William Lawrence, for plaintiff:

This case presents two principal questions for decision:

First. Can a married women execute a valid promissory note as surety for a third person without any consideration connected with her sole and separate property?

Second. Can a married women execute a warrant of attorney to confess a judg ment against herself as surety on a promissory note having no connection with her separate property?

The first question is: Can a married woman execute a valid promissory note as surety for a third person without any consideration connected with her sole and separate property? I maintain she cannot.

At common law she cannot make a personal contract. 1 Bishop M. Women, sec. 842; Levi v. Earl, 30 Ohio St., 158; Williams v. Urmston, 35 Ohio St., 296; Jenz v. Geigel, 26 Ohio St., 528; Swasey & Co. v. Autram & Co., 24 Ohio St., 87.

Has this common law rule been changed?

The act of April 14, 1884, vol. 81, p. 209, provides as. to a married woman that "the separate property of the wife shall be under her sole control, and shall not be taken by any process of law for the debts of the husband, or be in any manner conveyed or incumbered by him, and she may, in her own name, during coverture, contract to the same extent, and in the same manner, as if she were unmarried.

If the last clause stood alone a married woman could contract as a feme sole. And so it has been construed by the court of common pleas of Hamilton county, in Dunkham v. Bruce, 16 W. L. B., 291.

But this is not the true construction for several reasons:

I. A statute is not to be construed by its mere words. Qui haeret in litera haeret in cortice. The intention of the legislature as gathered from all proper aids is to control.

II. The power to contract, as given by the statute quoted, only extends to the "separate property of the wife." The subject with which the legislature was dealing in the section quoted was the “separate property of the wife." It is a rule of construction founded on the maxim noscitur a sociis and others of similar import, that "where the meaning of any particular word [or phrase] is doubtful or obscure the intention may frequently be ascertained by looking at the adjoining words, or at expressions occurring in other parts of the same instrument" [statute]. Broom Legal Max., 294; Ruffner v. Hamilton Co., 1 Disney R., 198. The first clause of the section treats of "the separate property of the wife;" this is connected by the copulative "and," with the second clause, which treats of the same subject, and the third and last clause, relating to the powers of the wife, is connected by another copulative "“and,” with all that precede it. Here the maxim applies copulatio verborum indicat acceptationem in eodem sensu. Bac. Works, vol. 4, p. 26. The coupling of phrases together "shows that they are to be understood in the same sense." Broom, 294. They all relate to one subject and they only enlarge the common law powers of the wife so as to authorize her to "contract [in relation to her separate property] to the same extent and in the same manner as if she were unmarried."

III. This conclusion is not defeated by the general form of expression used in the last clause of the section of the statute. This is shown (1) by a maxim of construction; (2) by reference to other sections of the same act; (3) and by reference to other acts.

1. The maxim is verba generalia restringuntur ad habilitatem rei vel personam. "General words shall be aptly restrained according to the subject-matter -or person to which they refer." Broom, 275. And Broom, in making an explanation of the maxim, says:

"Where a particular class [of persons or things] is spoken of, and general words follow, the class first mentioned is to be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis [of the same sort] with such class; the effect of general words when they follow particular words being thus restricted."

The application to the statute in this case is this: The statute first deals with a "particular class of things "-the wife's separate property.

It then exempts it from process of law for the husband's debts. It thentreating of the same class of things-copulates therewith "general words," declaring what the wife may do with the subject-matter, and upon the maxim quoted these “general words" are to be "restricted" to the particular subject-matter.

There is a kindred maxim which leads to the same result-generalia specialibus non derogant. Many cases illustrative of this maxim are cited in Huidekoper's

case (second), 3 Lawrence Comptroller's Decisions, 160, to which reference is made solely for the cases collected therein. These and the construction above given.

2. A reference to other sections of the same act of April 14, 1884, leads to the same result. This act re-enacts and amends section 3111 of the Revised Statutes, which is taken from the act of April 3, 1861, vol. 58 Ohio St., p. 54, sec. 4. This section, as found in the Revised Statutes, provides that the court of common pleas may vest a married woman, whose husband neglects to provide for his family, with the rights, privileges and liabilities of a feme sole as to acquiring, possessing and disposing of property real and personal." The section as amended April 14, 1884, provides that the court may vest her "with the rights, privileges and liabilities of the head of a family, as to the care, custody and control of her minor children, and with all the powers of a feme sole as to disposing of her real property free from the curtesy of her husband."

