Instead of doing this themselves, on the 22d of January, 1866, they leased it to the defendants for two years, and in lieu of rent the defendants agreed "to put the tank in perfectly good repair and to leave it in the same condition at the expiration of the lease." All that this would naturally mean, would be at the outside to put a new wooden bottom in, and then it would be as good as it ever was when originally finished for use by the plaintiffs. Repair means to restore to its former condition, not to change either the form or the material. If you are to repair a wooden building you are not to make it brick, stone or iron, but you are to repair wood with wood.

In a suit, therefore, upon this agreement, there would be two questions to be tried: 1st, was there a breach? and 2d, what are the damages sustained by the plaintiffs? The evidence on both sides of course would relate to these two points.

The plaintiffs' theory was that perfectly good repair meant that if this could not be effected except by putting in an iron bottom, the defendants were bound to put in an iron bottom and thus make it a complete iron tank, when the original tank which was the subject of repair was intended by the plaintiffs to have only a wooden bottom, and was so built by them and ready for use, but never tested by the plaintiffs, but believed by them to be entirely fitted for the purpose of storing crude petroleum. The lease was in fact of an iron tank with a wooden bottom.

The leak complained of was of water, not oil, for in such tanks water is pumped in to prevent the leakage of the oil. The ground for alleging a breach of the agreement was the water leakage, and the material point of time in this respect was at the expiration of the lease, when it was to pass into the possession of the plaintiffs.

This

The defendants immediately proceeded, at an expense of about $1,000, to repair the bottom then in the tank. proving insufficient, they employed another experienced tankbuilder, who, at an additional expense of about $2,000, put in at their request an entirely new bottom on top of the first one, and made it as tight and secure as it could be made with a wooden bottom.

The evidence of the declarations of Mr. O'Hara and of his

presence whilst the repairs were going on, as disproving the iron bottom theory and upon the question of damages, was properly admitted, and so also the evidence of the repairs actually made and their expense, was entirely pertinent, not only on the question of any breach of the agreement, but of the damages alleged by the plaintiffs.

Upon examining the charge and the answers to the points assigned for error we do not find any error. The court explained the law and properly left the finding of the facts to the jury.

The counsel for the plaintiffs in error has not given the evidence bearing upon his exceptions and points to enable us to judge of their applicability. To answer some of the points as requested by the plaintiffs would have been positive error, and in others the court were called upon to decide matters of fact, which is the province of the jury.

The error of the plaintiff's contention was that he asked for more than the agreement called for.

Judgment affirmed.

SHARSWOOD, J., dissented as to the admission of O'Hara's declarations, and the answer of the court to the 4th point.

THOMPSON V. NOBLE ET AL.

(3 Pittsburgh, 201. Common Pleas of Erie County, Pa., 1870.)

Suit concerning wife's separate estate. In proceedings for an account of the proceeds of the wife's separate estate the husband can not sue alone without joining his wife in the bill.

Venue. A bill for an account of the produce of an oil well must be filed in the county where the well is situate.

'Oil is a mineral and is included in the act of 1850, relating to tenants in common of minerals, under the general term of "other minerals." The fact that oil was not then known as a product of land does not alter the matter.

The opinion of the court was delivered January 20, 1870, by VINCENT, A. J.

1 Hartwell v. Camman, 3 M. R. 229; see note 8, 10 M. R. 421.

The plaintiff's bill sets forth that he is the husband of Rebecca Thompson, and that in her right he comes into court with this complaint. He then further sets forth that the said Rebecca was and is tenant in common with the defend. ants and others, in a tract of land in Venango county, in this State, on which was an oil well, known as the Noble well; that as such tenant in common with the defendants and others to complainant unknown, she was entitled to a large quantity of oil obtained from said well, and by said defendants appropriated to their own use, and praying the said defendants to furnish the complainants an account of the oil procured from said well from 1853 to the date of the filing of this bill, and that they be ordered to pay to the. said Rebecca Thompson the amount of money which is or should be owing to her, for or on account of the portion of said oil belonging to her, etc. It will thus be seen that Rebecca Thompson is throughout the entire petition treated as the owner of the claim in controversy, and of the property out of which it issued, and that she is such owner "by various contracts, conveyances and agreements, good in law."

The 6th section of the act of April 11, 1848, enacts that any species of property, whether real, personal or mixed, which may be owned by, or belong to, any married woman, and whether acquired before or after coverture, shall be used and enjoyed by her as her own separate property.

