under it;" and, on the refusal of the plaintiff to pay, such was his action. Now, the plaintiff was under no obligation to pay the mortgage. He could do so if he saw fit, but there was no obligation resting upon him to do so. He could proceed for the right of redemption, which the evidence in this case shows was ample from which to secure payment of his claim. The conduct and communications of the plaintiff and his attorneys was a sufficient notification to the sheriff to levy upon and sell the right of redemption. We do not think any such notification was necessary. It was the sheriff's duty, aside from any special instructions, to make effective the writ placed in his hands, and which he undertook to execute. He found certain property in the possession of the debtor, worth $3,000, upon which was a mortgage for $1,500; then followed the notification to the plaintiff to the effect stated; and at last we have a complete abandonment of the plaintiff's process, by reason of which he lost his debt, and we find that the sheriff, according to his own statement, proceeded to levy upon the property by virtue of another writ of attachment, at the suit of some other creditor. Under the circumstances, it is idle to say the sheriff did his duty, and he must make good the debt that through his misconduct was lost to the plaintiff. We do not think there was any intentional neglect of duty on the part of the sheriff, but he seems to have relied too much on the advice of Goldman & Alexander, or paid too much attention to their threats. The judgment is warranted by the undisputed testimony in the case, and is affirmed.

These are some of the findings in which we think the court erred; for instance, the findings that the chattel mortgage is void. There is no testimony whatever in the case upon which to base such a finding. Neither is it necessary to consider what our decision might be in this case had the property been in the possession of the mortgagees at the time the writ of attachment issued, and they were disputing the right of the sheriff to levy at all, instead of simply demanding the payment of the mortgage. These are questions of .no little difficulty, but not necessary to be decided in this cause, and we withhold a decision thereon until the questions are before us. We may add, however, that these difficulties do not spring from the nature of the instrument at all, for a chattel mortgage in this territory is a security merely, and until foreclosure, or some act tantamount thereto, the title to the property mortgaged remains in the mortgagor; but such difficulties arise when a rightful possession of a mortgagee, under a valid mortgage, is interfered with. It may be that the statutes of the territory are broad enough to meet such cases; but, the decisions of the questions not being necessary in disposing of this case, we do not pass upon them.

The judgment is affirmed.

BARNES and PORTER, JJ., concur.

(2 Ariz. 91)

WOFFENDEN v. CHAROULEAU and another.

(Supreme Court of Arizona. January Term, 1886.)

HUSBAND AND WIFE-SEPARATE ESTATE-RENTS AND PROFITS.

Property purchased during coverture by a wife with the rents and profits of her separate estate are not subject to any marital rights of her husband.

F. W. Gregg and H. R. Jeffards, for appellant. Farley & Franklin and Alex. Campbell, for respondent.

BARNES, J. This was an action by the plaintiff against Anna C. Woffenden, his divorced wife, and her co-defendant, in which he seeks to require her to account to him for the rents and profits of her separate real estate during coverture, and asking, also, that he be declared to be the owner of the undivided one-half of the real estate conveyed by her during coverture to her

co-defendant. The plaintiff on the trial offered to prove that all the lands mentioned in the complaint were purchased during coverture by her from the rents, issues, and profits which accrued during coverture, of her separate estate. The court held that the testimony of this witness was irrelevant, and refused to admit the same.