Now, if section 3109 gave a married woman power, as its general words literally construed say, to "contract to the same extent and in the same manner as if she were unmarried," then she could dispose of her real property without the provision of section 3111, authorizing the court to give her such power. This shows that the legislature did not intend that section 3109 should be construed as giving a general power to contract in all cases, but only in relation to her separate property, and hence as to her separate real estate section 3111 provides a means by which she may in the cases specified sell such real estate. And to avoid all controversy as to this, section 3112 declares that section 3109 shall not affect the general statute providing the mode by which a married woman's realty may be conveyed. And if section 3109 gave a general power to contract there would have been no necessity for the provision in section 3111 for vesting her with the "rights, privileges and liabilities of a head of a family," etc.

The act of March 20, 1884 (81 Stat., 65) was passed prior to the act of April 14, 1884, and has no reference to or effect upon the question now being considered. It permits a married woman to sue without, as at common law, having her husband join with her (1 Chit. Pl. 8 Am. Ed., 29), and without the intervention of a next friend (Laughery v. Laughery, 15 Ohio, 406) in those cases where she has a right of ⚫ action.

So it authorizes a judgment against her when there is a cause of action against her, but it does not define the cases where there may be such causes of action. Its purpose perhaps was to authorize proceedings directly as at law against her, when according to previous rulings she had charged her separate property for debts. Levi v. Earl, 30 Ohio St., 147; Williams v. Urmston, 35 Ohio St., 386. So it will apply in actions on the wife's contracts made in her own name "for labor aud materials for improving, repairing and cultivating her separate estate," as authorized by act of April 3, 1861, as amended March 23, 1866. Levi v. Earl, supra.

IV. The history of the legislation as to married women leads to the result now claimed. The history of legislation is an aid in giving construction to it. See cases cited, Conger's App., 4 Lawrence Comptroller's Decisions, 539.

The act of April 3, 1861 (58 Stat., 54) secured to the wife her separate property "under her sole control." The amendatory act of March 23, 1886 (63 Stat., 47; 2 Sayler, 947-carried into sec. 3108, Rev. Stat.) not only secured the right, but gave the wife a power to contract in relation to her separate property.

"She may in her own name during coverture make contracts for labor and materials, for improving, repairing and cultivating, and also lease the same for any period not exceeding three years."

This gave her a power she did not have at common law; it authorized her to make some contracts, but not all contracts, relating to her separate property. She could not lease for a period longer than "three years." She became liable, as at law, on her own contracts, so authorized. Levi v. Earl, supra. But she could not bind herself personally by any other contract. Jenz v. Geigel, 26 Ohio St., 528. As to all other contracts so far as any remedy thereon at law was concerned, she had no legal existence.

Now, let it be remembered, the act of 1863 carried into section 3108, of the Rev. Stat., combined in one section, several subjects:

(1.) It made her real estate her separate property.

(2.) It gave her power to make some but not all contracts, including leases as to it.

(3.) It exempted such property from legal process for her husband's debts. It was defective; it related to real property only.

The act of March 30, 1871 (68 Stat., 48, carried into the Rev. Stat. as sec. 3109)

made an inadequate effort to remedy the defect.

(1.) It made her personal property, including rights in action, hers.

(2.) It did not, in terms, give her power to make any contracts in relation to this property.

(3.) It exempted it from legal process for the husband's debts.

Now, we have before us these statutes; two sections in the Rev. Stat. of 1884. These were "the old law."

The "mischief" found or supposed to exist in them, consisted of defects to be remedied:

(1.) That a wife could not make all contracts relating to her realty; other than selling and mortgaging.

(2.) That she could not make contracts as to her personalty, including rights in action, assuming, as is too often the case, that such power did not exist, unless a statute so expressly provided.

Accordingly, for the purpose of giving a "remedy" for these defects, the legislature, by act of April 14, 1884 (81 Stat. 209), revised the sections of the Rev. Stat., on this subject, as follows:

(1.) It re-enacted that part of section 3108 which made real estate a wife's separate property, and it put into this same section, that portion of section 319 which made personal property, including rights in action, also separate property; it unified the two sections on this subject, by declaring real and personal property separate property, and it severed this subject from that of (1) liability for husbands and (2) from the matter of power to make contracts.

(2.) The legislature copied from the old section 3108, the provisions exempting the wife's realty from the payment of the husband's debts, and it copied from section 3109, the similar provisions as to the wife's chattel property, and it unified the two old sections on this subject, by putting altogether in a new section, 3100, and then to complete the work of dealing with such separate property, and to give to the wife a power of contracting as to her personal estate as well as her real esstate, and to enlarge the previously given power of contracting, there is added to this section the words:

"And she may [as to her separate property] in her own name, during coverture, contract to the same extent and in the same manner as if she were unmarried."

The result is, that under this act she might lease her realty without limit as to time. The act of April 16, 1885, (82 Stat., 131), again amended section 3108, with a restriction of three years as to leases. Now she may make contracts, not only as under the old law, "for repairing and cultivating her lands and lots," but for the erection of store-rooms where none stood before, and for the erection of bains where none stood before, etc.

V. If there be doubt on the question whether the wife's power, as at law, to contract, is limited to her own separate property, the doubt is to be resolved in favor of limitation. At common law, she has no general power to make con. tracts. The common law is as forcible, live, vigorous law as statute law, and generally much better and wiser law. Where conditions remain unchanged, the common law cannot be abrogated, except by a statute. Courts sometimes indulge in the huge jest that they only declare the law but do not make it! Of course courts know better; they make the common law, by far the largest part of the law. But there is no pretense that there has been any such change in the condition and circumstances of our people, that courts will now give to married women, a sweeping general power to contract as fully as unmarried women.

Then, if there be doubt whether the act of April 14, 1884, has abrogated the common law on this subject, the court must say it has not.

It is said of statute, that repeals by implication are not favored; that is where one statute does not, in express terms, repeal a prior one on the same subject, courts will, if possible, so construe both, as to continue in force, each operative for a purpose peculiar to itself. Broom, Legal Max. 11.

It may be true, that this principle does not technically apply as between a common law rule, and a statute on the same subject; but an equivalent and equally forcible rule of construction does apply generally, that statutes in derogation of the common law, are to be strictly construed, and carried no farther than thei words necessarily require. This is so because as Broom has said: Changes in the law "carry along with them a tacit reflection upon the legislature," [and upon the wisdom of the common law].

VI. The argumentum ab inconvenienti has persuasive weight. Broom says, "in doubtful cases arguments drawn from inconvenience are of great weight." Legal Max. 85. All the books on the construction of statutes say the "effects and consequence" of a particular construction will have weight in ascertaining the in

tention of the legislature where the words are doubtful. Weaver v. Gregg, 6 Ohio St., 547, 551; Terrill v. Auchauer, 14 Ohio St., 80, 87.

A change of the common law is a reflection on the wisdom of the past. Priuciples which have been sanctioned and sanctified by time, which are hoary with age, which have stood the test of human scrutiny of talents and of time" come to us with the highest evidences of their wisdom, and admonish us that very often that which is new is not good, and that which is good is not new. The usages and wisdom of centuries should not be lightly or unadvisedly changed. If marrie women may make all contracts as fully as men serious results may follow. Is it wise to destroy the home life of woman by permitting her to borrow money and embark in speculation? Is it wise that she should become a rival and competitor with her husband in business? Is it wise that she be invited by law to abandon the position which ages have given her in the domestic relations and enter into the fierce contests with which wild speculation afflicts too many of the sterner sex? Nature, humanity, and the civilization of enlightened nations, all revolt at a policy which would unsex woman, and subject her to conflicts alike repulsive to her gentle nature, and finer sensibilities, and which would retard the progress of society in all that refines, elevates and ennobles our race.

Physical, and mental and moral science, prove, that women have a different sphere from men. Statutes cannot unsex either, an attempt thereby to do so is a fraud upon nature, demonstrating that,

"A woman impudent and mannish grown

Is not more loath'd than an effeminate man."

Holy writ protests against every law which attempts to give the wife unlimited power to contract without the husband's consent, and declares that he "may make it void." Num. 30: 13; Gen. 3: 16; 1 Cor. 11: 3; Eph. 5: 22; Col. 3: 18; 1 Tim. 2: 11; 1 Pet. 3: 1; Eph. 5: 21; Tit. 2: 4.

All this is necessary as Paley says "to guard against those competitions which equality, or a contested superiority is almost sure to produce." Mor. Ph. Ch. 8.

In view of all this, and much more, it is not to be assumed, without the clearest, strongest language in a statute to so require, that the Ohio Legislature has undertaken to annihilate nature, nullify science, enact as law, that which is con demned by the Divine Law, by human reason, by the common law which is the "perfection of reason," by the usages and legislation of all past time, and the civilization of every enlightened nation. Courts with their proper and accustomed conservatism, will not seek out of ambiguous language, a pretext for an innovation which would overturn the entire social fabric of a great state, destroy the unity and sanctity of the holy marriage relation, invest it with the attributes of savage life, breed discord, encourage and create antagonisms where now is peace and domestic happiness, and make "heaven's last best gift to man," his worst aud deadliest enemy. This in turn must destroy in the husband the confidence he now reposes in her whom he has vowed to "love and cherish," and thus engendered rivalries and conflicts of interest destructive not only to the best interests of the wife, but to children, home and society. "War, pestilence and famine," with all their horrors and plagues, would be a relief from the evils worse than Sheol, which would result from the anomaly which the court is asked to carve out of the

statute.

If a married woman can "contract to the same extent and in the same manner as if she were unmarried" she may engage her services to Barnum's traveling circus, or for similar wandering exhibitions, thus taking her away from home, and, the society of husband, I know it may be said the common law gives the husband' a right to her society,-a right which he may sometimes enforce by the writ of habeas corpus-and that the statute is to be construed in subordination this marital right. But if the statute is to be construed literally, and so gives the wif a right to make contracts beyond sole and separate property "to the same extent * * as if she were unmarried." thus working a repeal of the common law on this subject, the same process of reasoning which brings this result, will also make the statute work a repeal of common law marital rights of the husband when they cross the path of the wife's contracts.

VI. The sections 4996 and 5319 of the Revised Statutes as amended by act of March 20, 1881-81 Stat. 65-do not recognize or give any power to a married woman to make contracts.

There are cases which support the doctrine that where a statute even by mis take recognizes or assumes the existence of a power it is equivalent to the grant of such power. Some of these cases are cited in Proceeds of Sales' case. 3 Law

rence Comptroller's Decisions, 41; Otto's case Id. 302; Bliss' case, 5 Id. 39. Iɩ may be stated that these cases are not cited as authority, but only as containing a reference to cases which are authority. This remark will apply whenever herein a reference is made to these volumes.

The cases on which the principle stated rests, show that the statutory recognition of a power does not grant it unless a clear legislative purpose is shown by such recognition to give the power.

In order to understand the purpose and meaning of the secs. 4996 and 5319 as revised by act of March 20, 1884, it is necessary to examine the state of the law before they were enacted. The common law recognizes the right of a married woman to have what was called a "separate estate' and a general estate, or as was sometimes said "her separate property" and her "general property."

Thus it was said in Albany Fire Ins. Co. v. Bay, 4 Const. 27 that:

"Separate estates in married women which courts of equity recognize the right to dispose of as femes sole, are strictly equitable estates. They are always created by deed, devise, or marriage settlement. Her power over such property is in the nature of a power of appointment."

The legal title in such estate is held by a trustee. The wife's power over it. depend in a large measure on the terms of the deed, devise, or marriage settle ment creating the estate.

The wife's estate is an equitable estate.

But at common law a married woman could hold "general property" or a general estate. In that she held the legal title whether realty, chattels, or choses in action. This was subject however to the marital rights of the husband, who at common law was entitled to the possession and profits of realty, and who could reduce chattels to his possession and make them his own, and could maintain an action on choses in action and make the money thereon recovered his own. 2 Kent Com. 130-143; Bishop on Married Women, 528.

Courts of equity resorted to various contrivances to secure to married women some rights in their general property. 2 Kent. 140. The tendency of public sentiment has been for a considerable period in favor of securing to the wife a right at law to hold and manage property.

Accordingly in Ohio the acts of February 28, 1846, February 5, 1847, April 3. 1861, and March 23, 1866, made changes in the common law, which as carried into the Revised Statutes (of 1884, 3d ed.), sections 3108, 3109, 3110 and 3111 provide that there shall be and remain her separate property and under her separate control" real and personal property belong to her "at her marriage or which may have come to her during coverture by conveyance, gift, devise or inheritance, or by purchase with her separate means and money," or "due as the wages of her separate labor, or growing out of any violation of her personal rights."

These acts created a statutory separate property, in which the wife holds the legal title without the intervention of a trustee.

These statutes borrowed a phrase from equity jurisprudence-"separate prop erty"-thus creating some confusion in our legal and equitable nomenclature so that now there may be two classes of wife's "separate property"-that known t equity jurisprudence, and that known to the statute, which has made much of tha which at common law was wife's general property now wife's statutory separate property.

The Civil Code Practice Act of March 11, 1853, section 28 provided that a married woman might sue by her next friend and without her husband "when the action concerns her separate property." In other cases it provided that "where a married woman is a party, her husband must be joined with her."

This section was amended by act of March 30, 1874 (4 Sayler, 3222), and again by the act of January 21, 1879. (76 Stat., 3), and carried into the Revised Statutes as secs. 4996 and 5319, as follows:

"Section 4996. A married woman cannot prosecute or defend by next friend, but her husband must be joined with her unless the action concerns her separate property, is upon her written obligation, concerns business in which she is a part ner, is brought to set aside a deed or will or to collect a legacy, or is between her or her husband."

"Section 5319. When a married woman sues or is sued alone, like proceedings shall be had, and judgment may be rendered and enforced as if she were unmarried, and her separate property and estate shall be liable for the judgment against her, but she shall be entitled to the benefit of all exemptions to heads of families."

These sections were amended by the act of March 20, 1884 (81 Stats., 65), which is now in force as follows: