argument, asked to be heard upon his motion to strike out. The court declined to hear the motion argued, and counsel for the respondent excepted to this ruling. The object of the rule is obvious. It is intended to enable the court, as early as is practicable, to dispose of all preliminary objections to a hearing upon the merits of the cases to be brought before it for consideration; to hear such objections as early as possible for its own convenience, and for the convenience of the appellant, who might be permitted, in case of error or mistake in copying exhibits, or other wise, to correct the same in season for a hearing at the term. The rule requires that the exceptions to the transcript be noted at least one day before the argument, or that they be disregarded. When a case is set for argument, and no exceptions are noted and filed before the day so fixed, we think all exceptions to the transcript should be deemed to be waived. It was with this view of the intention and spirit of the rule cited that we declined to hear the motion of respondent's counsel; and we take occasion to say here that, while we do not wish to encourage any laxity in practice in appeals to this court, we shall avoid, as far as possible, allowing technical objections to stand in the way of a hearing upon the merits of such cases as may come before us. There are obvious reasons why the supreme court of a territory like ours should, by liberal rules, liberally construed, aid litigants to obtain a hearing upon the merits of cases brought before it by appeal. We will now consider the case as presented to us. On the 2d day of July, 1875, a judgment was rendered by the judge of the district court, first district, Pima county, in favor of the plaintiff herein, in an action then pending in said court for forcible entry and detainer, wherein the plaintiff herein was plaintiff, and the defendant herein was defendant. The premises in controversy in that action, and for which judgment of restitution was had in favor of the plaintiff, were three quarter sections of land lying contiguous to each other in Pima county, and known as the "Robledo," "Moreno,' and "Duran" ranches. The plaintiff in this action asks to recover the rents and profits of the premises above mentioned from the 10th of April, 1874, up to the 2d of July, 1875, the period, as is alleged, during which the defendant wrongfully withheld the premises from the plaintiff. Also to recover the value of a quantity of corn and a growing crop alleged to have been upon the premises at the time of the unlawful entry of defendant, and by him converted to his own use; and, among other articles of personal property, two horses and three yoke of oxen, of the alleged value of $250, etc. The defendant in his answer claims ownership of the premises described in the complaint, admits that plaintiff was owner of one-half of the growing crop, denies plaintiff's ownership of the horses and oxen, and alleges that he, the defendant, is the owner thereof. On the trial, the defendant introduced evidence tending to show that certain of the personal property, the oxen and horses, were purchased by him from Anna C. Woffenden, the wife of the plaintiff, and that this property was purchased by her separate means, and was her separate property. Upon cross-examination, plaintiff, in answer to questions touching the purchase of this property, says: "I got that property at home. My wife bought it. She bought it with money belonging to both of us. What is hers is mine. I did not furnish any money directly to pay for it. I did not furnish any money. * * Among other instructions, the court charged the jury as follows: "The title to the ranches is not here in question, nor to be considered by you. Whatever of the other property in controversy was acquired by the plaintiff and his wife subsequent to their marriage is common property, and, as such, subject to the management and disposition of the husband, and the wife had no authority to sell the same, unless you find that she was authorized thereto by her husband as any other agent might be. The presumption of its being common property would be removed if you find that said property was taken in exchange for the separate property of either spouse, or was acquired by gift, bequest, devise, or descent; but such proof must be clear and satisfactory. * You must also find that said property was owned by her before marriage with the plaintiff, or acquired afterwards in the manner above described, in order that she might give a complete title thereto as against her husband; or you must find that she was the authorized agent of the husband to sell the same, etc. The court also gave the following instructions: "If you find that any of the property in controversy is rents, issues, and profits of the separate property of either spouse, it is common property by the laws of this territory, and subject to the management of the husband, with like power of disposition as over his own separate estate, and no marriage contract in derogation of these rights is of any force or effect." The jury rendered a verdict for the plaintiff for $1,000, itemized as follows: For one-half of the crop of 1874, $750; three yoke of oxen valued at $150; one horse valued at $40; and 1,500 pounds of corn valued at $60. Both these instructions were excepted to by counsel for the defendant, and their being given is assigned as error. In the first of these instructions we understand the learned judge to charge to the effect that to constitute separate property in the wife, when the property is obtained after marriage, it must have come to her by gift, bequest, devise, or descent, or it must have been obtained in exchange for her separate property; that she could not sell any portion of her separate property and invest the means derived from such sale in other property, and hold the same as a part of her separate estate, but that such property so purchased would become common property, and subject to the management and disposal of her