The bill in this case does not state how or when the interest in the land mentioned was acquired by Mrs. Thompson, but it does state that it was acquired by conveyances, etc., good in law; and as this declaration is made by her husband, we must conclude she has a right to use and enjoy it as her own separate property. In Williams v. Coward, 1 Grant, 21, and in Nutz v. Reutter, 1 Watts, 229, it is decided that the wife can not be joined with the husband in a suit founded on a contract made during coverture, but in neither of these cases did it appear that the property for which suit was brought was the separate estate of the wife. Nor does it appear, in the case before us, that the estate of Mrs. Thompson in this land was acquired during coverture. These cases, then, are inapplicable. Brightly, in his Equity Jurisprudence, Sec. 9, lays it down that in all suits in equity concerning the

property of a married woman she should sue in her own name by her next friend; and in Goodyear v. Rumbaugh, 1 Harris, 480, it is decided that in no case can the husband alone bring suit for an injury done to the separate property of his wife; and to the same effect is Sheidle v. Weishlee, 4 Harris, 134; Cummings' Appeal, 1 Jones, 272; and in many other

cases.

The complainant in this case, in our opinion, has no power to institute these proceedings in his name, nor without joining his wife in the bill.

And we are much in doubt whether it is an amendable defect; for, to bring her into this proceeding now would require the entire structure of the bill to be changed. But, if there was nothing else in the way, we think we would allow an amended bill to be filed in terms. The land out of which the oil in controversy was produced is in Venango county, in this State, and this suit is brought in Erie county; and the defendants allege, in their demurrer, that since the act of April 25, 1850, such a bill or petition as this one can only be exhibited in the county in which the land is situated.

The 24th section of that act (see Purdon's Digest, Tit. Equity, fol. 53) provides that in all cases in which any coal or ore mines or minerals have been, or shall be, held by two or more persons as tenants in common, and coal, iron ore, or other minerals have been or shall be taken from the same, it shall be lawful for any one or more of said tenants in common to apply, by bill or petition in equity, to the court of common pleas of the county in which the lands lie, praying an account, etc.; and it further provides that all the tenants in common shall be made parties to said bill, and also how service of process, or motion, shall be made on such as reside out of the county.

If then, the oil taken from said Noble well is a mineral production, it must arise and be comprehended within the "other minerals," in the act of 1850, and as that act in terms refers to the future as well as the present, the fact that oil was unknown as a product from land when that act was passed, does not in any degree affect its application to oil lands. Without going into a geological or chemical discussion as to the origin and properties of oil, we decide that it is enough mineral in

its character to bring it within the scope of the provisions of the act of 1850. It is called "a mineral" and "a species of mineral," in Kier v. Peterson, 5 Wright, 357. And although the particular character of the product in this report was not under consideration, we must regard it as almost, if not quite, a judicial definition of its character. Even if we were in doubt as to its being a mineral, we think we would be justified in deciding that a free construction of the 24th section of the act of 1850 would embrace it, for that act was manifestly intended to cover all products of land taken from under the surface, and not part of its regular annual produce.

We are, then, of the opinion, that as Mrs. Thompson is a tenant in common of the land, out of which the oil she claims was produced, she must be made a party to the suit, and that the bill must be presented to the Court of Common Pleas of Venango county, in which the lands lie, and that this demurrer of the defendants must be sustained and the bill dismissed at the costs of the plaintiffs, and a decree is ordered to be entered accordingly.

Demurrer sustained and bill dismissed at costs of complainant.

MASON V. NORRIS.

(18 Grant's Chancery, 500. Ontario Court of Chancery, 1871.)

Tenants in common of oil in tank. Plaintiff and L. were tenants in common of an oil well; they filled a tank with oil equal in quantity to 2,400 barrels, of which 1,600 belonged to plaintiff, and 800 to L., and they agreed that the oil was not to be sold under $5 a barrel; they were not partners. L., without authority, contracted for the sale of all the oil in the tank at $1.25 per barrel: Held, on a bill against the purchaser, that L. had no right to sell the plaintiff's portion of the oil; that the defend ant's removal of it would be wrongful; but that as the oil was a staple commodity which had not any peculiar value, and as there wa no fiduciary relation between the plaintiff and L., the plaintiff was not entitled to an injunction, and that his only remedy was an action at law.

This was a motion for an injunction to restrain the defend