinois, even after the passage of the enabling statute of 1861, the private earnings of the wife were held to belong to the husband, (Bear v. Hays, 36 Ill. 280; Fonde v. Patterson, 48 Ill. 52; Connre v. Berry, Id. 370; Schwartz v. Saunders, 46 Ill. 24); as well as the property purchased by her with her earnings and money (Farrell v. Patterson, 43 Ill. 52), and that he still had a tenancy, by curtsey, in all her lands owned before marriage, (Cole v. Van Riper, 44 Ill. 58.) But all this has been changed by the law of 1869, which takes her earnings entirely from the control of the husband, and releases him from all liability for the debts and ante-nuptial contracts of the wife; (Hawarth v. Warmser, 58 Ill. 48; Martin v. Robson, 65 Ill. 129.) But the husband is still entitled to the ser vices of his wife, because on him still falls the obligation to support the family, and if not entitled to her services while bound to

support her and her children, he could not require her to aid him, or claim to receive

the value of her services when she works for others; (Bean v. Kiah, 4 Hun. 171; Birkback v. Ackryoyd, 11. Id. 365.) Yet if the husband abandon his wife and family, neither the services nor the wages of his wife or minor children belong to him, neither are they liable for his debts; they pass to the mother, who, by his desertion, becomes the head of the family, and charged with its maintenance, (Hazelbaker v. Goodfellow, 64 Ill. 238.)

Where a woman takes the usual charge of her husband's household, and does nothing more than is ordinarily performed by a good housewife, if she suffers bodily injury through the fault or carelessness of another, she can not recover for the damages sustained, but if in addition to these duties, she also does work

mission of the husband, is she entitled to recover therefor; or the work is done in a bona fide business, carried on by herself, (Hazelbrake v. Goodfellow, 64 Ill. 241.)

S. C. 9 Am. Rep.

Where a man takes boarders into his house, or converts it into a hospital, and the wife, in addition to her ordinary household duties, does for the one, or superintends the other, in the absence of any special agreement, she is not entitled to pay therefor (Reynalds v. Robinson 64. N. Y. 589), because of the general rule that the husband is not chargeable with services rendered him by his wife (Wells' "Separate Property of M. W.," section 125,) or minor children. Nor is there any implied contract between members of the same family to pay for services rendered or living furnished; (Williams v. Hutchins, 3 N. Y. 312; Robinson v. Cushman, 2 Denio. 149; Andrus v .Foster, 17 Vt. 556; Fitch v. Peckham, 16 Id. 150; Owen v. Parsons, 5 W. & S. 357; Weir v. Weir, 3 B. Monr. 645; Mountain v. Fisher, 22 Wis. 93; Hall v. Finch, 29 Id. 278; 559; Ruckman's App., 61 Pa. St. 251; Duffey v. Duffey, 44 Id. 399; Reynolds v. Robinson, 64 N. Y. 589); not even when the child remains with the parent after majority (Andrus v. Foster, 17 Vt. 556; Fisher v. Fisher, 5 Wis. 472), and the parent hires out such child's services to various parties, (Fisher v. Fisher, supra; or where an infirm and helpless parent goes to live with a child, (Liddell v. Hastings, 11 Rep. 305; 48 Barb. 327; 3 Hun. 547; 1 Tucker 28) unless there has been a special agreement, (5 W. & S. 513; 16 W. R. 150; 17 Id. 556; 3 Cow. 312.) In an Iowa case, where a husband was insane and his guardian employed his wife to take care of him at a stipulated price per week, it was held that she could not recover such amount from his estate, because her best services were his without the contract, (Grant v. Green, 41 Ia. 88.)

It is well settled that a wife cannot charge her husband with services rendered even when the statute provides for an allowance to her of her separate earnings. Only when the labor is

Where there is no fraud on the part of the husband, the wife may raise grain and purchase property with the proceeds, which property will be beyond the reach of her husband's creditors. It is otherwise, however, if she suffers her separate earnings to become mixed with her husband's inoney or earnings, (Fisk v. Cushman, 6 Cush. 20; Glover v. Alcott, 11 Mich. 47), for in that case, they would be looked upon in law as turned over to him, (McCluskey v. Provident S. Inst., 103 Mass. 300; Fisk v. Cushman, supra; contra, Hinkley v. Philips, 3 Allen 77;) at most she could but be considered as a preferred creditor, (Glidden v. Taylor, 16 Ohio St. 509). Yet if her earnings, the exact amount of which can be ascertained, be invested in land together with her husband's, and the title to same is taken in the names of husband and wife jointly, her interest will be protected.

stranger, or

With the assent of the husband, in most of the states, a married woman may carry on business as business as a feme sole, with her separate funds or those furnished by her friends, a stranger, or even by her husband, (Lockwood v. Collin, 4 Robt. 129), and this right carries with it the power to contract in reference to such separate business, or respecting her services, where her earnings are her separate property, (Adams v. Honness, 62 Barb. 326), and to bind her separate property where it is necessary to do so in carrying on her separate business, (Todd v. Lee, 15 Wis. 65; S. C. 16 Id. 480; Barton v. Beer, 35 Barb. 78), whether such property be indisputably hers or not, (Stevens v. Reed, 112 Mass. 515) either for goods purchased (Parker v. Simonds, 1 Allen 258), or for rent of the property in which her business is carried on, (Draper v. Stouvence, 35 N. Y. 507). But the business must be distinctly her own, and entirely separate from that of her husband, (Well's "Separate Property of M. W.," section 147.) Yet the husband's co-operation or assistance in a business purely the wife's, will not in any affect its character or her rights,

manner