
    Payne v. Thompson.
    
      Husband and wife — Partnership.
    Prior to the legislation of 188é (81 Ohio L. 65,209), a married woman did not possess legal capacity to enter into a copartnership with her husband. (The effect of such legislation upon the legal capacity of married women is not involved in this case and not considered by the court.)
    Error to the Court of Common Pleas of Cuyahoga county, reserved in the District Court. •
    The plaintiffs, Payne, Newton & Co., filed in the .court of common pleas their petition of the following tenor:
    
      “Petition for Money and Equitable Relief, filec[ May 22, 1882. The plaintiffs, N. P. Payne and Isaac Newton, as partners, doing business under the firm name and style of Payne, Newton & Co., by Mix, Noble and White, their attorneys, complain of the defendants, M. T. Thompson and Elizabeth J. Thompson, partners, doing business under the firm name and style of M. T. Thompson & Co., for that:
    “ Plaintiffs are and at all the times hereinafter mentioned were partners, doing business under the firm name and style of Payne, Newton & Go. Defendants are and at all the times hereinafter mentioned were partners, doing business under the firm name and style of M. T. Thompson & Co. At all the times hereinafter mentioned said defendant, Elizabeth J. Thompson, was, and she is now a married woman, wife of said defendant, M. T. Thompson, and was and is the owner of a large estate of real and personal property and choses in action of great value; but the value and description thereof plaintiffs are unable to state more particularly than is hereinafter done, which is under her sole control and exclusive management, and which she owns in fee-simple in her own right, and as her own separate property, from which she receives for her own separate use a large income; but the amount thereof plaintiff is unable to state. Said real estate belonging to said defendant, Elizabeth J. Thompson, is bounded and described as follows-: ”
    (Here follow descriptions of several tracts of land situated in Cuyahoga county.)
    “The husband of said’Elizabeth J. Thompson had not at any of said times, nor has he any property of any kind subject to levy and sale on execution or otherwise for the payment of debts, and at all said times he did and h e does acquiesce in and consent to the acts of management, control and disposition of her said separate property by said Elizabeth J. Thompson. The coal in this petition mentioned was all purchased by said firm of M. T. Thompson & Co., for use in its said business, in the course of its said business, which was that of selling coal by retail, in which business said defendant, Elizabeth J. Thompson, had invested a considerable part of her saidseparate estate, as her separate property, her interest therein and in the profits and losses thereof remaining her separate estate with the knowledge and consent of her husband. At the times of each of the purchases of said coal it was agreed and understood by and between each of the sellers thereof and said defendants, and especially said Elizabeth J. Thompson, that the same was sold upon the credit of her separate property, and that she intended to and did charge her separate estate and income with the payment therefor, and said vendors and each of them sold said coal to said firm of M. T. Thompson & Co., upon the faith and credit of the said Elizabeth J. Thompson, and of her said separate estate and income aud of the said charge and lien thereon, and not otherwise.
    “At all the times hereinafter mentioned the Lake View Coal Company was a corporation duly incorporated and existing under and by virtue of the laws of the state of Ohio. At the several times mentioned in the account hereto attached, marked A, and made part hereof, at request of defendants, said Lake View Coal Company sold and delivered to defendants the coal mentioned in said account at aud for the agreed prices therein stated. Said Lake View Coal Company had sold aud assigned said account to these plaintiffs as such partners as aforesaid, who are now the owners thereof. Nothing has been paid on said account, and there is now due and payable thereon from defendants to plaintiffs as such partners as aforesaid the sum of two’hundred and sixteen dollars and eighty-eight cents ($216.88), with interest thereon from.the 25th day of March, a. d. 1882.”
    Here follow two other supposed causes of action, substantially like the first, each predicated upon an account assigned to plaintiffs by a party who had sold coal to the defendants.
    The petition concludes with the following prayer:
    “ Therefore, plaintiff's as such partners as aforesaid pray judgment against said defendants for the sum of four hundred and eighty ($480.13) dollars and thirteen cents, with interest on three huudred and eighty-nine ($389.80) dollars and eighty cents from the 25th day of March, a. d. 1882, and on ninety ($90.33) dollars and thirty-three cents from the 31st day of March, a. d. 1882 ; that said sum and interest may be declared a lien on said real estate; that said real estate may be subjected to the payment thereof, and for such other and further relief as equity and good conscience and the circumstances of the case may require.”
    
