so covering up the loan as to conceal the real character of the transaction, the engagement or obligation was void as against public policy. As respects this objection, whatever might be the effect of the transaction, if the person from whom the money had been procured were seeking to enforce the provisions of the agreement,with which point we are not now concerned,the relation of the defendants in error to the transaction, or to the form of the security to be given for the money borrowed, was not such, in our judgment, as to defeat their right to compensation for the services rendered, or the money advanced. They were constituted agents to procure a loan, upon terms prescribed by the plaintiff and her husband. The written request to procure the same explicitly defined the form of the security the defendants were directed to adopt. It was in pursuance of these directions that the services were rendered and the money paid for the examination of the title to the property, which was to be pledged as security for the debt. The agreement by the defendants was fully executed, and the services rendered were performed in good faith. To refuse them redress, under the circumstances, for the reason stated, would, it seems to us, be applying the doctrine which denies a remedy for the enforcement of contracts contrary to public policy, to a state of facts not justly falling within the operation of the rule. The services they performed were distinctive in their character and perfectly lawful; and, had the transaction been executed throughout in the mode contemplated by the parties, as respects the form of the security to be taken, it would, in fact and legal effect, have been but a loan secured by what in equity would have been regarded as a mortgage only, and the investment, without doubt, have been as much the subject of taxation under the statute relating to that subject, as if a mortgage pure and simple had been taken.

Where the transaction, within the understanding of the parties, is a loan of money upon security, no form which the transaction may assume can so disguise it, as to change its legal character or effect.

It remains to consider the effect of the coverture of the plaintiff upon the obligation she assumed, and upon the right to give a personal judgment against her. The facts are briefly these. Being the owner of a separate estate, which was heavily encumbered by mortgage, she engaged the defendants in error, her husband joining, to secure for her a loan of $10,000 to enable her to remove the mortgage from her estate. She agreed to pay an attorney's fee for making an examination of her title, and a commission of $100 to the defendants for securing the loan. The services stipulated for were fully performed, the defendants paying $50 from their own funds to the attorney making the abstract of title. The plaintiff refused to accept the loan, or to pay for the services rendered in procuring it. We have no hesitancy in pronouncing the agreement made, to be one, not only

having direct reference to Mrs. Patrick's separate estate, but made for its benefit. The object was to remove an existing incumbrance upon the property, and it was to accomplish this object that the services of the defendants were engaged. The fact that the loan was to be secured by a new mortgage upon the same property, affects the question but very little. She was to get rid of a mortgage debt then due and pressing, by substituting another therefor, to become due ten years thereafter.

Whether the separate estate would in fact be benefited by exchanging one mortgage for another, is not the test of liability. A married woman, to the extent of her power of disposition over her separate estate, may charge it with such engagement as she sees fit to make. If subjected to no imposition, a fact always to be determined in view of the relation she sustains to the parties to the transaction, in connection with its nature and subject-matter, she may charge the property to the extent she might bind herself at law, were she sui juris, unless in so doing she exceeds some limitation upon her power of disposition. Pollock on Contracts, 73. And that there is now no limitation upon her power to bind her estate to the discharge of liabilities created on account thereof, where the estate is acquired under the statute, will be shown hereafter.

The question now is, whether an intention upon the part of Mrs. Patrick, to charge her separate estate with payment for the services rendered, and money paid by defendants, for the benefit of such estate, will be implied from the character of the transaction and the nature of the engagement entered into. The principles announced in previous adjudications of this court require an affirmative answer to this question.

In Graves v. Phillips, 20 Ohio St. 371, it ap peared that Mrs. Graves, owning a separate estate, had purchased a piano, and given her note therefor, and that the same was purchased for her separate use, and as her separate property. The court held that an intention to charge her separate estate with the payment of the note might be inferred from its execution. In Avery v. Van Sickle, 35 Ohio St. 270, it was held that where a married woman acquires the title to property by purchase, which by force of the statute becomes her separate estate, and executes a promissory note therefor, an implication arises, in the absence of proof showing a different understanding, that she thereby intended to charge her separate estate with its payment. And the circumstances that upon sale of the property so purchased, in proceedings in foreclosure, the proceeds were exhausted in the payment of prior liens thereon, did not effect the creditor's right to payment of the note out of the, residue of her estate. So also, in Williams v. Urmston, 35 Ohio St. 296, we held that where a married woman, having a separate estate, executes a promissory note as surety for another, a presumption arises that she thereby intended to

charge such estate with its payment. The principle of the first two cases is clearly applicable to the present. The liability, in each, was incurred not only on account, but for the direct benefit, of the estate, and was therefore held to be a just charge upon it. "The test of liability," says Mr. Pollock," would seem on principle to be, whether the transaction out of which the demand arises had reference to, or was for the benefit of the separate estate." Pollock on Contracts, 75.

Cases that deny the liability of the estate, where the wife becomes a surety, and does not expressly charge her estate with the payment of the debt, admit the liability where the engagement either has reference to the estate, or is for its benefit. Yale v. Dederer, 22 N. Y. 450; Ballin, Dillage. 37 N. Y. 35; Manhatten B. & M. Co. v. Thompson, 58 N. Y. 81; Williard v. Eastham, 15 Gray 328.

It was said, in a late English case, by Lord Justice James, that "it would be very inconvenient that a married woman, with a large separate property, should not be able to employ a solicitor, or a surveyor, or a builder or tradesman, or hire laborers or servants, and very unjust, if she did, that they should have no remedy against such separate property." London Chartered Bank of Australia v. Lem priere, 4 P. C. (Law R.) 595.

Holding the separate estate of Mrs. Patrick liable to the defendants' demand, we are also of the opinion that a personal judgment against her was proper. Her obligation is one upon which, were she sole, she would be liable at law. It is a contract or obligation upon which, under section 28 of the Code, as amended March 30, 1874, she might have been sued alone; and being of that character, the statute requires the like judgment to be rendered and enforced, in all respects, as if she were unmarried. 71 Ohio Laws, 47. It was one of the objects of this section, as thus amended, to so far modify the disabilities of covertur, as to autho ze a personal juagment to be rendered against a married woman, where such judgment would have been proper, had she remained unmarried.

This provision, as amended, wrought a radical change in the remedy as respects the character of the judgment to be rendered, as did the amendment of April 18, 1870, as to the extent of the property that might be reached to discharge the liability. Prior to the date at which a personal judgment was authorized, the decree, according to the English practice, and that of some of the states, was directed against the estate, declaring the separate estate vested in the wife at the date of the decree which it was within her power to dispose of, chargeable with the payment of the debt. Picard v. Hine, L. R., 5 Ch. App. 274; Davies v. Jenkins. L. R., 6 Ch. D. 730; Collett v. Dickenson, L. R. 11 Ch D. 687; Johnson v. Gallager, 3 De Gex, F. & J. 520; Armstrong v. Ross, 20 N. J. Eq. 109; see Toda v. Lee, 15 Wis. 365.

As there was no personal liability, no personal

judgment could be awarded, and the decree only reached property which it was within the wife's power to bind But under the statute as amended, the same judgment is required, with the same process for its enforcement as would be awarded if the wife were sole; and, saving to her such exemptions as are provided for heads of families, her separate estate is made liable for any judgment rendered against her, to the same extent as would be the property or estate of her husband, for any judgment rendered against him. This subjects all her separate property and estate acquired or held under the act of 1861, and its amendments, with the exception named, to the payment of the debts chargeable upon it; and also all separate estate otherwise acquired, unless restrictions are laid on her power to charge the same by the instrument creating the estate. Before the amendment of 1870 it is doubtful whether the creditor could have reached more than the personal estate of the wife, with the rents and profits of her real estate arising upon a lease for the term for which the wife could have leased the same without the consent of the husband. But now the creditors are substantially let in upon the whole estate, and where there are no liens to adjust, and the wife holds the legal title to the property constituting her separate estate-in other words, where there are no equitable circumstances calling for the exercise of the equity power of the court-a personal judgment, to be collected by execution, would seem not only an appropriate remedy, but to be clearly authorized by the statute. The Married Woman's Property Act of England, of 1870, provided that "a husband shall not, by reason of any marriage which shall take place after this act shall come into operation, be liable for the debts of his wife contracted before marriage, but the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy, such debts, as if she had continued unmarried." In giving construction to this provision in Exp. Holland, L. R., 9 Ch. App. 307, Lord Cairns said: "I think the meaning of the section is, that although the husband is not liable for the debts in question, the separate property of the wife is to be liable, and that for the purpose of reaching it she is to be subject to the ordinary process of law and equity." Section 28 of the Code, as amended in 1874, gives the same process, resort being had to the one that is appropriate to the case.

