
    Frederika Jenz v. John Gugel and Sophia Gugel.
    1. Section 28 of the civil code, as amended March 30, 1874 (71 Ohio L. 47), was not intended to enlarge or vary the liabilities of a married woman, but merely to change the form of remedy.
    2. No recovery can be had against a married woman upon her promissory note, whether executed before or after the date of said amendatory act, unless it appear that she has separate property subject to be charged therewith.
    
      Motion to file a petition in error to the District Court of Hamilton county.
    This was an action upon the promissory note of defendants, payable to the plaintiff, and dated Mayl, 1874. From the pleadings it appears that Sophia Gugel was a married woman, the wife of said John Gugel, at the time she signed the note ; and there is no averment, or evidence to show, that the note concerned her separate estate, or that she had any separate property; nor does it appear that it was a case where the law authorized her to make a contract on her own behalf. The court below held the wife not liable, and rendered a judgment in her favor, giving the-plaintiff a judgment against the husband alone. The District Court, on error, affirmed this ruling, and it is now claimed that it was erroneous.
    
      Moos § Pattison, for the motion :
    On the liability of married women, our law now governs-married and unmarried women alike in Ohio. Sections 1 and 8 of the act of March 23, 1866 (S. & S. 381); section 28 of the code, 67 Ohio L. Ill, as amended March 30,1874; section 2 of the act of March 30, 1871 (68 Ohio L. 48). On their liability, 2 Kent’s Cas. 137-148; 46 Mo. 115 ; lb. 545;. 47 lb. 507; 7 B. Mon. 293; 42 N. Y. 613 ; Addison’s Contracts, 761; Story’s Eq. Jur. par. 1397. See Mr. Belt’s note-to PLulme v. Tenant, 1 Bro. Ch. 20; Sockett v. Wray, 4 Bro. Ch. 485 ;.Nantes v. Corrock, 9 Yes. 189 ; Jones v. Harris, 9 Yes. 496; Stewart v. Lord, Kirkwall, 3 Madd. 387 ; Gardner v. Gardner, 22 Wend. 526 ; Owens v. Dickinson, 1 Craig & Phillips, 48; Francis v. Wizzel, 1 Madd. 258 ; Aylett v. Ash-ton, 1 Myl. & Or. 105, 111; Story’s Eq. Jur. par. 1398; 2 Roper on Husband and Wife, ch. 21, par. 2,pp. 235 to 238; Id. 241, note and cases cited; Story’s_ Eq. Jur. par. 1399, 1400, and 1401; Fullett v. Armstrong, 4 Beav. 319-323;. Peacock v. Monk, 2 Yes. 193 ; Norton v. lurvill, 2 P. Will. 144; Lilia v. Airey, 1 Yes., Jr. 277, 278 ; Mansfield, C. J.,. in Nurse v. Craig, 5 Bos. & Pull. 162, 163; Angelí v. Had-
      
      den, 2 Mer. 163; Stanford v. Marshall, 2 Atk. 68; Master v. Fuller, 4 Bro. Ck. 19; Clancy on Married Women, ch. 9, pp. 331 to 346.
    
      Oliver Brown and Goss If Knell, contra:
    1 Dis. 584; Philips v. Graves, 20 Ohio St. 371; 14 Ohio St. 519; 7 Ohio St. 208.
   By the Court.

It is, perhaps, enough to say that there is no averment or evidence that the wife had any separate property. That is an affirmative fact, to be averred and proved. The fact, however, that the note was signed also by the husband, would seem to be prima fade evidence that it was given on his account, and not on account of the wife or of her estate.

Counsel seem to argue that the 28th section of the code, as amended March 30,1874 (71 Ohio L. 47), gives the right to sue the wife upon such a note. We think otherwise. That section was not intended to enlarge or change the liabilities of the wife, but merely to change the form of remedy.

Motion overruled.  