This raises again squarely before this court the question whether the act of 1871, commonly called the "Married Woman's Act," makes the rents, issues, and profits, during coverture, of the separate real estate of a married woman, her separate estate. The case of Miller v. Fisher, 1 Ariz. 232, (decided at the January term, 1875,) is the first case in this court where that act was before the court for construction. That was a suit to enforce a verbal contract of sale by a married woman of certain personal property. The court held that, by virtue of the act of 1871 aforesaid, she was capable of making a valid contract of sale of her separate property. In argument the case goes further than this, but to this extent we reaffirm the decision. The force of this decision leads to the conclusion that she may lease her separate real estate. If she may make a valid contract of lease, she may enforce it by collecting rents, and the rents so collected are her separate property. This question came squarely before the court at the January term, 1876, in the case of Charauleau v. Woffenden, 1 Ariz. 243, and was considered with great care, and it was decided that the rents and profits of the separate estate of a married woman accruing during coverture are her separate estate; and, if she invests such rents and profits in other real property, it is her separate estate. The case seems to have been argued with great ability, and the decision is the mature judgment of this court. In the same term of court, in another case, (Woffenden v. Charauleau, 1 Ariz. 346,) the same question was again considered, and again this court decided that the rents and profits of the separate estate of a married woman accruing during coverture are as absolutely hers as the property of which they are the fruits.

These cases have now for over 10 years stood as the construction of the act of 1871 by the highest tribunal of this territory, and have become a rule of property. Contracts have been entered into, property bought and sold, real estate acquired, and valuable and lasting improvements made, on the faith of these decisions; and to overrule them now would work great confusion to property rights established upon the law as laid down in these cases. If the doctrine of stare decisis might ever be invoked, we think that this is the case. It is true that in an opinion filed October 18, 1885, (Woffenden v. Charauleau, 8 Pac. Rep. 302,) the doctrine of these cases was questioned by this court. The court below decided that rents and profits were separate estate, and that property purchased therewith was separate estate. This ruling the court questioned, but affirmed the judgment on the ground that the defendant was a bona fide purchaser of the real estate sued for. So far as the opinion in that case discusses the question as to the ownership of the rents and profits, and of the property purchased therewith, as between the husband and wife, it is purely obiter dicta, and is no part of the question decided, which was that the defendant obtained a good title from the wife, and affirmed the judgment of the court below. We do not concur with that portion of the opinion in that case. It is time this vexed question were laid at rest. The judgment of the court below is affirmed.

SHIELDS, C. J., and PORTER, J., concur.

(2 Ariz. 82)

WESTERN MIN. Co. v. TOOLE and another, Partners, etc.

(Supreme Court of Arizona. January Term, 1886.)

1. ORDERS-CORPORATE WARRANT FOR FUNDS-ACCEPTANCE.

Where an authorized agent of a company draws on another officer of the company, who has charge of the disbursements of the funds, the instrument may be treated as a bill of exchange or promissory note, at the option of the holder; and, in order to charge the company, no acceptance is necessary.

2. PRINCIPAL AND AGENT-AUTHORITY OF THE AGENT TO BIND PRINCIPAL.

Where an agent who usually passed upon the validity of drafts drawn against his principals, and was conversant with the business of his principals, represented that a certain draft was for a legitimate expense of the firm, and was genuine, the principals are bound by his statements, although the draft prove a forgery.1

Stewart & Herrin, Lewis & Dibble, and W. H. Stillwell, for appellant, Western Min. Co. 0.0. Trautmer and Wm. Herring, for respondents, Toole and another, Partners, etc.

PORTER, J. Paintiff is a corporation, and had a mine at Tombstone, and operated a mill at Contention, about 10 miles distant from its mine. The business at the mine was transacted under the name of "The Western Mining Company," and the business at the mill by the name of the "Contention Mill & Mining Company." Defendants were bankers, who received the deposits of plaintiff, and paid out the same on plaintiff's orders in the ordinary course of business. D. J. Bousfield was in charge of said mill, and transacted the business connected therewith. On the eighth day of August, A. D. 1881, a draft or order, purporting to be drawn by said Bousfield, in words and figures as follows:

"2,737.50.

CONTENTION MILL, August 8, 1881. "Contention Mill & Mining Company: Pay to the order of Charles G. Young, two thousand seven hundred and thirty-seven and 50-100 dollars, for 365 cords of wood, at 74, payable September 5, 1881, and charge the same to mill account. D. J. BOUSFIELD.

"To J. H. White, Esqr., Supt. Contention Mine, Tombstone, A. T.”