The objection that it does not sufficiently appear that the plaintiff in error owns a separate estate, is not well founded. The petition alleges, and the fact is not denied, that the contract sued on related to her separate estate, and was made for its benefit. The contract related to no other property than that therein described, to which, it was alleged, she held the legal title. It thus appears that the property to which the agreement

related was held by her for her separate use. Whether she had other property does not appear. Having a separate estate, the whole of it, subject to the exemptions provided for heads of families, was liable for the judgment. Judgment affirmed.

SUPREME COURT OF OHIO

BEAR v. KNOWLES.

1. In proceedings in error, under the civil code, to reverse a judgment, the court must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.

2. The refusal of a court, in which a civil action is pending, to sustain a motion to separately state and number several causes of action which may be united in one petition, is not an error for which the final judgment will be reversed, unless it appears that by such refusal the adverse party has been deprived of a substantial right.

Error to the District Court of Stark County. Hannah Knowles, the plaintiff below, brought her action against the plaintiff in error, to recover for injuries to her person and to her means of support, by reason of the intoxication of her husband, Hiram Knowles, caused by the unlawful sale of liquor to him by defendant below.

The injury to her means of support is alleged to be caused by the intoxication, rendering him unable to perform his usual labor, whereby she was deprived of food, fuel, clothing, &c.

The injury to her person arose from his beating and ill-treating her while so intoxicated.

The defendant moved the court to compel the plaintiff to separately state and number her causes of action; and in argument claims that there are two causes of action; one for injury to her person, and one to her means of support. This motion was overruled and the defendant excepted. He then answered to the merits, denying all the material allegations of the petition, except that she was the wife of Hiram Knowles.

The issue thus joined was tried by a jury, resulting in a verdict for the plaintiff.

To set aside this verdict the defendant filed a motion for a new trial, alleging that there were errors at law occurring at the trial, and that the verdict was contrary to the evidence; but no bill of exceptions was taken on the overruling of this motion.

The court rendered judgment on the verdict, and on error to the district court this judgment

was affirmed.

To reverse this judgment this action is brought. S Meyer & Son and J. J. Parker, for plaintiff

in error.

D. Fording and W. C. Pippitt, for defendant in error.

For the purposes of this, we may assume that the petition states more than one cause of action. On this assumption, these causes should have been separately stated and numbered, and the court of common pleas erred in not sustaining the motion.

Will error lie to reverse the final judgment upon the merits for this assumed error?

We think not. It is true the code requires causes of action, which may be united in one petition, to be separately stated and numbered; but unless it appears that the adverse party has been deprived of some substantial right, by the action of the court, it must be regarded as formal merely, and not prejudicial.

The Code, section 138 (R. S. 5115), requires that "the court in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect."

Here, there was a full trial upon the merits. So far as the record discloses, the plaintiff in error had the benefit of every legal right to which he would have been entitled had his motion been granted. Had he been deprived of any such right, it should have been made to appear by exceptions, made part of the record. If several causes of action, which cannot be joined, are stated in the petition, the vice can be reached by demurrer; but where they may be joined, but are not separately stated and numbered, the defect is a formal one, to be reached by motion, and for which a demurrer will not lie.

That cases may arise in practice where a failure to separately state and number the causes of action may work prejudice, is possible. In such a case, when error does intervene which deprives a party of a substantial right, and that fact is disclosed by the record, error would lie to reverse the judgment.

It does not appear in this case that the plaintiff was deprived of any substantial right by the refusal of the court of common pleas to grant the motion. If it was an error to overrule this motion (and upon that we express no opinion), it is one that must be disregarded by the requirements of section 138 of the Code of Practice.

provision as in ours (§ 140), requiring the causes In the New York Code, there is the same to be separately stated and numbered. In Goldburge v. Utley, 60 N. Y. 427, it was held that this section related simply to a question of practice, over which the court has control; that the right is merely formal, and not substantial; and that an order denying this right is not reviewable on

error.