      The copies of the accounts attached as exhibits to the petition are in the following form :
    “ M. T. Thompson & Co., bought of Lake Yiew Coal Co.
    1882. March 8. Car 629, 15,100 tons coal.
    “ “ 3. “ 864,14,300 “ “ etc., etc.”
    Elizabeth J. Thompson demurred to this petition. The demurrer was sustained and judgment rendered for her.
    Judgment was rendered against M. T. Thompson upon-the accounts for the amount claimed.
    To reverse the judgment in favor of Elizabeth error was prosecuted in the district court, wherein the cause was reserved to this court.
    
      Mix, Noble ^ White, for plaintiffs in error.
    A married woman may embark her separate estate in trade, either alone or in conjunction with other persons, and such estate may be charged in equity with the satisfaction of engagements entered into in the course of such joint trade, either by herself or her associates. Such association may be made either with her husband or a third person.
    Was it intended that the separate estate should, if it became necessary, respond to or secure the contract obligation ? Such intention may be express or implied. Phillips v. Graves, 20 Ohio St. 371; Avery v. Vansickle, 35 Ohio St. 270; Williams v. Urmston, 35 Ohio St. 296; 3 Pom. Eq. Jur. 47, n. 1, 52, n. 1; Stew. Hus. and Wife, §§ 206-7.
    A married woman has, in equity, in relation to her separate estate, the same powers and liabilities as a feme sole. Stew. Hus. and Wife, § 203; Buckley v. Wells, 33 N. Y. 518, 523; Pybus v. Smith, 3 Bro. Ch. 340*, 346*; Towers v. Hagner, 3 Whart. (Pa.) 48, 57; Gardner v. Gardner, 22 Wend. 526, 528; North Am. Coal Co. v. Dyett, 7 Paige, 9; s. c., 20 Wend. 570, 573; Jaques v. Meth. Epis. Ch., 17 Johns. 548, 578; Taylor v. Meads, 34 L. J. (N. S.) 203, 207; 1 Bish. Law Mar. Wom., §§ 552, 557, 861, 864; 2 Story Eq. Jur. § 1397; 3 Pom. Eq. Jur., §§ 159, 1104; Schouler Hus. and Wife, §§ 241-3, 246; 2 Perry Trusts, §§ 654-5; Williams v. Urmston, supra.
    