-Was presented to defendants at their banking-house at Tombstone, by one Howard Robinson, at that time in the employment of plaintiff, and defendants were requested by said Robinson to discount the same. It was admitted by plaintiff that said draft was in usual form of drafts drawn by the superintendent of the mill on the superintendent of the mine. J. H. White was said superintendent. Such like drafts had from time to time, in the usual course of business between plaintiff and defendant, been cashed and discounted by defendant, and ratified by plaintiff in its settlement with defendants.

At the time of the presentation of the draft said White was absent from the territory, and Mr. A. P. Wade was the book-keeper for the Contention mine. Mr. M. B. Clark, the general manager of the bank, testified that on said eighth day of August, 1881, Mr. William B. Murray came into the bank with Mr. Robinson, and introduced him, saying, "This is Mr. Robinson, the book-keeper at the Contention mill;" that at first he declined to discount it, as he only cashed such drafts for regular customers; that afterwards Robinson returned with Mr. Wade. He said to Wade, "This draft is for an unusually large amount," and wished to know if it was all right. Wade replied: "Oh, yes; that is all right. We will pay it on the fifth. I will give you a check now, but I don't wish to run my account low The mine may need more money, and I do not wish to be obliged to draw a draft on San Francisco." Witness further said to Mr. Wade: "Do you know that this

1 See note at end of case.

wood is all right?" Witness said: "Do you know the payee? I think it was Young." He said: "Oh, yes; it is all right. That is Bousfield's signature. Don't you know it? This is all right. This man is one of our employes. I would pay it now, but I am short, and if you cash it for him, make your discount as low as you can." Defendant then cashed the draft. Wade says he told the manager the signature was Bousfield's, but could not have said it was all right. After the reception of the money, Wade and Robinson counted the money. Several days after Mr. White came into the bank: asked to see what drafts the bank had drawn, from the mill on the mine, which were shown him, and he pronounced the draft in question to be a forgery. The draft on its maturity was presented at the mine, and was not paid. Then the bank charged the amount to the account of the mine.

This action was brought for the sum of $1,641.32, for money had and received; and, by way of counter-claim, defendants set up payment of said draft, and asked for judgment for $1,096.18, over and above the sum sued for, with interest, etc., and obtained judgment for $1,250.97, principal, and interest, etc., on said judgment. The case comes here on appeal from the judgment, and from order denying plaintiff's motion for a new trial.

The first contention of plaintiff is that there was no acceptance of said draft by plaintiff. We do not deem it necessary in this character of case. We adopt the language of brief of respondents: "Bousfield was in charge of the mill, and authorized to purchase fuel and other supplies for the use of the mill; and by such sale, and the purchase by Bousfield, the liability of the company was created. The office of the order was merely to inform the corporation of the indebtedness, and what it was incurred for, and to designate the person to whom it was paid. The purchase was made by the corporation through Bousfield as its agent. No liability to parties selling wood accrued against Bousfield, nor was he personally liable as the drawer of the draft or order, his agency being known." Hicks v. Hinde, 9 Barb. 528. See, also, Mobly v. Clark, 23 Barb. 390; Hasey v. White Pigeon Beet Sugar Co., 1 Doug. (Mich.) 193. The corporation was therefore liable without acceptance.

In Dennis v. Table Mt. Water Co., 10 Cal. 370, where the draft was drawn by the president and secretary upon the treasurer, the court says: "The draft is only an order of the company upon itself, from its head and secretary upon its treasurer, and it is well settled that in such cases no notice of presentation and non-payment is necessary; and where a duly-authorized agent, or officer of an incorporated company, draws in behalf of the company upon the treasurer, cashier, or other oflicer of the company, who has the custody of, and is charged with the duty of disbursing, the company's funds, this is, in substance, it should seem, a draft by the company upon itself, and may be treated either as a bill of exchange or a promissory note; and it may be laid down as a general rule that whenever it was intended as a bill of exchange, or a promissory note, and it possesses the requisites of each, it may be treated as either, at the option of the holder. 1 Pars. Bills & Notes, 163.

