J. P. Hayden & Co. The main question involved is, Can a husband and wife becoine partners in trade in this state? It is claimed that they may, under the act of November 21, 1881, commonly known as chapter 183 of the code of that year. Of that chapter the following sections are supposed to be especially pertinent to the matter in hand:

"Sec. 2396. Every married person shall hereafter have the same right and liberty to acquire, hold, enjoy, and dispose of every species of property, and to sue and be sued, as if he or she were unmarried."

"Sec. 2398. All laws which impose or recognize civil disabilities upon a wife, which are not imposed or recognized as existing as to the husband, are hereby abolished, and for any unjust usurpation of her natural or property rights she shall have the same right to appeal in her own individual name to the courts of law or equity for redress and protection that the husband has."

"Sec. 2400. The property and pecuniary rights of every married woman at the time of her marriage, or afterwards acquired by gift, devise, or inheritance, with the rents, issues, and profits thereof, shall not be subject to the debts or contracts of her husband, and she may manage, lease, sell, convey, encumber, or devise by will, such property, to the same extent and in the same manner that her husband can property belonging to him.

"Sec. 2401. Should either husband or wife obtain possession or control of property belonging to the other, either before or after marriage, the owner of the property may maintain an action therefor, or for any right growing out of the same, in the same manner and to the same extent as if they were unmarried."

"Sec. 2406. Contracts may be made by a wife and liabilities incurred, and the same may be enforced by or against her, to the same extent and in the same manner as if she were unmarried."

Prior to the act of 1881, but for the acts commencing in 1869, the common law would have regulated the property rights of husband and wife. It did then, and still does, regulate them, excepting so far as the statute has directed otherwise; and notwithstanding that this act provides, in section 2417, that the "rule of common law that statutes in derogation thereof are to be strictly construed has no application to this act," it is not to be supposed that the legislature in

tended or proposed to extend the scope of the act beyond the language used, further than the implications naturally flowing therefrom. At the common law, a wife could not be a partner in business with any one, because partnership is based on a contract, as to which she was under a disability, and yet in equity she had always been permitted to enforce contracts made for her benefit, even with her husband, and her claim against him as her debtor had always been sustained: Story's Eq. Jur., secs. 1372, 1373; Valensin v. Valensin, 28 Fed. Rep. 599; Clark v. Hezekiah, 24 Fed. Rep. 663; Huber v. Huber's Adm'r, 10 Ohio, 372. She could have a separate estate, meaning an equitable estate held by a third person in trust for her. This estate she could charge in equity, but not at law. Judgments upon her debts went, not against her person, when allowed at law, but were allowed as equitable burdens upon her estate or personal property in possession at the time of the marriage and that acquired afterward; her choses in action when reduced to possession, and her earnings, became her husband's; in her freeholds and lands in fee the husband took a life estate; he became liable for her antenuptial debts, and jointly with her for her torts during coverture; her responsibility at law for contracts was entirely suspended; and in equity, before the courts would hear anything against her, it must appear that she was possessed of a separate estate in the common-law sense. Now, this act of 1881 does certain things for a married woman: 1. It gives her full dominion over her own property, whether acquired before or after marriage, to enjoy and dispose of it without the intervention of her husband, or responsibility for him or his debts; 2. It removes from her all civil disabilities not imposed upon her husband; 3. She can sue and be sued as if she were unmarried, either at law or in equity; 4. For her debts she alone is responsible; 5. Her property is chargeable with family expenses. In short, the purpose of the act seems to be to set her free from all influence or dominion of her husband, in so far as her property rights are concerned, and leave her to manage, control, and dispose of them as she pleases, whether to her gain or loss.

In this opinion we shall not discuss the question how large her power is, but confine ourselves to the single matter before us. Counsel for respondents contend that as it is the evident purpose of these provisions to emancipate the wife from the control of the husband, and to enfranchise her with the

power denied to her under the common law to acquire, hold, enjoy, and dispose of property, and do business on her own account as freely as he can, or even more freely than he can, under the same act, it must follow that she can enter into a contract of partnership in all the ways and with all the liabilities that her husband can, and that unless she is permitted and held to be able to enter into the same contracts with him that she can with others, she is deprived of the full measure of liberty which the law intends to confer upon her. It may be said that she can, and in some case will, be held to become a general partner with third persons under the terms of the act and the necessary implications thereof. It has been so held in Newman v. Morris, 52 Miss. 402, Abbott v. Jackson, 43 Ark. 212, and elsewhere, when no one of the persons engaged with her as partners was her husband.