    The weight of authority is that a wife has ia equity all powers as to her separate estate not expressly taken away by the act (we add “ or statute”) of settlement. 3 Pom. Eq. Jur., pp. 28, 29, n. 2, p. 53, n. 3; Schouler Hus. and Wife, § 239; Jaques v. Meth. Epis. Ch., supra; Kelley Con. 259, n. 5.
    In dealing with her property she has, in equity, all the powers incident to ownership, of which the chief is the jus disponendi. Phillips v. Graves, 20 Ohio St. 371; 1 Bish. Mar. Worn., §§ 552, 553, 857, 861-864.
    The notion that only the written contracts of a married woman are enforceable in equity we believe to be exploded in Ohio. Phillips v. Graves, supra; Williams v. Urmston, supra; Avery v. Vansickle, supra. See Perry Trusts, § 358 n. 3.
    The petitions specifically aver that the contracts were made, on both sides, on the credit of a charge created on the separate estate. These actions can be maintained if the proof shows that Mrs. Thompson invested her separate estate in the coal business, as her property, with the idea thereby of increasing the estate, or of saving the estate from the burden of supporting the family, or to add to her luxuries, or to make the estate fruitful, and knew that to accomplish this result purchases on credit would be necessary, and empowered her husband to make them; and that these purchases were made for that business and purpose, under that power; and that the vendors, when making the sales, knew the husband was insolvent and the wife wealthy; were so told by the husband; and sold on the credit of the wife’s property, trusting it and her. This, whether we do or do not succeed in showing that she personally took part in the business, and that she knew of and directed those specific purchases. To sustain the propositions maintained under this head, we refer to the following authorities: Butler v. Cumpston, L. R., 7 Eq. 16, 20, 21; Matthewman’s case, L. R. 3 Eq. 781, 787; 1. Bish. Mar. Wom., §§ 857-8, 861-2, 876; Schouler Hus. and Wife, §§ 241-2, 246; Wells’ Sep. Prop. Mar. Wom., §§ 448, 452, 453, 465; Todd v. Lee, 15 Wis. 380; Phillips v. Graves, supra; 2 Story Eq. Jur., § 1400; Stew. Hus. and Wife, § 206.
    It is certainly not true that a married woman can not carry on trade. This is clearly settled in Ohio. Morgan v. Perhamus, 36 Ohio St. 517.
    A married woman may, at least with her husband’s consent, embark her separate estate in trade, and in equity charge her separate estate with engagements incurred in business. Stew. Hus. and Wife, §§ 46, 203; Schouler Hus. and Wife, §§ 299-304, 310; 2 Story Eq. Jur., §§ 1385-1387; 24 Am. L. Reg. (N. S.) 358; Haight v. Mc Veagh, 69 Ill. 624, 625; Martin v. Robson, 65 Ill. 129; Nispel v. Laparle, 74 Ill. 306, 308; Wilson v. Loomis, 55 Ill. 352; Blood v. Barnes, 79 Ill. 439; 3 Pom. Eq. Jur., § 1105, n. 1.
    Having the power to engage her separate estate in trade, she may employ agents whose acts will bind such estate, Stew. Hus. and Wife, 364; Whart. Ag., § 11; North Am. Coal Co. v. Dyett, 7 Paige, 9, 14. See L. R. 10 Q. B. 147; Allen v. Johnson, 48 Miss. 413.