This is going farther than the case at bar requires us to go. We simply hold that a final

judgment will not be reversed for such an error, unless it appears of record that the refusal to grant the motion affected the substantial rights of the adverse party in a manner prejudicial to him on the merits. We have not undertaken to determine what unlawful sales of intoxicating liquors constitute one, and what several causes of action, which should be separately stated and numbered.

In deciding this case, we have taken the construction of the petition insisted on by plaintiff in error, that there are two causes of action, one for injury to means of support, and one to the person, which should have been separately stated and numbered.

Judgment affirmed.
[To appear in 36 O. S.]

SUPREME COURT OF OHIO

GEORGE H. PORTER

v.

HENRY WAGNER.

1. A judgment of dismissal of a petition for the specific performance of an agreement and of a counter-claim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment;

2. Where a judgment between the parties is relied upon as an estoppel, the question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment.

3. A judgment is conclusive by way of estoppel only as to facts, without the proof or the admission of which it could not have been rendered.

Error to the District Court of Trumbull County. The original action was brought by the plaintiff in error, George H. Porter, against the defendant in error, Henry Wagner. Porter and Wagner had entered into a written agreement whereby the latter agreed to sell and convey to the former certain real estate; and the petition avers that in consideration that the plaintiff, Porter, would release the defendant, Wagner, from the obligations of the contract, the defendant promised the plaintiff and undertook that the said contract should be rescinded, and that he would repay to the plaintiff the sum of $1,000 which he had paid on the contract, and also the sum of $10 taxes paid on the land. Judgment was asked for these sums.

Among other defenses, the defendant set up that the matter in controversy had been adjudicated in a former suit between the parties. This defense was controverted by reply.

On the trial it appeared that Wagner, the vendor, in the former suit, had filed a petition for the specific performance of the agreement for the sale of the real estate; and that Porter in his answer to the petition controverted the right of Wagner to have specific performance of the agreement, and charged him with numerous defaults under the agreement. Porter also charged that in consideration that he would release Wagner from the agreement of purchase, the latter promised to repay the $1,000 paid on the agreement, and $10 taxes paid by Porter.

The defendant prayed "that said contract may be declared rescinded, and the plaintiff ordered to repay said sum of money to respondent, with interest, and for other proper relief."

The answer was controverted by reply.

The following was the decree rendered in that suit:

"This cause came on for trial upon the issues joined and the testimony, and was submitted to the court for decision, and the court thereupon. find that the plaintiff is not entitled to an order for the specific performance of said contract, and the defendant is not entitled to an order for the rescission of said contract, and do therefore order, adjudge and decree that said petition and counterclaim be dismissed, and that plaintiff pay all costs in this cause made before appeal, and that defendant pay all costs made since said appeal, and that execution issue to collect the same."

On the trial of the case now under review, the plaintiff asked the court to charge the jury as to the effect of the decree in the suit for specific performance, in substance, as follows: That the decree did not bar the plaintiff's right of action in this cause, if the jury should otherwise find the issues in favor of the plaintiff.

The court refused so to charge; but charged, in substance, that said decree was a conclusive bar to the right of the plaintiff to recover either on account of said alleged agreement to rescind said contract, or on account of said original contract and the breach thereof, if not rescinded.

To the refusal to charge as asked, and to the charge as given, the plaintiff excepted.

Verdict and judgment were for the defendant. On error, the judgment was affirmed by the district court. The present proceeding is instituted to reverse these judgments.

George M. Tuttle, for plaintiff in error.
H. H. Moses, for defendant in error.
WHITE, J.

The principle upon which the decision of this case turns was determined in Cramer v.

Moore, decided at the present term, OHIO LAW JOURNAL, 502.

The question is not what the court might have decided in the former action between the parties; but what the court did, in fact, decide, as shown by the record. The court found that the plaintiff in that case, Wagner, was not entitled to an order for the specific performance of the contract, and that the defendant, Porter, was not entitled to an order for its rescission; and, as a consequence of these findings, it was adjudged that the petition and the counter-claim each be dismissed.

This left the legal rights of the parties under the contract, as distinguished from their equitable rights, unaffected by the judgment.

The system of pleading under the code does not affect the question. Since the adoption of the code as well as before, the question in each case is, what was adjudicated in the for