separate estate except sub modo (M. E. Church v. Jaques, 3 John Ch. 77; Lancaster v. Dalon, 1 Rowle 231; Thomas v. Farewell, 2 Whart. 11; Morgan v. Elam, 4 Yerg. 375; Rogers v. Smith, 4 Pa. 93), but the better and now prevailing opinion is that she can dispose of it absolutely and without regard to mode, unless a particular mode is pointed out and she restricted to that in the instrument or law creating the estate (Jaques v. M. E. Church, 17 Johns 548; Vizonneau v. Pegram, 2 Leigh 183; West v. West, 3 Rand. 373; Whitacre v. Blair, 3 J. J. Marsh 239; Strong v. Skinner, 4 Barb. 546; Machir v. Burroughs, 14 Ohio St. 519; Leaycraft v. Hedden, 3 Green's Ch. 512). vol. 2, part 2, (4 Ed.) page 1038.) If the fact that the wife executed the note and mortga re simply as the surety of the husband does not appear on the face of the instrument, it may be establishtd by parol proof (Neimcewicz v. Gahn, 3 Paige 614). And the wife being the surety, the law presumes that her husband, who is her principal, not only agreed to pay the debts, but to indemnify her against loss, (Vartie v. Underwood, 18 Barb. 561), and if he fails to do so, she will have a right of action against him or his estate, (Neimcewicz v. Gahn, 3 Paige 614), for, as Lord Hardwick has well said (Paterick v. Powlet, 2 Atk. 384), "She must be considered as a distinct person, and is equally entitled to stand in place of the mortgagee as a stranger" (Aguilar v. Aguilar, 5 Mod. Rep. 414). But where a wife joins her In Ohio it was formerly held that a wife could not become surety for her husband or any one else, (Levy v. Earl, 30 Ohio St. 480) and other states hold the same doctrine (Per-husband in the mortgaging of his own estate, kins v. Elliott, 23 N. J. Ev. 526); but it is now well settled in this state, (Ante p.554), as well as others, that she may; and that such suretyship is a charge upon her separate estate (Williams v. Munston, 35 Ohio St. 296; Patrick v. Littell, 36 Id. 79-83). This is the modern English chancery doctrine (Hulme v. Tenont, 1 Bro. C. C. 20; Stewart v. Ketkerwell, 3 Madd. 387), and the one that is becoming generally established in this country (Jarman v. Wilkinson, 7 B. Mon. 293, Bell v., Kellar, 13 Id. 381; Caldwell v. Sawyer, 3 Ala. 283; Bell v. Andrews, 34 Id. 538; Cowles v. Morgan, Ib. 535; Burnett v. Hawpe, 25 Gratt. 481; Metp. Bk. of St. L. v. Taylor, 52 Mo. 338; Daring v. Boyle, 8 Kas. 525). When a married woman becomes surety for her husband, she stands as any other surety, (Ante p. 551); consequently the separate proporty mortgaged to secure his debts, stands in the relations and has all the advantages of a stranger who is surety, and the statute of limitations, as to such surety, runs from the maturity of the note secured, notwitnstanding the debt is kept alive against the husband by proceedings in bankruptcy, or any other means (Wolford's Admr. v. Unger, 5 Tex. L. J. 230; Neimceuricz v. Gahn, 3 Paige 614; S. C. 11 Wend. 312; Hawley v Bradford, 9 Paige 200; Vartie v. Underwood, 18 Barb. 561; 1 Bishop on M. W., section 604; Jones on Mort., sections 21-2; Leading Cases in Equity, she is not entitled to have such mortgage satisfied out of the husband's interest exclusively, so as to give her dower in the whole premises instead of the equity of redemption simply; (Hawley v. Bradford, 9 Paige 200; Table v. Table, 1 Johns. Ch. 45; Titus v. Neilson, 5 Id. 452); but she will be entitled to have the costs of foreclosure paid out of the husband's twothirds, (Table v. Table, 1 Paige 45). In order that the wife may be enabled to avail herself of all her privileges as surety, such suretyship must be disclosed to the mortgagee at the time the instrument is executed (Gahn v. Neimcewicz's Exs, 11 Wend. 312); the fact that such mortgagee knows that she is the owner of the real estate motrgaged does not alter the case. Finally it may be said that under the law as it now stands in this state, and the same is true in many others, the separate property of a married woman is liable for any debts incurred for her separate benefit or that of her estate, or which was incurred upon the faith and credit of such separate estate. It has been held that when the owner of an estate dies, it is the duty of the estate to bury him (Patterson v. Patterson, 59 N. Y. 574; Parker v. Lewis, 2 Dev. (N. C.) 21; Ellis v. Ellis, 12 Pick. 178; Lawall v. Kreidler, 3 Rawle, 300), and this applies to the estate of married women as well as to those of men. (Helmkamp v. Kater, Admr. 15 Chicago L. News). Where a wife dies leaving a separate estate, the husband, as administrator, may charge her estate up with her funeral expenses (McCune v. Cravey, 14 Hun. 552; Gregory v. Lockyer, 16 Mod. Rep. 90), and where she has made such expenses a charge upon her estate, the husband may recover against such estate expenses paid by him (Willeter v. Dobie, Kay & J. 647). Section 6090, Revised Statutes of this state, provides that an administrator or executor shall pay "first-the funeral expenses, those of the last sickness, and the expenses of administration." This law of distribution applies to all cases where there is any estate to be distributed, and the rule applies to the estate and not to the person deceased, so that the estate of a married women, as well as that of a feme sole or a man, is subject to it (Helmkamp v. Kater. supra). 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, aud he was liable 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. Error to the District Court of Hamilton County. The answer admits the purchase of seventeen barrels at the price stated, avers payment therefor of eighty-seven dollars and twenty-five cents, and denies a sale and delivery of the balance. In the common pleas the case was heard and determined upon the following special finding of facts: "First. On August 28, 1876, during the forenoon, the plaintiffs, who were at that date commission merchants, in Cincinnati, Ohio, contracted to sell to the defendants, fifty barrels of flour of a particular quality and brand; the price fixed by the contract was $5.15 per barrel; on the afternoon of the same day the defendants received from the plaintiffs an order upon the Dayton Short Line Railroad Company, for the delivery to the defendants of fifty barrels of flour, of the brand and character called for by the terms of the contract. "Second. The plaintiffs were the owners, at the time of giving the order, of one hundred barrels of the brand and character called for by the contract; said one hundred barrels of flour had arrived at the depot of said railroad company in Cincinnati and was stored in the depot in a particular location or compartment; on the said twenty-eighth day of August, plaintiffs sold twenty-five barrels of said one hundred barrels, to one Smith, and gave him an order upon the railroad company therefor; on the twenty-ninth of August, they sold to one Sweeny twenty-five barrels, and gave him an order therefor; on the twentyninth, between four and five o'clock, P. M., the defendants sent their drayman to the depot, with the order for the fifty barrels for the purpose of obtaining some of the flour; he delivered the order to the railroad clerk, took seventeen barrels of the flour, left the order with the railroad clerk who noted the delivery of the seventeen barrels on the back of it, and hauled the seventeen barrels to defendants store; pursuant to his instructions, later in the afternoon of the twenty-ninth, Smith and Sweeny received and hauled away the remainder of flour due them upon their respective orders, thus leaving thirty-three barrels of the one hundred before referred to; during the next succeeding night, to wit: at 12 o'clock, A. M., August the thirtieth, the depot was burned and the thirty-three barrels of flour left of the one hundred as above stated, were totally destroyed. Subsequently the defendants paid plaintiffs for the seventeen barrels which had been hauled, such payment being without prej udice to the rights of either party touching the remaining thirty-three barrels. "Third. Neither plaintiffs or the railroad company set apart at any time any specific barrels to the defendants and there was no such setting off, unless the fact that Sweeny and Smith hauled away all of the flour save the thirty-three barrels which were left, and the hauling of the seventeen barrels hauled by defendants amounted to such separation and appropriation. Neither defendants or any of their agents saw any of the flour which remained after the drayman took away the seventeen barrels, nor had they seen any part of the one hundred at any time prior to the hauling of the seventeen barrels, nor did they know of the sales to Smith and Sweeny, or the removal of any flour by them until after the fire. "Fourth. The usage of business in Cincinnati, between buyers and sellers of flour, at and before the dates named, was this: Flour arrives at the depots consigned to commission merchants. The railroad company notifies the merchant of its arrival, who pays the freight and signs a full receipt acknowledging the delivery of the flour to him. The railroad company then stores the flour in a particular location or compartment in its depot, of which the merchant is advised; he then makes sales, and upon the conclusion of an agreement of sale, he hands to the buyers an order upon the railroad company, for the number of barrels called for by the contract. The purchaser sends his dray or wagon with the order. The driver delivers the order to the railroad clerk, who points out the location or compartment in which the flour, against which the order is drawn, is contained, and the driver proceeds to load his vehicle. If the order calls for a certain number of barrels, and the compartment contains a larger number, the driver makes the selection and removal of the number to which he is entitled, and receipts for them. The order is left with the railroad company when the first road is hauled, and separate receipt given by the hauler for the amount of each load. The parties to this suit understood and pursued this, the usual mode of transacting this business. The order from the seller to the buyer upon the railroad company, specifies the number of barrels, the number of the car upon which the flour was transported to the depot, and the number of the location or compartment in which it is stored, also the brand and quality of the flour. "Fifth. The one hundred barrels of flour before referred to, was all that was in the location in which it was stored on the twentyeighth, twenty-ninth, and thirtieth of August, and it was all alike, and answered the terms of the contract between plainttiffs and defendants in all respects." The conclusions of law were: "First. That upon the facts as found by the court, the title to the thirty-three barrels of flour destroyed in the depot, remains in the plaintiffs until the destruction thereof by fire, and did not pass to defendants. "Second. That the plaintiffs are not entitled upon said facts, to maintain an action against the defendants as to said thirty-three barrels as for goods bargained and sold, or goods sold and delivered. "Third. It is therefore adjudged that defendants go hence without day and recover their costs in this behalf expended and taxed at $ To all of which said plaintiffs, by their counsel, except. new "Judgment and findings of court for defendants. Plaintiffs except. Motion for trial overruled, to which plaintiffs except." This judgment was affirmed by the district court. JOHNSON, C. J., Since the decision of Whitehouse v. Frost, 12 East. 614, the cases bearing on the question here involved have been numerous but by no means uniform. The tendency of the more recent cases has been to follow that case though its correctness has been ably challenged. This tendency has arisen out of the apparent necessity of adapting the principles of the common law to the changes in the new methods adopted for the transaction of business. The accepted principles of right and justice. form the groundwork of the law of contracts. In all questions involving contract relations, the convenience and wants of business give rise to usages which become part of the contract, where it is made with reference to such usages. usages. This is often called the expansive property of the common law, but it is rather the application of accepted principles of right and justice as evidenced by common law, to new phases and methods in the transaction of business. In view of the nature of this particular business and the known usage governing buyer and seller we think it clear that as between them, the delivery of the order from the seller, by the purchaser to the warehouseman and his acceptance of the same, the right to the fifty barrels of flour was perfected in the purchaser and that thereafter it became his property. It is true there was one hundred barrels out of which the order was to be filled, but it was all of the same quality, and by the known usage the only delivery to be made by the seller was by an order on the warehouseman which, when presented, entitled the purchaser to separate and remove the property. No selection properly speaking had to be made as all the barrels were alike, but only a counting off and separation, and in this respect it differs from those cases where it is the intention of the parties, that there is to be a selection or designation out of the larger quantity.. The effect of a known usage on such a transaction is settled in Steel Works v. Dewey, Vance & Co. 37 Ohio St. 242. In that case, Dewey, Vance & Company had a contract for large quantity of ore belonging to the Iron Mountain Company to be taken from a larger quantity, lying on the bank of the river. They sold part of the ore So situated to the Steel Works and gave the purchaser an order on the Iron Mountain Company for the same, which was presented and accepted. By the terms of the contract, and by the usage of the business, purchasers were to take away their ore by boats during the year or the order would be cancelled. Ow ing to ice and other causes. the ore was not taken away by the Steel Works during the year though it was there for them in mass with the larger lot. It was held, that as between Dewey, Vance & Co. and the Steel Works, and in view of the usage, the sale was completed and the rights to the ore vested in the Steel Works without any separation from the larger mass. We think this case is decisive of the one at bar. This was on May first. The order was not presented to the warehouseman until May twentyfirst, when Woods, as assignee of Gordon's interest received from McGee three hundred barels, and Sidwell received three hundred barrels and in each case McGee took a receipt for the amount from the respective parties. Wood sued for three hundred barrels delivered to Sidwell on the ground that he had purchased the same of Sidwell, prior to said delivery, through his agent Gordon. Of this sale McGee had no notice, and it appears that Sidwell, at the time he received the flour, presented the original order, with the assignment thereon by Hutton to himself and Gordon, and with the assignment of Gordon only of his interest to Woods. Looking, therefore, to the order, one half this flour belonged to Sidwell, when delivered to him, and the warehouseman who delivered the same to him in good faith, could not, on any principle of justice, be charged in trover in favor of an unknown purchaser, when he had strictly complied with the terms of the order showing the right in Sidwell. The distinction between that case, and the one at bar, is so manifest that even conceding the correctness of the principles stated by the learned judge independent of any usage on the subject and it is unnecessary to question them, they do not control in this case. 1. There, the question was considered, unaffected by any usage, in the light of which the parties acted. 2. In that case, the order was never presented by the holders and accepted by the warehouseman as in this; nor does it appear that he knew of its existence, or of the assignments endorsed thereon until the day, when all the flour was delivered, one half to each assignee as directed by the order. So far, therefore as the acceptance of the order by the warehouseman affects the question of ownership, as between seller and buyer the cases are unlike. Wood v. McGee, 7 Ohio, pt. 2 p. 128, (469) is relied on to sustain the court below, and but for the effect of the known usage the language of Judge Grimke sustains this claim. An examination of the facts of that case will show, 3. The flour varied in price, and, therefore, that while the judgment is right, yet it not ne- in marketable quality, and in all such cases, cessarily depend upon the principle discussed there is to be a selection before the title passes. and declared by the learned judge. That was This opinion might be extended and pertrover by Woods against McGee, a warehouse-haps made more interesting by an analysis of man, for the wrongful conversion of three hundred barrels of flour, which he claimed to own. The facts were these: Swearinger owned fifteen hundred barrels of flour, varying in value from twenty-five to fifty cents per barrel, which was stored with McGee; a warehouseman. Out of this lot Swearinger sold to Hutton six hundred barrels and on the twentythird of April gave him an order on McGee for the same. On the same day Hutton assigned the order to Gordon and Sidwell. Seven days thereafter Gordon assigned to plaintiff Woods, all his interest in the order and purchase. With the numerous cases on the subject both an- Rend, 14 Allen 376; Kimberly v. Patchin, 19 N. Y. 330; Waldron v. Chase; 37 Maine 414; Chapman v. Shepard, 39 Conn. 413; Whitehouse v. Frost, 12 East. 614; also notes to Heuff v. Hires, 17 and 18 Am. Law Register, pages 17 and 161, in which the whole subject is exhaustively discussed and the cases reviewed. Judgment reversed and cause remanded. [To appear in 38 Ohio St.] DICKSON V. THE STATE. CRIMINAL LAW-EVIDENCE-THREATS-HOMICIDE. (Ohio Supreme Court. April 17, 1883.) 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, there was a conflict in the evidence as to which struck the fatal blow, Held: that 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 gesta. 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. witnesses by proof of inconsistent statements. C. H. Blackburn, W. T. Logan and Dick Ermsten, for plaintiff in error. The fact that a witness in disregard of the order of the court remains in the court-room, while another witness is testifying does not thereby disqualify him as a witness. Ros. Crim. Ev. pp. 134 and 135 and Notes. Ruby v. State, 9 Tex. Appeals 353. People v. Bascovitch, 20 Cal. 436; State v. Brookshire, 2 Ala. 303; 2. Phil. Ev. 5th Am. Ed. 744; 1. Green, Sec. 432. Note 1. p. 482. Whar. Crim. Ev. Sec. 446 and Note 3 and 4. Bish. on Crim. Pro. Vol. 1 Sec. 1188 and 1193. Harris Crim. Law, page 354 and Note, Judge Force; Laughlin v. State, 18. Ohio, p. 99. As to admissibility of uncommunicated threats, Whar. Cr. Pl. and Pr. Sec. 948; Little v. State, Tenn. Sup. Ct. Hor. and T. 487; State v.Goodrich, 19 Vt. 116; State v. Sloan 47 Mo. 604; Kneener v. State, 18 Ga. 194, H. and T. 550; Zeller v. State, 2 Halst 220; Riddle v. Brown 20 Ala. 412; Dupree v. State, 33 Ala. 380; State v. Keene, 50 Mo. 357; Burns v. State 49 Ala. 379; Pitman v. State, 22 Ark. 354; Campbell v. People, 16 Ill. 17 H. and T. 282; State v. Dodson, 4 Oregon 64; Haller v. State, 37 Ind. 57; Cluck v. State, 40 Ind. 263; People v. Arnold, 15 Cal. 476; Com. v. Wilson, 1 Gray 337; Turpin v. State, 2 Crim. Law Mag. 540; People v. Alivtre; 55 Cal. 263. Chandler v. Horne, 2 M. and Rob. 423; Bell v. State 44. Ala. 393; Whar. on Hom. 2nd ed. see 694 and 695; Stokes v. People, 53 N. Y. 164; Collins v. State, 32 Iowa 36; Cornelius v. Com. 15 B. Monr. 539; Rapp v. Com. 14 Monr. 615; Dupree v. State, 23 Ala. 380; Monroe v. State 5 Georgia 85; Howe v. State, Georgia 48; Scoggins v. People, 37 Cal. 677; When a part of the transaction has been given in evidence by one party, the other may 5 Error to the Court of Common Pleas of call out in cross examination, or show by witHamilton County. William Dickson was indicted for murder in the second degree. The charge was that he killed Walter Greaves purposely and maliciously, and the indictment embraced the crime of manslaughter. On the first trial the defendant was convicted of manslaughter, but the verdict was set aside on the ground of newly discovered evidence. On the second trial he was again convicted of manslaughter, and he was sentenced to the penitentiary. The homicide occurred in a saloon in Cincinnati between 7 and 8 o'clock on the evening of Sunday, September 26, 1881. Death. resulted from a blow in the temple with some sharp instrument, and there was conflict in the testimony whether the blow was given by the defendant or his brother George. The questions to be determined relate to separation of witnesses, the admissibility of declarations of the injured party as part of the res gesta, and the practice as to the impeachment of nesses of his own, the whole or any part of the rest. Starkie Ev. p. 89. Crim. Law. Rep. Vol. 1. 241, '52. 625, 1248; Bish. Crim. Pro. Vol. 1. p. 1083 and '87; Bouvier Law Dict. Vol. 2, 467; Whar. Crim. Ev. 262 and 269; 1 Green. Ev. Sec. 108. Our claim here is, that if the threats made by the deceased against the defendant, just previous to the quarrel were inadmissible, and therefore incompetent testimony, because such threats were not communicated to the defendant, they are competent as a part of res gesta Whar. Hom. Sec 695. George K. Nash, Attorney General, and Miller Outcalt, for the State. It was discretionary with the court to receive or exclude the testimony of defendant's sister, who remained in court in disobedience of the order for the separation of witnesses. Laughlin v. Laughlin v. State, 18 Ohio, 99; Whar. Cr. Ev. $446; 30 Mo. 286; 4 Texas App. 645, 8 Ib. 427; 95 Ill. 394; 24 Miss. 602; 52 Ala. 296; 40 Ala |