husband. Both of these instructions are erroneous. The first section of the act of January 22, 1871, entitled "An act relating to the separate property of married women, "reads as follows: "Married wo men of the age of twenty-one years and upwards shall have the sole and exclusive control of their separate property, and may convey and transfer lands or any estate or interest therein vested in or held by them in their own right, and without being joined by the husband in such conveyance, as fully and perfectly as they might be, ît unmarried." The second section repeals all acts and parts of acts so far as they conflict with these provisions. The sole and exclusive control, and the right to convey as if unmarried, given by this statute to the wife, involves the right so to control and convey for her own separate use and benefit; it involves the right in the wife to sell any of her separate property, and to invest the proceeds of such sale in the purchase of other property for her own use; it also involves the right of the wife to the rents and profits of her separate property, and its use by her in the investment of the same as she may choose. To say that the wife shall have the sole and exclusive control of her separate property, and that she may sell and transfer the same as if unmarried, and then to attach to such right the condition that when in controlling such property she receives the rents and profits thereof, such rents and profits shall become common property and under the exclusive management of the husband, and that when she sells and conveys her separate property, the receipts of such sale, or the property in which she invests such receipts, shall become common property, and pass wholly beyond her right to use the same, or her control thereof, is affixing a condition to the right given to her which utterly destroys the right itself. We have no doubt that under this statute the rents and profits of the wife's separate property are as absolutely hers, and as completely under her control, as the property of which they are the fruits; and that she may use such rents and profits, and the proceeds derived from the sale of any of her separate property, in the purchase of other property, and that such property so purchased will remain a part of her separate estate; and we have no doubt that every provision of our statutes in force when this act of 1871 was passed, limiting the rights or powers of the wife as to her separate property by making the rents and profits thereof or the receipts for the sale thereof or the property purchased therewith, common property, to be managed and controlled by the husband, was in conflict with the provisions of this act, and was repealed by the repealing clause thereof. If the instructions under consideration are correct, from the day of the wife's marriage, however ample her separate means may be, she is wholly deprived of their use and enjoyment. She may not gratify her taste by the purchase of a single article for the adornment of her person, nor bestow upon a needy relative, be the same father, mother, brother, or sister, such aid as their needs may require, and such as she may desire to relieve; she may not even of her own fortune provide for the education of her own children, if she have such when married, but must depend wholly upon the will or whim of her husband in the use of means which may have been acquired by her own labor, learning, and skill before her marriage. Practically, this ruling places the wife in the same status in which she stood under the act of 1865 as to her separate property, the only effect given to the act of 1871 being to give the barren right to convey without being joined with the husband, and places the proceeds of her separate property, as well as the rents and profits thereof, wholly in the hands and under the control of the husband. The act of 1865, above referred to, in its first section prescribes that "all property. both real and personal, of the wife, owned by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property.' The second section provides that" all property acquired after marriage by either husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property." The ninth section of the same act takes from the wife all beneficial interest in her separate property by giving to the husband the management and control of the same, and the rents, issues, and profits thereof, making the rents, issues, and profits, common property. It was doubtless the intention of the legislature, by the act of 1871, to get rid of the obnoxious provision in the act of 1865, by which the wife's separate property became, in effect, common property, and subject to the management and control of the husband. The act of 1871 gives to the wife perfect freedom in the control, use, and enjoyment of her separate property, and makes her wholly independent of her husband in regard thereto. We hold further that the act of 1871 adds another method to those provided in the second section of the act of 1865, by which the wife may acquire property after marriage; that the right to the sole and exclusive control of her separate property, and the right to sell and convey the same free from the interference of her husband. involves the right in her, and for her own use, to purchase property with the means she may derive from such sale, or by the investment of the rents and profits of her separate estate. These views accord with the decision of this court at this present term in the case of Charaulean v. Woffenden, 1 Ariz. 243, ante, 652. The instructions as given must be presumed to have influenced the jury in their verdict as to certain of the personal property in controversy. We do not deem it necessary to pass upon other matters occurring at the trial, and assigned as error. The judgment must be reversed, and the cause remanded for a new trial; and it is so ordered. error appears, and that the judgment for that reason should be affirmed. 