But, say appellants, this argument will not apply, because it is admitted this draft is a forgery. The foregoing is an answer to their argument that an acceptance was necessary to bind the company. The fact of Bousfield's employment, and giving drafts for wood, etc., coupled with the fact that Wade, another employe, informed defendants that the wood was furnished, goes far to show the particularity which defendant required before discounting the draft, and its desire to guard against all contingencies; and as we hold no acceptance was necessary, its genuineness must be inquired into on its being discounted by the bank, and such inquiry was made of him whose business was to examine into their genuineness, and to pay the same. What more could be asked of any one discounting this draft?

The further contention is made by appellants that Wade had no authority thus to bind the company. Let us see. The testimony is that Mr. White

opened an account in the name of the Western Mining Company, and did the usual course of business of a mine with this bank; drew drafts on San Francisco; checks to pay their debts; until, a month or two after he opened his account, he notified the bank to honor the signature of Joseph H. White, per A. P. Wade. The manager of the bank testifies, in effect, that Mr. Wade took the place of Mr. White. He drew his checks, and paid the debts of the company. In relation to accounts of the mill, the manager says: "Mr. Wade would usually come down before pay-day, to see if we had any mill drafts, to look at them, and see if they were all right; and if they were all right, he would say: I will bring you in a check for this amount.' On several occasions he would come in, and take up the drafts before they came due, and say: I might as well pay you that sum now as to wait till pay-day.' Mr. Wade was the only man we ever saw in connection with these mill drafts. He seemed to be thoroughly posted on them, and careful in taking them, and appeared to be in a position to know whether they were good drafts or not." Under the authority given Wade by White, the latter says: "Wade sometimes paid for the mill supplies. * * * Wade paid some of them, and I paid some of them. I paid most all of them when I was here." Here was Mr. Wade paying and examining the mill accounts, in a position to be cognizant of all the indebt edness of the mill, and, according to the testimony of the bank manager "was in a position to know whether these drafts were good or not. * Was in the habit of coming in and examining them, and passing upon their correctness, and if he did not know anything about what the drafts were given for, he would telephone to the mill. He had a telephone communication with the mill, and had ample opportunities of ascertaining their genuineness."

*

"When the agent acts beyond, or even in direct opposition, to his express authority, but within the scope of his implied authority,-that is, within the apparent authority conferred upon him, or appearing from a prior course of dealing with or on behalf of his principal, or from any other mode of his being held out to the world as appearing to possess the authority,—and the principal is personally innocent of any fraud, the principal cannot acquire and retain any benefit obtained, under such circumstances, from the fraud, representations, or concealments." 2 Pom. Eq. Jur. 399. Wade was not guilty of any designed fraud, but his representations of the genuineness of Bousfield's signature was the injury inflicted upon the bank, and his principal must therefore be answerable. His apparent control over the business of paying these drafts,-of means of knowledge of their correctness; the sanction of the signature,--would make it a great injustice to set up a more nårrow limit to his authority. "The maxim of natural justice here applies with its full force, that he who, without intentional fraud, has enabled any person to do an act which must be injurious to himself, or to another innocent party, shall himself suffer the injury, rather than the innocent party who has placed confidence in him. The maxim is founded in the soundest ethics, and is enforced to a large extent by courts of equity." Field, Corp. 193; Story, Ag.

152.

The judgment and the order denying motion for new trial are affirmed.

SHIELDS, C. J., and BARNES, J., concurred.

NOTE.

In Ruppee v. Edwards, (Mich.) 18 N. W. Rep. 193, the defendant and one St. Arnault were engaged in business together. St. Arnault purchased some articles of the plaintiff to be used in the business, but plaintiff refused to let him have anything more except on an order from the defendant. At St. Arnault's suggestion the plaintiff wrote the following note of inquiry to J. P. Edwards, who was the brother and book-keeper of the defendant, and had charge of his business during his absence: