
    *Elizabeth Smiley v. John A. Smiley’s Administrator.
    Debts due to a woman are extinguished by her intermarriage with the debtor, and the statute of April 3,1861 (S. & S. 389), does not enable her to recover the same from his estate after the husband’s decease.'
    Motion for leave to file a petition in error.
    The plaintiff was married to John A. Smiley after the taking effect of the act of April 3, 1861 (S. & S. 389), which provides that the “rights in action,” etc., of any married woman, belonging to her at her marriage, shall “be and remain her separate property, and under her sole control.” At the time of her marriage the husband was indebted to her for personal services, and upon his death she brought an action against his administrator to recover the debt. The common pleas and district courts of Ashland county held that she was not entitled to recover, and she now asks leave to file a petition in error to reverse their judgments.
    
      Burns & Dickey, for the motion:
    Prior to the passage of the act of 1861 (S. & S. 389), the husband, by virtue of the marital relation, possessed the absolute right to reduce to possession the choses in action of the wife against her will. Therefore, in cases like the present, where, by the marriage, the husband became incapable to take any active steps further to reduce such choses in action to possession, it was held that the marriage, by operation of-law, operated as such reduction. We understand this to be the principle announced in 7 Ohio St. 30. To decide the case at bar against us, the court must hold that there are some rights belonging to a woman at her marriage, which shall not remain her separate property, and under her sole control. If the legislature intended the exception, why was it not made by express provision ? Power v. Lester, 17 How. Pr. 413, is directly in point.
    
      McCombs & Curtis, contra:
    The debt claimed from the estate of the plaintiff’s deceased hus544] band was extinguished by the marital relation. 1 Ld. *Raym. 515; Cro, Car. 551; 1 Bla. Com. 356, note 40; Reeves’ Dom. Rel. 86, ch. 7; 7 Ohio St. 34; 2 Bla. Com. 434; 2 Rent’s Com. 135; 18 Ohio, 113; Parson’s on Cont. 285; Chitty on Cont. 782; 1 Dana, 69; Co. Lit. 2646 ; 3 Bla. Com. 18; Bishop on Mar. & Div. 38.
    By the act of April 3, 1861 (S. & S. 389), no remedy is provided for the wife to enforce the collection of any debt due from the husband to herself. The legislature certainly did not intend by that act that such a claim, after remaining for perhaps fifty years or more in abeyance, bearing interest, without the means of enforcing payment, should survive to the wife. See Curtis v. Brooks, 37 Barb. 476.
   By the Court.

Leave must be refused. A debt due to a woman is extinguished by her intermarriage with the debtor. The statute of 1861 only operates upon debts of hers not so extinguished, and can not be construed as reviving the debt after her husband’s decease, and enabling her to recover it from his administrator. It. was not intended by the act to create for her new rights, but simply to take away the husband’s control over such as she had.

Leave refused.  