that a wife may enter into partnership even with her husband. Respecting the rights and powers of husband and wife as co-partners and as joint owners, the courts draw a nice distinction (Reiman v. Hamilton, 111 Mass. 246.) That husband and wife can contract there is no longer any question-they started out on a contract (Schouler's Dom. Rel.), but they can not legally contract to annul the first contract (XVII Am. L. Rev. [N. s.] 74 et seq.); and where they, through some disagreement or misunderstanding, are living apart, a note executed by the husband to induce his wife to return to his bed and board is void (Copeland v. Boaz, 9 Box. 223. A contrary doctrine prevails in Illinois (Phillips v. Meyers, 83 M11. 67; S. C. 25 Am. Rep. 295).

A wife may mortgage her separate property (where there is no statutory prohibition, like there is in Indiana) to secure her husband's debt to a third person, and it will be valid although she has no interest in the debt, and as to her it is without consideration, (Bartlett v. Bartlett, 4 Allen 442; Heburn v. Warner, 112 Mass. 276; Thacker v. Churchill, 118 Id 108; Miller v. Lockwood, 32 N. Y. 293; Hall v. Toy, 24 Alb. L. J. 517); and by this act she is placed in the position of surety for him, Loomer v. Wheelright, 3 Sandf. 135; Johns v. Reardon, 11 Md. 465; Hammit v. Bull, 8 Phila. 29), and entire good faith must be exercised towards her by all the parties; fraud or coercion works a forfeiture of the security; (Hammit v. Bull, 8 Phila. 29; Wolff v. Van Meter, 19 Ia. 134; Sreen v. Scronage, Ib 464; Eadie v. Slimmon, 26 N. Y. 9; Williams v. Bagley, L. R. 1 H. L. 200). And by agreement they may "defraud" the government out of a naturalization fee, for where an alien woman marries a man who is a citizen of the United States, or afterwards becomes such, she thus, without the intervention of a probate judge or other dignitary, becomes a full-fledged citizen, (Leonard v. Grant, 11 Rep. 327; Burton v. Burton, 1 Keyes, 359; Kelly v. Owen, 7 Wall, 496; Kane v. McCarthy, 63 N. C. 299; Regina v. Manning, 2 Car. & K. 886; 2 Bishop's M. & D. Sec. 505.)

A husband may make his wife agent (Wells, Sec. 172) but probably not by simply ratifying her act (Miners v. Munson, 53 Ind. 138.)

The wife may also become the husband's creditor (In re Wood, 5 Fed. Rep. 443; Glidden v. Taylor, 16 O. St. 509; Oliver v. Moore, 26 O St. 298; Kaufman v. Whitney, 50 Miss. 103; 2 Story's Eq. Jr. Sec. 1373); and she, on the other hand, may become his debtor; (Oliver v. Moore, 23 Ohio St. 473). Where the husband is indebted to the wife she will be entitled to prove up her claim against his estate (In re Wood, supra), even though it be insolvent (In re Corse, 2 Fed. Rep. 307). A husband may prefer his wife in a deed of trust for the benefit of creditors, or he may convey property to her, absolutely, in consideration and discharge of a debt, in the same way he could in reference to a debt due by him to any other party. (Crane v. Barkdall, 10 Md. L. Rec. No. 6.)

In Ohio,since the passage of the enabling act of 1861 (58 O. L. 54), all moneys coming to the wife by devise, descent, or otherwise are her separate property; (In re Wood, supra). It is in some cases very difficult to determine what is separate property of the wife and what not. It has been held that her clothes supplied her by her husband are not (Pratt v. State, 35 Ohio St. 514), while damages recovered for an assault is (Stevenson v. Morris, 37 Ohio St. 10). Where the husband makes a deposit in bank in his wife's name for her, and declares at the time that it is hers and that he wants it put to her credit, it is her separate property (Fisk v. Cushman, 6 Cush. 20); but where a wife makes a deposit in a bank in the name of herself and her husband, it belongs to her husband; (Green v. Green, 11 W. Dig. 374). Deposits made in a savings bank in her name from the joint earnings of herself and husband, will be hers as against his heirs, but his as against his creditors; (Ames v. Chew, 5 Met. 320). A promissory note made by a husband to his wife, in his hands, has been held to be her separate property; (Tredwell v. Hoffman, 5 Daly, 207). Lands hired or rented to a wife, whether upon her own credit or by payment from her separate estate, is her seperate property, (Preott v. Lawrence, 51 N. Y. 219; Westwelt v. Ackley, 2 Hun. 258); an expectancy in land has been held not (Kinne v. Kinne, 45 How. Pr. 61), but the possession of lands of an absconded husband, with an inchoate right of dower, may be (Hart v. Young, 1 Lans. 417), and