2. Accepting, however, the unauthenticated statement as true, it appears therefrom that plaintiff had obtained judgment against defendant for forcible entry and detainer of certain premises. He then brought his action for damages consequent and attendant upon said entry and detainer, under Comp. Laws, p. 369, § 24. He alleged $3,600 damages for rents and profits, and $1,890 damages for personal property on.said premises taken by defendant at the time of entry. There are two crops spoken of in the testimony,-the crop of 1874 and the crop of 1875. As to the crop of 1874, defendant admits its value to be as charged in the complaint, but claims he owned one-half of it. The crop of 1875 defendant claims was planted by him during the time he was adjudged to be in unlawful possession of the premises. Defendant undertook to prove the value of the crop of 1875, to show that he had placed articles of value on the premises of which plaintiff got the benefit, and defendant stated that he offered proof on this point as having a bearing on the question of damages. Excluded, wherein appellant assigns error No. 1. We are governed here by the common law, in the absence of statutory provisions. At common law, a trespasser could not prove value of improvements made by him as a set-off to damages for trespass. By statute here, in ejectment, where defendant enters in good faith, under color of title adverse to plaintiff, he may prove value of improvements made by him as a set-off against damages. But there is no provision for doing it as against damages for forcible entry and unlawful detainer. The exclusion was not error. Assignment No. 2 is that the court refused to allow defendant to prove ownership of the premises on which it had been adjudged he had forcibly entered, the value of the crop of 1874, and the animals in contest, in mitigation of damages. It was not error to exclude evidence of title in defendant. Title of the land could not be raised in this action; and concerning the allegation that it was error to exclude evidence of the value of the crop of 1874, there is nothing in the transcript to show that any evidence was offered concerning the value of the crop of 1874; besides, the defendant admitted in his answer the value of the crop of 1874 to be as charged in the complaint. The latter portion of the assignment, that the court excluded evidence of the value of the animals in question, is not warranted even by the unauthenticated statement. The unauthenticated statement shows no such exclusion, but, on the contrary, shows that evidence as to the value of the animals, and all about their purchase, and that of other property and its value, was admitted, without objection. Assignment No. 3 was for refusal to permit defendant to ask a certain question at a certain time. Even if that were error, the unauthenticated statement shows it was cured by allowing the same question to be asked later in the examination of the same witness. The fourth assignment of error is a duplication of assignment No. 2,-that the court excluded evidence of title to the land, and is answered in the remarks on that assignment. The assignments from 5 to 15 inclusive are for error in instructions. The only one of these instructions about which I understand there is serious contest is No. 10, instructing the jury that the rents, issues, and profits of the separate property of either spouse are common property, under the law of this territory. It is argued that the adjudications of the supreme court of California are against the doctrine of this instruction. Section 9, p. 307, of our Compiled Laws, declares, in express terms, that the rents and profits of the separate property of either spouse are common property. Our law on this subject is taken from the California law. Section 9 in the California law is the same as our section 9. In 1860 the supreme court of California construed section 9. We adopted section 9 in 1865, presumptively with notice of the construction given to it in California. The supreme court of California held that section 9 of the California law was inoperative in its declaration that the rents and profits of the wife's separate property should be common property. But why? Because it was, as they say, in conflict with the constitution of California. and that the legislature had not the power to modify the law of the constitution; that the constitution gave to the wife separate property; that at common law a right to separate property gave the right to the rents and profits thereof as separate property also; and that the legislature had no power to say it should be otherwise. But in this territory the matter is not governed by constitutional provision; all the rights the wife has are fixed by the legislature. Our legislature has power to say the wife shall have no separate estate at all. It has power to say just what estate she may have is separate property. They have said that she shall have what the court in California calls a "reversionary interest;" one which, the court continues, can "be of no avail to her, except in the contingency of her surviving her husband." The court speaks of it as "a barren right." But is it such a great anomaly to allow the head of the family to control the usufruct of his wife's property, and dispose of it for the maintenance and care of the family, the support and education of the children, and to have some enjoyment of it also himself, perhaps, while the property itself is put safely beyond his control? He cannot divest the wife of the property owned by her; that is secured for her children, if she so desire. Is there anything against public policy or contra bonos mores in such a law? Have not the legislature of Arizona power to make such a law if they like? If they choose to adopt one feature of the law of California recognizing separate property in the wife, have they no power to say that certain conclusions drawn therefrom by the courts of California shall not obtain in Arizona? Five years after that decision was rendered in California, declaring that rents and profits followed the separate estate, I and were separate property in that state, the legislature of Arizona deliberately declared that in Arizona the rents and profits should be common property. What is to hinder their doing so? There is no parity in the legislation on the subject. In Arizona, it is all the act of the legislature. In California, the law is partly statutory and partly constitutional, and of course nothing in the statute may contravene the constitution: But make the cases similar: Suppose that section 14, art. 11, of the California constitution, were followed by a section declaring that, though certain property should be the separate estate of the wife, the rents and profits of that estate should be common property, would not the courts give force to both sections? Necessarily they would, because both sections would then be of equal authority, and would be capable of standing together. So they are in this territory. The statutes are all of equal authority, are all in pari materia, must all be taken together, and force given to all. There is a fourth objection, that the verdict is contrary to the evidence. There was no motion for a new trial. Such an objection is available only on motion for a new trial, so as to give the court an opportunity to submit the case to another jury. The objection cannot properly be considered here. But, nevertheless, what is the objection? The only controverted facts on which the jury gave a verdict were as to the ownership of three oxen and one horse. The only evidence as to the ownership of this property was that of the plaintiff, from whose wife defendant claimed to have bought this property. He said, in substance: "My wife did not own any of this property before marriage. It was all acquired since. My wife bought it with money belonging to both of us. What is hers is mine. I did not furnish any money directly to pay for it. I did not furnish any money." Plaintiff showed he had used these animals in putting in his crop. On this evidence, in substance, the jury by their verdict practically declared that this was common property. Even if it should be conceded that this was against the evidence, what power did the court below have to correct it? The court was bound to receive the verdict. The defendant did not ask for a new trial. The court was, therefore, compelled to enter judgment. The defendant cannot now raise any objection to the verdict on ground. He had his day in court on that point, and allowed it to go without objection. that The last objection urged is that the verdict is excessive, and ought to be reduced. Plaintiff was entitled to the value of the rents and profits of the premises. He gave evidence that the use of the premises was worth $1,500 for the time they were withheld. The defendant admirted that plaintiff owned one-half of the crop of 1874, and that that one-half was worth $750, and owned corn worth $60, making $810. That was all the jury gave him except $190 for three yoke of oxen and one horse. I do not think the verdict was excessive, particularly when in an action like this the law says the damages may be trebled. The damages were not trebled in this case, nor raised in any amount beyond that awarded by the jury, and no motion was made for a new trial on the ground that the damages given were excessive. I am, therefore, of opinion that the judgment should be affirmed. (1 Ariz. 328) WOFFENDEN v. WOFFENDEN.1. A decree entered after issue joined, and reciting that the case came on for final hearing on bill, answer, and argument of counsel, and decreeing that the injunction theretofore issued be made perpetual, "or until the further order of this court," is final, and, in the absence of mistake or surprise, cannot be opened after the expiration of the term at which it was rendered. Appeal from district court, Pima county. Titus & Hughes, for appellant. Farley & l'omroy, for respondent. PORTER, J. This case arose upon a complaint in the nature of a bill of equity by the plaintiff, a married woman, to enjoin the defendant, her husband, from interiering with her separate property, or with the "rents, issues, and profits thereof." The complaint is as follows: "Complaint. Anna C. Woffenden, plaintiff, v. Richard Woffenden, defendant. Anna C. Woffenden, the above-named plaintiff, complains of Richard Woffenden, the above-named defendant, and alleges: (1) That defendant and plaintiff are husband and wife; that they had intermarried at Tucson, in the county of Pima, territory of Arizona, on or about the day of————, A. D. 1872, and ever since have been, and are now, husband and wife. (2) Plaintiff further alleges that she is of the age of twenty-one years and over. (3) That on the 13th day of August, 1873, for the purpose of preventing difficulties and misunderstandings arising between them, articles of agreement were entered into, made, and signed by said defendant and this plaintiff, a copy of which articles of agree. ment, marked Exhibit A,' is hereunto annexed, and prayed to be made a part of this complaint; that by said articles of agreement said defendant covenanted, promised, and agreed to and with the said plaintiff that he, the said defendant, would not in any manner seek to control or derive any benefit from the separate property of plaintiff, nor from the rents, issues, and profits of said property. Plaintiff further alleges that on the 7th day of October, 1873, the said defendant, in violation of his aforesaid covenant, promises, and agreements, and in violation of the legal rights of said plaintiff over her separate property, served notices upon the tenants of said plaintiff to pay the rents due and owing on the separate property of plaintiff to said defendant. Wherefore the plaintiff demands judgment (1) that the said defendant be enjoined from exercising any control or authority (4) 1 This case, filed January, 1876, is now published by request, with others, in order that the Pacific Reporter may cover all cases in the Arizona Reports from volume 1, p. 1. over the separate property