    Wherever it is held that a married woman may engage her separate estate in trade, it is held she may do this alone or in conjunction with others, personally, through agents, or as a partner. Pars. Part. 25 and n. 2; Collyer Part., § 14, n. 4; Atwood v. Meredith, 37 Miss. 635; Newman v. Morris, 52 Miss. 402; Bitter v. Rathman, 61 N. Y. 512; Scott v. Conway, 58 N. Y. 619; Kelley Con. Mar. Wom. 159; Haight v. Mc Veagh, supra; Stew. Hus. and Wife, § 480; 2 Bish. Law. Mar. Wom., § 436; Penn v. Whitehead, 17 Gratt. 503, 512; Parshall v. Fisher, 43 Mich. 529, 534; Preusser v. Henshaw, 49 Iowa, 41, 44; Silveus v. Porter, 74 Pa. St. 448, 449.
    The relations of husband and wife are not inconsistent with those of partner to partner.
    It is true that at common law husband and wife constitute but one person and that the husband could not deal with the wife’s personal property without reducing it to his possession and thus becoming himself the owner. But this was not true in equity as to the wife’s separate estate.
    In Ohio there is no such thing as a wife’s general estate. All her property seems to have become her separate estate. Phillips v. Graves, supra.
    
    In equity husband and wife, as to the wife’s separate estate, are distinct persons. They may sue, contract with, and become debtor and creditor of each other. 2 Story Eq. Jur., §§ 1168, 1370, 1372; Stew. Hus. and Wife, §§ 42, 45, 46; Willard Eq. Jur. 634, 646, 649; Wilcox v. Todd, 64 Mo. 388; Wright v. Wright, 16 Iowa, 496; Northrop v. Barnum, 15 Wend. 167; Head v. Head, 3 Atk. 295; Guth v. Guth, 3 Bro. Ch. 614; Angier v. Angier, Finch Prec. 497; Jelineau v. Jelineau, 2 Desaus. Ch. 50; Prather v. Prather, 4 Desaus. Ch. 35; Reeves Dom. Rel. 214; 2 Story Eq. Jur., § 1380; Strong v. Skinner, 4 Barb. 546; Firemen's Ins. Co. v. Bay, 4 Barb. 407, 414.
    The wife may sue the husband to compel specific performance of agreements made between them without the intervention of trustees before or after marriage. Garlick v. Strong, 3 Paige, 440, 451; Cannel v. Buckle, 2 P. Wms. 243, 244; Sidney v. Sidney, 3 P. Wms. 269; Wright v. Cadogan, 2 Eden Ch. 253; Cruger v. Cruger, 5 Barb. 231; Bradish v. Gibbs, 3 John. Ch. 523; Livingston v. Livingston, 2 John. Ch. 537.
    Or to restrain the husband from interfering with her separate estate, and to get control of it. Martin v. Martin, 1 N. Y. 473; 1 Hoffm. Ch. 462; Minier v. Minier, 4 Lans. 421, 422; Whitney v. Whitney, 49 Barb. 319, 322; s. c., 3 Abb. Pr. 350, 353.
    Or to set aside conveyance of wife to husband. Fry v. Fry, 7 Paige Ch. 461, 463.
    Or to obtain an equitable allowance out of that part of her husband’s estate derived through the wife. Carter v. Carter, 1 Paige Ch. 463; Partridge v. Havens, 10 Paige, 625; Van Dazer v. Van Dazer, 6 Paige, 366; Clancy Mar. Wom. 464; 2 Story Eq. Jur. §§ 1404, 1414; Roberts v. Roberts, 2 Eq. Cas. 421; Kenny v. Udall, 5 John. Ch. 463; s. c., 3 Cow. 590.
    