the giving of a mortgage by a wife has been held to be presumptive evidence that it is her separate estate (Kidd v. Conway, 65 Barb. 158.) It has been held that where a husband takes a security for a debt due from a third person in the name of himself and wife "he is understood to assent and intend that she

shall have some peculiar benefit from it; (Draper v. Jackson, 16 Mass. 480; Fisk v. Cushman, 6 Cush. 20). and where the husband makes an investment of the wife's funds, at the time declaring that it is hers and for her, her claim thereto will be upheld against his administrator, (Stanwood v. Stanwood, 17 Mass. 57; Phelps v. Phelps, 20 Pick. 556).

If a husband wrongfully uses his wife's money to pay a debt to a bank due from him and which was secured, the wife is subrogated to the interest of the bank in such security; [Greiver v. Greiver, Cal Sup. Ct.] 12 Rep. 647. A wife may leave her property to her husband the same as to a third party, and where he lives with her upon her separate property and occupies it, he will be looked upon in law as her tenant, and presumed to hold it as tenant under contract, verbal or written (Albin v. Lord, 39 N. H. 196; 2 Story's Eq. Jur., Sec. 1396.)

THE NEW SUPREME COURT LAW.

In response to inquiries concerning the law for the relief of the Supreme Court docket passed during the last days of the session we .publish the bill in full, as follows:

An Act

To amend sections 455, 6710, 6711 and 7356 of the Revised Statutes.

SECTION 1. Be it enacted by the General Assembly of the State of Ohio, That sections four hundred and fifty-five, sixty-seven hundred and ten, sixty-seven hundred and eleven, and seventy-three hundred and fifty-six, of the revised statutes, be so amended as to read as follows:

Section 455. When an important and difficult question of law arises in a cause or proceeding in the district court, the court may, on motion of one or both parties, reserve the cause for decision in the supreme court; but the district court, in every such case, shall find the facts, and shall set forth in the entry of reservation the question or questions of law; nor shall any such reservation be made unless the district court is unanimous in the opinion that the cause or proceeding should be reserved.

Section 6710. A judgment rendered or final order made by the district or superior court of Cincinnati may be reversed, vacated or modified by the supreme court, on petition in error filed by leave of the supreme court or a judge thereof for like errors of law, appearing in like manner, and the judgments and final orders of the superior court of Cincinnati in general term shall not be reviewable in the district court; but no judgment or final order of the district court or superior court of Cincinnati in general term, reversing a judgment or final order and remanding the cause or matter for a new trial on the merits or judg ment or order rendered in the cause or proceeding previous to such reversal, shall be reversed in the supreme court; nor shall the supreme court, in any cause or proceeding, except where its jurisdiction is original, be required to determine as to the weight of the

evidence.

Section 6711. When a petition in error is filed in the supreme court, so much of the record to be reviewed as will show the error complained of shall be printed, and ten of the printed copies thereof filed with the papers, have done, or he may deposit with the clerk which printing the plaintiff in error may sufficient money to pay the cost thereof; and if he fail for sixty days after filing the petition, to file such printed copies or make such deposit, the petition in error shall be dismissed, unless the court, on good cause shown, extend the time or dispense with such printing; and the fair expense of such printing shall be taxed as part of the costs. The clerk shall deliver to the court, at each monthly call of the docket, a list of cases in default under this section, and the court shall call the same and make disposition thereof as herein provided.

Section 7356. In any criminal case, including a conviction for a violation of an ordinance of a municipal corporation, the judg ment or final order of a court or officer inferior to the court of common pleas, may be reviewed in the court of common pleas; a judgment or final order of any court or officer inferior to the district court, may be reviewed in the district court; and a judgment or final order of the district court or court of common pleas in cases of conviction of a felony or misdemeanor, and the judgment of a district court in any other case involving the constitutionality or construction of a statute, may be reviewed in the supreme court; but in the supreme court only errors of law, occurring at the trial or appearing in the pleadings or judgment, can be reviewed.

SEC. 2. Original sections 455, 6710, 6711 and 7356, of the revised statutes, be and the same are hereby repealed; and this act shall take effect and be in force from and after its

To the Attorneys of Ohio:

By the provision of an act passed by the General Assembly of Ohio, April 18, 1883, entitled, "An act to amend sections 455, 6710, 6711 and 7356 of the Revised Statutes," no petition in error can be filed in the Supreme Court, except by leave of the court. You will You will hereafter forward with your petition in error, in addition to the papers mentioned in section 6716 of the Revised Statutes, a motion for leave to file, proof of service of notice of motion on opposite counsel and $2 motion fee.

(Signed) DWIGHT CROWELL, Clerk. This remarkable "order" i no doubt remarkable because it relates to a very remarkable law; a law, in fact, so wonderful in its construction and application that it bewilders at once its involuntary creators and its unfortunate victims.

Section 455 provides, as any one can see at glance, for the reservation of causes for decision in the Supreme Court. The district court may reserve the cause or may not, as the district judges see fit. If they do so reserve the cause, they are required to find the facts. In which case the action of the district court is final; there is no appeal. The district court is a court of last resort. If one party sees fit to make a motion to reserve the case that motion settles forever that case, so far as facts are concerned. The court may err as to the findings of fact, and the law may be used as a convenient mold in which to shape the finding of fact; and the Supreme Court not being allowed to go behind the returns to ascertain whether these findings were right or wrong, must, of course, affirm the district court.

Section 6710 refers only to judgments or final orders made by the District or Superior Court of Cincinnati. Now whatever the District or Superior Court of Cincinnati may be, we cannot learn. There is no such court, there never was any such court. Yet this entire section relates to this court alone. There is not a break in the entire section. There are two semi-colons followed, one by "nor" and the other by "but," both which

words always refer to the preceding part of the sentence for explanation, inference or modification.

66

This section, referring to no known court, provides that the judgments or final orders therein may be "reversed," "vacated" or "modified" by the Supreme Court. These judgments cannot be "affirmed." There is no provision for affirmance. The utmost the Supreme Court can do will be either to "reverse," vacate" or "modify," for "like errors of law appearing in like manner." Whatever this jargon means, or may mean, is a mystery more puzzling than that of Edwin Drood. But we see further, that no judgment or final order of this impossible court-this "district court or superior court of Cincinnati" in general term-(special terms don't come within the meaning of this section), reversing a judgment or final order and remanding the cause for a new trial or judgment, &c., &c., shall be No pro"reversed" in the Supreme Court. vision is made for the affirmance of any cases, therefore these cannot be affirmed, and a reversal being inhibited, such cases cannot be reversed. True, they may be " vacated" or modified, and if vacated, it will answer about as well as a reversal. Except, indeed, cases tried in this non-existing court at special terms, which, of course, do not fall within the province of this act.

Section 6711 provides for the printing of" so much of the record as will show the error complained of."

So far, in sections 455 and 6710, there is no word to prevent the filing of petition in error without leave, except in cases in the district or superior court of Cincinnati. No one can claim that the provision for the reservation of cases in section 455 renders any leave necessary when the case is not reversed, and certainly no one can claim that the unbroken sentence of section 6710 referring to a particular court can be tortured into general application as a general law.

Section 7356 relates only to criminal cases, as will be seen at a glance, and the strict construction of this section precludes all possibility of reference to any but criminal cases.

The repealing section (sec 2 of the act itself) cannot surely be of wider or different

application than the sections which take the place of the sections repealed. That the act shall take effect and be in force from and

after its passage, this section properly states; but that the words "shall apply to all cases and proceedings hereafter brought in or into the Supreme Court" can refer to anything or any cases except those specially provided for in the preceding sections, is utterly impossible and inconsistent with any rule of statutory construction, or any exercise of common intelligence. We cannot see how the idea can prevail for an instant that the rules of the Supreme Court in ordinary cases are changed in the smallest degree, or that any leave is required to file a petition in error. When the Supreme Court has so decided and so ordered, we will admit that said leave is necessary. Until then, however, it hardly seems necessary. And further, if leave is necessary, we would respectfully desire to know why a motion for leave to file a petition in error should be filed with the petition in error itself. Would it not be well to first obtain leave and then file the petition in error? We apprehend that the Supreme Court will only take time to read this miserable nondescript legislation, and then promptly declare it as unconstitutional as it is absurd, disjointed, inapplicable, inconsistent and unreasonable.

It is but just to state that, although it is true Judge Okey was the author of a bill the title of which was the same as this, the original was so mutilated and patched up before its passage that the law as it is bears no resemblance whatever to the law as it was intended to be by the judge.

Reported Cases.

B.

WILLIAM J. EDWARDS ET AL TRUSTEES, &o., v. DARIUS M. MOCLURG ET AL.

(Chio Supreme Court. March 27, 1883.) DISSENTING OPINION. [For case see JOURNAL of last week.]

OKEY, J.

In my opinion the district court did not err. Much depends, in the proper determination of this case, upon the instrument executed by Adam McClurg, herein before set

forth, in the construction of which instrument regard must be had to the words in which it is expressed, applied to the facts then known to the parties. The granting clause is quoted in the opinion of the majority, and it is said that it is sufficient "to transfer a fee simple estate in the coal," and that the estate so granted cannot be cut down except by words equally clear. But it is not denied that the words which follow the granting clause show that a fee simple was not intended. It cannot properly be a fee simple if it is either, base, conditional or qualified." 1 Wash. R. P. (4th ed.) 78, n. 1. Finding that no indefeasible estate was conveyed, the rule invoked has no application, and we must seek the meaning of the instrument by exploring all its terms. Jackson v. Myers, 3 John. L. 388.

It is not denied that if the instrument is a lease of the coal, the mortgagees, Darius M. McClurg and John McClurg, became entitled, on condition broken, to the rents that subsequently became due. Burden v. Thayer, 3 Met. (Mass.) 76. But they are entitled to the sums becoming due annually, even if the instrument was not a lease; for something more than a naked possibility of reverter-something more than a mere possibility or expectancy, not coupled with an interest in or growing out of the property-remained in Adam McClurg, and consequently in the mortgagor, who succeeded to his interests, and hence there was an interest which could be effectually mortgaged to Darius M. and John. 1 Jones on Mortg. § 136. It will be observed that by each of those mortgages, the mortgagor grants, bargains, sells and conveys to the mortgagee all his right, title and interest in the premises.

No doubt one owning land in which there is unmined coal, may convey to another a fee in the coal, if he have a fee, or he may convey a less estate; or such owner may give to another license or permission to mine such coal, and such license or permission may be made to assume the form of a lease. Leases may be at will, for years, for life, or of perpetual duration; and, whatever the term, it may be subject to conditions, whereby it may be defeated or terminated. Warner v. Tanner, 38 Ohio St. 118.

In my opinion the instrument executed by Adam McClurg is a lease; and I am led to the conclusion by the following among other considerations taken together and not singlythat violence is done to the intention of the parties by any other construction:

1. The consideration named is one dollar and "the covenants and agreements of the second party, to be performed as hereinafter stipulated," by force of which provision and others in the instrument, a forfeiture might

be decreed for violation of the covenants. 2. The things contracted about were mining privileges" stone-coal mining rights and privileges, to-wit: all the stone-coal lying and being in, under and upon the following lands" (described), with the right to enter on the lands, search for coal, and mine and remove such coal.