But the question still remains, Does the statute intend that she can enter into ordinary contracts with her husband, and particularly the contract of partnership? On this point we think the position of the respondents is antagonistic to itself. In the foreground of the discussion is placed the proposition that the purpose of the statute is to free the wife from the control and influence of her husband, and to relieve her property from his debts and management; but the next following suggestion, that unless she can become his partner she will not be wholly free, if yielded to will place her and her property within touch of the very dangers which it is sought in the first place to withdraw her from. Her improvident husband, by the most ordinary persuasion, or by his mere declaration made in her presence, as in the case at bar, could, in spite of her, unless she assumed a hostility, which would endanger the continuance of the marriage relation, waste and dissipate her entire estate, and thus the very purpose which, it seems to us, stands out the most clearly in the act in question, i. e., to secure her protection in the management and enjoyment of her estate, would be defeated.

In Massachusetts, the married woman's property acts, which existed until 1874, when the legislature expressly forbade husband and wife to contract, provided: "Any woman may, while married, bargain, sell, and convey her real and personal property, which may be her sole and separate property, or which may hereafter come to her by descent, devise, bequest, or gift of any person, except her husband, and enter into any contract in reference to the same, in the same manner as if she were

sole"; and "any married woman may carry on any trade or business, and perform any labor or services, on her own, sole, and separate account; and the earnings of any married woman from her trade, business, labors, or services shall be her sole and separate property, and may be used and invested by her in her own name; and she may sue and be sued as if sole, in regard to her trade, business, etc.; and her property acquired by her or her trade, etc., may be taken on any execution against her." This act covers every material point of our own, and notably the wife is permitted to make "any contract" in reference to her property; which is all that any person can do. But in Lord v. Parker, 3 Allen, 127, it was held that she could not be a partner in a firm where her husband was a partner. Speaking of the statutes, the court said: "Their legal object is to enable married women to acquire, possess, and manage property, without the intervention of a trustee, free from the interference or control and without liability for the debts of their husbands. They are in derogation of the common law, and certainly are not to be extended by construction. And we cannot perceive in them any intention to confer upon a married woman the power to make any contract with her husband, or to convey to him any property, or receive any conveyance from him. The power to form a copartnership includes the power to create a community of property, with a joint power of disposal, and a mutual liability for the contracts and acts of all the partners. To enter into a partnership in business with her husband would subject her property to his control in a manner hardly consistent with the separation which it is the purpose of the statute to secure, and might subject her to an indefinite liability for his engagements. The property invested in such an enterprise would cease to be her "sole and separate" property. The power to arrange the terms of such a contract would open a wide door to fraud in relation to the property of the husband. If she could contract with her husband, it would seem to follow that she could sue him and be sued by him. How such suits could be conducted, with the incidents in respect to discovery, the right of parties to testify, and to call the opposite party as a witness, without interfering with the rule as to private communications between the husband and wife, it is not easy to perceive; and the consequences which would follow in respect to process for the enforcement of rights fixed by a judgment, arrest, imprisonment, charges of fraud, proceedings in invitum

under the insolvent laws, and the like, are not of a character to be readily reconciled with the marital relation. We cannot suppose that an alteration in the law involving such momentous results, and a change so radical, could have been contemplated by the legislature, without a much more direct and clear manifestation of its will."

To the same effect is the construction of the similar statute by the supreme court of the state of Maine: Smith v. Gorman, 41 Me. 405; McKeen v. Frost, 46 Me. 239. In Michigan, Howell's Statutes, section 6295, provides that the separate property and estate of a married woman may be contracted, sold, transferred, mortgaged, conveyed, devised, or bequeathed to her, in the same manner and with the like effect as if she were unmarried." And section 6297 provides that "actions may be brought by and against her in relation to her sole property, in the same manner as if she were unmarried." It is true that these provisions in the Michigan statute (and those of several other states) speak particularly only of her separate estate, but her separate estate is, by section 6295, expressly defined to be the same as that which is equally her separate property in this state; but if she be thus enabled to contract with absolute freedom in reference to her separate estate, then, according to the logic of respondent's argument, her freedom in that respect would be unlawfully curtailed by holding that she could not contract with reference thereto with her husband. Yet the supreme court of Michigan, in Artman v. Ferguson, 73 Mich. 146, 16 Am. St. Rep. 572, after alluding to decisions in other states where it is held that a married woman may be, where she has separate estate, a partner with persons other than her husband, uses this language: "It is the purpose of these statutes to secure to a married woman the right to acquire and hold property separate from her husband, and free from his influence and control; and if she might enter into a business partnership with her husband, it would subject her property to his control in a manner wholly inconsistent with the separation which it is the purpose of the statute to secure, and might subject her to an indefinite liability for his engagements. A contract of partnership with her husband is not included within the power granted by our statute to married women. This doctrine was laid down in Bassett v. Shepardson, 52 Mich. 3, and we see no reason for departing from it. The important and sacred relations between man and wife, which lie at the very