      A wife may purchase property from her husband for a bona fide and valuable consideration. Livingston v. Livingston, 2 John. Ch. 537; Lady Arundel v. Phipps, 10 Ves. 139, 146, 149; Savage v. O'Neil, 44 N. Y. 298.
    A wife may purchase a judgment against her husband, levy on his land and sell it to pay the same. Strong v. Skinner, 4 Barb. 546.
    By marriage settlements a wife may act as to l*er separate estate as a feme sole, may loan to her husband if she choose, and he must repay her as though he were a stranger. Towers v. Hagner, 3 Whart. (Pa.) 48, 57; Pybus v. Smith, 3 Bro. Ch. 340*, 346*; Schaffner v. Reuter, 37 Barb. 44, 49; McCartney v. Welch, 44 Barb. 271; Woodworth v. Sweet, 44 Barb. 268, 271; Babcock v. Eckler, 24 N. Y. 623; Savage v. O'Neil, 44 N. Y. 298, 301, 302; Grabill v. Moyer, 45 Pa. St. 530; Rowland v. Plummer, 50 Ala. 193; Bryan v. King, 51 Ga. 291; Hurlbut v. Wade, 40 Ohio St. 603; Huston v. Cone, 24 Ohio St. 11; Huber v. Huber, 10 Ohio, 371.
    A wife may, in equity, sue a firm of which her husband is a member, for money loaned. Gould v. Gould, 36 N. J. Eq. 380; Devin v. Devin, 17 How. Pr. 514; Young v. Ross, 3 W. L. G. 349.
    Eor a fair consideration there may be contracts between husband and wife, and these are enforcible in equity. Wallingsford v. Allen, 10 Pet. 583, 594; 2 Story Eq. Jur., §§ 1372, 1374, 1385-7; Steadman v. Wilbur, 7 R. I. 481, 485, 486.
    Husband may be wife’s tenant. Albin v. Lord, 39 N. H. 196; Booker v. Worrill, 55 Ga. 332; Kaufman v. Whitney, 50 Miss. 103.
    Husband may sue in equity to change wife’s separate estate with money borrowed from him. Gardner v. Gardner, 7 Paige, 112; s. c., 22 Wend. 526, 528; Myers v. King, 42 Md. 66; 67 Mo. 596.
    Husband may be agent of wife. Fairbanks v. Mothersell, 60 Barb. 406, 407.
    Wife may foreclose mortgage against husband given before marriage. Power v. Lester, 17 How. Pr. 413; s. c., 23 N. Y. 527.
    Husband may assign directly to his wife a claim in his favor for his work and labor. Seymour v. Fellows, 77 N. Y. 178, 179.
    Wife may carry on business and have her husband manage it for her. Schouler Hus. and Wife, §§ 277, 282, 314, 15; Owen v. Cawley, 36 N. Y. 600, 604; Draper v. Stouvenal, 35 N. Y. 513; Buckley v Wells, 33 N. Y. 518, 521, 523; Smith v. Sweeny, 35 N. Y. 291, 294; Freiberg v. Branigan, 18 Hun, 344; Merchant v. Bunnell, 3 Keyes, 541; Knapp v. Smith, 27 N. Y. 277, 280; Kluender v. Lynch, 4 Keyes, 361; Abbey v. Deyo, 44 Barb. 374; s. c., 44 N. Y. 343; Whedon v. Champlin, 59 Barb. 61; Lockwood, v. Cullin, 4 Robt. 136; Wells v. Smith, 54 Ga. 262; Glover v. Alcott, 11 Mich. 492; Cooper v. Ham, 49 Ind. 394; Manderbach v. Mock, 29 Pa. St. 46; Jones v. Smith, 121 Mass. 15; 2 Bish. Law Mar. Wom., § 439; Bellows v. Rosenthal, 31 Ind. 116; Rankin v. West, 25 Mich. 195, 200; Porter v. Mount, 45 Barb. 422; Warner v. Warren, 46 N. Y. 228; Baum v. Mullen, 47 N. Y. 577, 579; Bodine v. Killeen, 53 N. Y. 93.
    The doctrine of non-identity has been recognized by this court. Crooks v. Crooks, 34 Ohio St. 610. See also Hardy v. VanHarlingen, 7 Ohio St. 208; Huber v. Huber, 10 Ohio, 371; Huston v. Cone, 24 Ohio St. 11; Fowler v. Trebein, 16 Ohio St. 493.
    Husband and wife may be jointly liable. Williams v. Urmston, 35 Ohio St. 296. See also White v. McNett, 33 N. Y. 371; Heatley v. Thomas, 15 Ves. 596; Hulme v. Tenant, 1 Brown Ch. 16; Standford v. Marshall, 2 Atk. 69; McKenna v. Rowlett, 68 Ala. 186.
    The following are some of the cases usually cited as being against our claim: Carey v. Burruss, 20 W. Va. 571; s. c., 43 Am. Rep. 790; Meyer v. Soyster, 30 Md. 403; Bradstreet v. Baer, 41 Md. 19; Plumer v. Lord, 5 Allen, 460; s. c., 7 Allen, 481; s. c., 9 Allen, 455; Lord v. Parker, 3 Allen, 127; Edwards v. Stevens, 3 Allen, 315.
    Since the decisions of the Massachusetts courts, however, it has been said by an eminent jurist that they are really based on the want of equity jurisdiction in the courts deciding them. In re Blandin, 1 Low. 543.
    The same opinion has been intimated by the Massachusetts supreme court. Atlantic Nat. Bank v. Tavener, 130 Mass. 407, 409; Bassett v. Bassett, 112 Mass. 99; 3 Pom. Eq. Jur., § 1126, n. 1.
    So in the following cases it was held, for reasons good only at law, that a married woman could not be a partner in trade: Montgomery v. Sprankle, 31 Ind. 113; Hass v. Shaw, 91 Ind. 384; 44 Tex. 381. But see Morgan v. Perhamus, 36 Ohio St. 517.
    A married woman may be a partner with her husband. In re Goodman, 5 Biss. 401; In re Kinkead, 3 Biss. 405; Todd v. Lee, 15 Wis. 365; Krouskop v. Shontz, 51 Wis. 204; Zimmerman v. Erhard, 58 How. Pr. 11; s. c., 8 Daly, 311; s. c., 83 N. Y. 74; Graff v. Kinney, 15 Abb. N. C. 397; Tibbatts v. Tibbatts, 6 McLean, 80; Scott v. Conway, 58 N. Y. 619.
    Text writers have differed very widely as to the real meaning of the decision of Swasey v. Antram, 24 Ohio St. 87, relied upon by counsel for defendants in error. Kelley Con. Mar. Wom. 159; Schouler Hus. and Wife, § 317; Wells’ Sep. Prop. Mar. Wom., § 155.
    