of said plaintiff, or the rents, issues, and profits thereof; (2) for the costs of this suit." The contract referred to is as follows: "This indenture made and entered into this 13th day of August, in the year of our Lord one thousand eight hundred and seventy-three, between Richard Woffenden and Anna Charauleau Woffenden, his wife, both of the village of Tucson, in the county of Pima, and territory of Arizona, in consideration of the mutual promise and agreement of the said parties made to each other before marriage, and to prevent difficulties and misunderstandings arising between them in the future, witnesseth That, in consideration of the premises and of the covenants, promises, and agreements hereinafter contained of the said Anna C. Woffenden, the said Richard Woffenden does hereby covenant, promise, and agree to and with his said wife, Anna C. Woffenden, that, while the said parties shall live together as man and wife, the said Richard Woffenden will, from his own separate property and means, pay and defray all the household expenses, of every class and description, necessary to the comfortable maintenance of himself and his wife, the said Anna C. Woffenden; those hereinafter expressly provided for by the said Anna C. Woffenden. And the said Richard Woffenden further covenants, promises, and agrees to and with the said Anna C. Woffenden, his wife, that he will not in any manner seek to control or to derive any benefit from the separate property of his wife, the said Anna C. Woffenden, nor from the rents, issues, and profits of the said property, and that he will pay and defray all his private and individual expenses, including his own clothing, etc., from his own separate property and means. And, in consideration of the premises and the covenants, promises, and agreements hereinbefore contained of the said Richard Woffenden, the said Anna C. Woffenden, wife of the said Richard Woffenden, does hereby covenant, promise, and agree to and with the said Richard Woffenden that she, the said Anna C. Woffenden, will, from her own separate property and means, pay and defray all expenses incurred by her in keeping and maintaining one or more horses, with the carriage or other vehicle used with the same, and will also pay and defray from her own separate property and means all her own individual and private expenses, including her own clothing, etc., and that she will not in any manner seek to control or to derive any benefit from the separate property of her husband, the said Richard Woffenden, nor from the rents, issues, and profits of the said property. In witness whereof, the parties to these presents have hereunto, and to another of like tenor and date, set their hands and seals the day and year first above written. RICHARD WOFFENDEN. [Seal.] ANNA C. WOFFENDEN. [Seal.] Signed, sealed, and delivered in presence of Upon which the judge at chambers directed this order: "This complaint will be heard on Monday, the seventeenth in stant, at ten A. M. of that day, on not less than four days' notice to the defendant, and in the mean time the property and interest of the plaintiff not to be in any manner or degree prejudiced or interfered with by the defendant. November 10, 1873. JOHN TITUS, Judge, etc. Filed November 10, 1873. O. BUCKALEW, Clerk. By S. W. CARPENTER, Deputy." And, upon hearing, the following order for injunction was entered: "Order for Injunction. Anna C. Woffenden, Plaintiff, v. Richard Woffenden, Defendant. To Richard Woffenden: (1) The above-named plaintiff having commenced an action in the district court of the first judicial district of the territory of Arizona, in and for the county of Pima, against the abovenamed defendant, and having prayed for an injunction against said defendant, requiring him to refrain from certain acts in said complaint, and hereinafter more particularly mentioned, (2) it is therefore ordered by me, the judge of the said district court of the first judicial district, that, until further order in the premises, you, the said Richard Woffenden, and all your counselors, solicitors, and agents, and all others acting in aid and assistance of you, and each and every one of you, do absolutely desist and refrain from exercising or attempting to exercise any control or authority whatever over the property, both real and personal, or any part thereof, in the possession of and owned by the said Anna C. Woffenden at the time of her marriage, together with all such property, both real and personal, which the said Anna C. Woffenden has acquired since her said marriage, or the rents, issues, and profits thereof. November 18, 1873. JOHN TITUS, Judge, etc. Indorsed: Filed, November 18, 1873. O. BUCKALEW, Clerk. By S. W. CARPENTER, Deputy. An answer was filed in the case November 28, 1873, as follows: "Answer. Anna C. Woffenden, Plaintiff, v. Richard Woffenden, Defendant. The defendant answers to the complaint. (1) And for a first defense denies-First, that he did agree with the plaintiff as alleged, or at all; second, that he has in any way interfered or attempted to control the separate property of said paintiff. (2) And for a further and separate answer and defense alleges-First, that the articles of agreement between plaintiff and defendant, referred to in the complaint, were signed by the defendant without the defendant's knowledge of the contents thereof, and with the full and explicit understanding with plaintiff's counsel that the same was void, and did not affect or abridge any of the material rights of the said defendant; second, that the plaintiff has not performed the conditions of the said articles of agreement, but, on the contrary, has wholly omitted in defraying the expense of keeping and maintaining one or more horses, with the carriage or vehicle, as set forth in said articles of agreement, and has acted towards him, the said defendant, in such a manner as to foment strife, and encourage difficulties and misunderstandings between plaintiff and defendant as man and wife. Wherefore the defendant |