3. Why reserve the right to dispose of the coal if a fee was granted?

4. The parties of the second part agree "to pay all taxes or public charges of every kind, national, state or municipal, that may be assessed upon said coal, or upon any of the machinery or structures of said second party." But by the act of 1859 (4 Curwen, 3309, § 9), then and still in force (Rev. Stats. § 2792), where the fee of the soil is in one person or corporation and the right to the coal in the land in another, the soil and the coal must be "valued and listed agreeably to such ownership in separate entries, and taxed to the parties owning the same respectively."

5. The money consideration is not a sum in solido, nor even a uniform sum each year, but nine hundred dollars "on the first day of October, and in each year during the continuance of this agreement," and thirty cents in addition for each ton above 3000 mined in any year, and "payments made in any year in excess of coal actually mined in such year, shall be applied on the excess of coal mined in after years over said stipulated quantity." These provisions seem very proper, if we consider them as prescribing a mode of fixing the amount of rent to be paid; but this is not a usual or natural way of stating the consideration for a conveyance of real property.

6. The parties of the second part have the right to abandon at any time. In the opinion of the majority two theories with respect to this provision are suggested, neither of which, if established, would prove this judgment to be erroneous. In support of the latter, i. e. that the right to abandon must be exercised in good faith, Cook v. Andrews, 36 Ohio St. 174, is relied on; but the lease construed in that case was quite different from this instrument, and I am unable to see that the decision sheds any light on this case. Here the provision is too plain to be misunderstood: "It is mutually understood and agreed"-so the instrument provides" that said second party, their heirs and assigns, shall have the right to abandon this contract and yield up said coal mine and privileges, at any time they shall determine, in their judgment, that said coal is in quantity, quality or condition no longer minable with economy and profit; and when this contract shall be ended for any reason, said second party, their heirs or assigns, shall have the right to remove their machinery and other

structures and property from said land." That this conferred power to abandon which was practically unlimited, I cannot doubt.

7. The parties speak of the instrument as a "contract" and an" agreement."

8. The wife of Adam McClurg, then and still living. is not a party to the instrument, nor does it appear that she was requested to sign it.

9. The parties of the second part caused the instrument to be recorded in the record of leases and not elsewhere. The recorder was then and still is required to keep four sets of records, in one of which deeds and in another leases are to be recorded. S. & C. 1278; S. &. S. 655; Rev. Stats. § 1143. And in the answer

of the Vienna Coal and Iron Co. it is said that "it is the owner and holder of the coal lease contract, and the coal, coal mining right, privilege and easements therein and thereby granted and conveyed by Adam McClurg: *

*

That the stipulated annual coal rent, therein provided, whether coal has been mined or not to meet the quantity of 3000 tons of 2240 pounds to the ton, a thirty cents per ton being $900 per year, has been regularly paid in advance, and sufficient coal has not yet been mined from said lands to to equal said advance yearly rents paid: that there is nothing now due on said coal lease for rent or royalty from this respondent, or from the lessees in said lease, and nothing will become due thereon until October 1, 1878, when $900 more will become due on the whole lease, provided", etc. This shows very clearly how the the instrument has been regarded. "Tell me what you have done under such a deed, and I will tell you what that deed means." Atty. Gen. v. Drummond, 1 Drury & Warren, 453, 368; aff. 2 H. of L. 837; Whart. Con. § 653.

In support of the judgment of reversal in this case, two decisions are cited in the opinion of McIlvaine, J. One of these is Caldwell v. Fulton, 31 Pa. St. 475, which is said to hold that by a deed in which there were no words importing a grant of the fee, but which gave absolute dominion over the stone coal in certain lands to the grantce, who agreed to pay a certain and fixed sum in solido, a conveyance of the coal in place passed absolutely. But an examination of the case will show that whatever was granted was in terms granted to the grantee, his heirs and assigns, for a sum in solido. The objection was that a grant of the privilege of digging and carrying away coal did not grant the coal; but the court overruled the objection, and properly. 3 Wash. R.P. (4th ed.) 382. The little application the decision has to this case is in favor of the view I have endeavored to maintain. See cases cited by counsel, in which that case is commented