      W. G. Rogers, for defendants in error.
    The plaintiffs call on the court to sot aside a long and well established rule of property, to reverse at least two, if not three, decisions of this court, and go a long step further than the legislature has yet gone. They desire the court, as .we understand it, to distinctly overrule Quigley v. Graham, 18 Ohio St. 42; Swasey v. Antram, 24 Ohio St. 87; Alexander v. Morgan, 31 Ohio St. 551.
    At common law a married woman could not be a partner with her husband. 1 Black Com. 442; 2 Com. Dig., Baron & Feme, D. 1; Scarborough v. Watkins, 9 B. Mon. 545; Stew. Hus. and Wife, §§ 41, 358; Bertles v. Nunan, 92 N. Y. 160; Robins v. McClure, 3 N. E. Rep. 666; Proffatt Wom. Before the Law, 33, 53, 55, 56; Ramsdall v. Craighill, 9 Ohio, 197; Walden v. Chambers, 7 Ohio St. 30; Needles v. Needles, 7 Ohio St. 432.
    The wife can make such contracts only as positive statutory enactments allow. Bertles v. Nunan, supra; Coleman v. Burr, 93 N. Y. 17; Pollen v. James, 45 Miss. 129, 133; Hinkson v. Williams, 41 N. J. Law, 35; Nash v. Mitchell, 71 N. Y. 199; Stillwell v. Adams, 29 Ark. 346; 11 Allen, 214; West v. Laraway, 28 Mich. 464; Lewis v. Perkins, 36 N. J. Law, 133; Scarborough v. Watkins, 50 Am. Dec. 528; Levi v. Earl, 30 Ohio St. 163; Crooks v. Crooks, 34 Ohio St. 614; Alexander v. Morgan, 31 Ohio St. 549; Fowler v. Chichester, 26 Ohio St. 9; Wilson v. Wilson, 30 Ohio St. 365.
    The legislation relating to married women can not receive a liberal construction. Cole v. Van Riper, 44 Ill. 64; Ashley v. Rockwell, 43 Ohio St. 386.
    When a statute authorizes her to contract with reference to her separate property, her contracts, to be valid, must be with reference to her separate property. The extent of the power depends upon the grant. Sammis v. McLaughlin, 35 N. Y. 647; Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136; Avery v. Vansickle, 35 Ohio St. 273; Libby v. Berry, 84 Me. 288; Machir v. Burroughs, 14 Ohio St. 519.
    At common law the marriage of the feme sole dissolved the partnership. 1 Lindley on Part. 240*, 241*; Pars. Part. 390, 462; Bassett v. Shepardson, 52 Mich. 3; Brown v. Chancellor, 61 Tex., 437, 445; Alexander v. Morgan, 31 Ohio St. 551.
    "The point here involved does not need to be argued out from inferences and fanciful conclusions. It has been squarely met and decided again and again,'and in numerous states having a code like ours. Brown v. Jewett, 18 N. H. 230; Bassett v. Shepardson, supra; Plumer v. Lord, 7 Allen, 481; Whitney v. Closson, 138 Mass. 49; Haas v. Shaw, 91 Ind. 384, 389; Brown v. Chancellor , 61 Tex. 437; Story Part. 306; 1 Collier Part. 151; Bradstreet v. Baer, 41 Md. 19; Carey v. Burruss, 20 W. Wa. 571; Kaufman v. Schoeffel, 37 Hun, 140. See also Shartzer v. Love, 40 Cal. 93; Montgomery v. Sprankle, 31 Ind. 113; Lord v. Parker, 3 Allen, 127; Plumer v. Lord, 5 Allen, 460; Chatterton v. Young, 2 Tenn. Ch. 768, 772; Atlantic Nat. Bank v. Tavener, 130 Mass. 409; Fairlee v. Bloomingdale, 14 Abb. N. C. 341; Bertles v. Nunan, 92 N. Y. 152; Coleman v. Burr, 93 N.Y. 17; Snyder v. People, 26 Mich. l06; Smiley v. Smiley, 18 Ohio St. 543; Howard v. Stephens, 52 Miss. 239; Quigley v. Graham, 18 Ohio St. 42; Swasey v. Antram, supra; Ex parte Holland, L. R. 9 Ch. App. Cas. 307; Story Part., sec. 10; 1 Collier, Part., § 14; Stew. Hus. and Wife, § 40; 1 Lindley Part. 84; Proffat Wom. Before the Law, 53; Wells Sep. Prop. Mar. Wom., § 155; 19 Am. L. Rev. 371; 6 South. L. Rev. N. S. 657.
   Owen, C. J.

Do the facts stated in the plaintiffs’ petition entitle them to the relief they seek against the defendant, Elizabeth J. Thompson, which is, that the sums represented by the accounts which they aver were sold and .assigned to them, may be declared a lien upon her separate real estate, and that the same may be subjected to the payment thereof?

This is the sole question presented for our consideration. These accounts against the supposed partnership, composed of M. T. Thompson and his wife (as M. T. Thompson & Co.), which the plaintiffs say accrued to their assignors by reason of the sale of coal by the latter to such firm, are made the basis of their proceeding to subject the separate real estate of Elizabeth to their payment. They are the only evidences of indebtedness, or of the supposed causes of action which the plaintiff's in form allege were assigned to them by the parties in whose favor, it is alleged, they were contracted.

If they are entitled to the relief they seek, it is because such remedy is incidental to the liability represented by these accounts.

This involves the presupposition that M. T.' Thompson and his wife, Elizabeth, had capacity to, and did, enter into a trading partnership for the purpose of buying coal and selling the same at retail. ¥e are not materially aided in our investigation by the fact that the broad and comprehensive averments of the petition were evidently inspired by a determination to impart to the proceeding, at all hazards, an equitable character.

It is averred that, in the'business of the firm of M. T. Thompson & Co., Elizabeth “ had invested a considerable part of her said separate estate, as her separate property, her interest therein, and in the profits and losses thereof remaining-her separate estate with the knowledge of and consent of her said husband.”

In spite of the heroic averment that not only the profits of the business but even the the losses thereof remained her separate estate, we are confronted at the threshold of our inquiry with the requirement that, as an indispensable predicate to an equitable charge upon her separate estate, Elizabeth Thompson and her husband must have entered into a trading partnership. It was in the business of such a firm, if- at all, that she embarked her separate property. It was as collateral to the liability of such a firm, if at all, that she charged her separate estate in equity. A partnership is an association for the purpose of prosecuting any lawful business, formed by contract betwen two or more persons.

A contract, it seems, is essential to the formation of a partnership. Among the essentials of every contract are two competent contracting parties, and mutuality of obligation.

That a married woman had not capacity at common law to enter into a partnership with her husband will not admit of serious controversy. 1 Black. Com. 442; Matthews Part., § 9; 1 Collyer Part. (6th ed.), sec. 14; Brown v. Jewett, 18 N. H. 230; Parsons Part. *23.

If she be endowed with capacity to enter into a contract of copartnership with her husband in Ohio, it is so by favor of some enabling statute. Except so far as capacity has been given to her by statute to bind herself by her contracts they are void. We are not now dealing with her power to chargé her separate property in equity, but simply with her power to bind herself at law by her contracts. As the transactions involved in this controversy occurred prior to the legislation of 1884 (81 Ohio L. 65,209), we are not called upon to consider or construe these enactments.

Without reviewing the legislation of this state, the object and effect of which has been to remove some of the common-law disabilities of married women and to invest them with capacity to bind themselves in certain respects by their contracts, it is sufficient to say that, at the time of the transaction involved in this inquiry, no power had been given them by statute to engage in business, as partners, with their husbands. See Levi v. Earl, 30 Ohio St. 167.

While this court has not heretofore been called upon to consider this precise question, the manifest tendency of its adjudications has been in the direction of the conclusion just announced. Swasey v. Antram, 24 Ohio St. 87; Alexander v. Morgan, 31 Ohio St. 551. In the latter case it was said that when an unmarried female was engaged in business as a partner, her marriage dissolved the partnership of which she was a member. This proposition is vitally inconsistent with the theory that a married woman has capacity to engage in business as a partner.

In McClelland v. Bishop, 42 Ohio St. 113, it was held that the joint note of the husband and wife is the valid obligation of the husband alone.

It should be borne in mind that the provisions of sections 4496 and 5319 of the Revised Statutes were not intended to enlarge or vary the liabilities of married women, but relate merely to the form of remedy. Jenz v. Gugel, 26 Ohio St. 527; Allison v. Porter, 29 Ohio St. 136.

Counsel for plaintiffs in error invite us, however, to look upon the proceeding below and the transactions which it involves, as relating wholly to Elizabeth’s power to charge her separate property in equity. They say: “It may be well to define what we mean when we claim that a married woman may be a partner’. It is not contended that she is a partner in the same sense in which a man is a partner. A person sui juris, who is a partner, thereby makes him or herself personally liable at law for all engagements contracted in the partnership business by any of the partners. This we do not claim to be true as to a married woman, but we do claim that a married woman may embark her separate estate in trade; that this trade may be carried on alone, or in conjunction with other persons, and that her separate estate maybe charged in equity with the satisfaction of engagements entered into in the course of. such joint trade, either by herself or her associates. We further claim that she may thus associate herself in trade either with her husband or with third persons.”

Looking to the petition, we fail to find a warrant for the peculiar interpretation of its averments here contended for. It is averred that the defendants were “partners doing business under the firm name and style of M. T. Thompson & Co.” That the coal which entered into the accounts sued upon “ was all purchased by said firm of M. T. Thompson & Co. for use in its said business i n the course of said business, which was that of selling coal by retail.” That their assignors “sold and delivered to defendants the coal mentioned in said account at and for the agreed prices therein stated.” The accounts were made out as against “ M. T. Thompson & Co.” In this form they were sold and assigned to the plaintiffs. It is averred that nothing has been paid on these accounts, and that there is now due and payable thereon from the defendants to the plaintiffs the sums named in the accounts. The prayer is for judgment against defendants for the sums stated in the accounts, and that the same be declared a lien upon the real estate of the wife, which it is prayed may be subjected to their payment. The theory of counsel, as indicated above, almost wholly ignores the existence of the husband as a contracting party. It is averred that he had not nor has he any property of any kind subject to the payment of debts. That the coal was sold upon the credit of the separate estate of the wife, and that she intended to and did charge her separate estate and income with the payment thereof. This theory of counsel also ignores or is utterly inconsistent with the existence of any such partnership as the petition describes.

With the partnership also disappears the accounts; and as they are the only evidences of indebtedness which the plaintiffs allege they purchased or hold, there would not seem to be much left upon which to predicate the proceeding to charge and subject the separate property of Elizabeth. We do not feel at liberty thus to emasculate the plaintiffs’ petition by construction.

The existence of a partnership capable of contracting a liability represented by these accounts is vital to the relief which the plaintiffs seek against the estate of Elizabeth.

’ Giving to the petition that reasonable and liberal construction to which it is entitled, we find no difficulty in construing its object to be to subject the separate property of the wife to the satisfaction of the supposed liability of an alleged partnership of which she is treated as a member, and this by virtue of a charge which she is supposed to have imposed upon it in equity. As no such partnership bad or could have a legal existence, and as no such liability was incurred, no cause of action against the wife is stated in the petition.

If it be conceded, however, that “ M. T. Thompson & Co.” constituted a partnership capable of contracting, there is another view upon which the relief sought against Elizabeth should be denied. It will be conceded that it is not by virtue of any contract obligation that her separate estate can be charged in equity.

It is because, under all the circumstances of the transaction, it would be inequitable to withhold her property from satisfaction of liabilities incurred on the faith of it, that' equity will subject it.

While it is averred in the petition that the husband is without means to pay debts, it does not appear that the firm of “ M. T. Thompson & Co.” is either without ample means to discharge its indebtedness, or that it is not still in the successful prosecution of its business. It is averred in the petition that Elizabeth invested a considerable part of her separate property in the business of the firm.

Whether this is the property which is now sought to be subjected does not appear. It is very clear, however, that, assuming the legal existence of a partnership, this property so invested in the business of the firm was thereby placed under the control of the husband as a member and .consequently an agent of the firm, with full power to appropriate it to the satisfaction of the partnership liabilities. For this purpose it is the primary fund. In the absence of some averment that this fund, which is shown to have once had an existence, is exhausted, or is inadequate to the payment of plaintiffs’ claim, there is not shown that state of circumstances which would justify a court of equity in decreeing that the separate property of the wife be subjected to the payment of the partnership liabilities.

While in either view the petition fails to show sufficient grounds for the relief sought against the wife’s property, we regard the former as the true ground, and upon it we rest the determination of the case.

Judgment of the court of common pleas affirmed.  