Bartol, I.,
delivered the opinion of this court.
An examination of the facts of this case, as disclosed by the proof, has satisfied us, that the goods and chattels seized andtaken under the writ offieri facias were the property of the complainant, Catharine, held by her to her sole and separate use, under the provisions of the 8th section of the Act of 1842, ch. 293.
The execution was issued at the suit of the appellants to recover a debt due them from Peter McKenna, the husband of the complainant. The right of property in the wife being, in our opinion, clearly established by the evidence, the only ques-lion for us to consider is, whether she is entitled to relief against the execution by proceeding in a court of equity?
The 8th section of the Act of 1842, declares, that the prop-»erty acquired by a married woman, in the mode specified, to the value of one thousand dollars or less, with the fruits, increase and profits thereof, “shall be held by her, to her sole and separate use, with power, as a feme sole, to invest and re-invest, and sell and dispose of the same.”
The 3rd section of the Act of 1853, ch. 245, provides, “that it shall not hereafter be necessary to interpose a trustee, in or» [266]*266tier to secure to a married woman the sole and separate use of her properly.”
There can be no difficulty in construing these sections; their plain purpose and intention were to relieve the disability which was imposed by the common law upon a married woman, and to enable her to acquire, by her skill, industry and personal labor, a limited amount of property, and to hold and dispose of the same free from the control or interference of her husband. Such property is not only exempt from liability for his debts, but it is, during the coverture, in no manner subject to his marital rights. He is not her trustee; no trustee is necessary, as at the common law, for the purpose of supporting the separate use. The whole estate, legal and equitable, is vested in her, subject to her control and disposition, as if she were unmarried. This is not in conflict with the decision of this court in the case of Schindel vs. Schindel, 12 Md. Rep., 294, cited and relied upon by the appellants as establishing a different construction of these Acts of Assembly.
An examination of the opinion of the court pronounced in that case will show, that the Reporter, in making his synopsis of the decision, has not slated the points ruled by the court, with his usual precision and accuracy. The construction of the 8th section of the Act of 1842, was not involved in that case. It was a controversy between the husband and wife; the property in dispute was not held to her sole and separate use, but was the real and personal estate belonging to her while sole, which she claimed to hold, after marriage, exclusively as her own, exempt from the marital rights of her husband, by virtue of the provisions of the Constitution and of the Act of 1853, and the whole extent of the court’s decision i was, that such property was, under the Act of 1853, exempt from the debts of the husband, his marital rights over it, in other respects, remaining unimpaired. That decisión has no> application here. As we have seen, the title of Catharine McKenna, the complainant, to the property taken in. execution, arises under the 8th section of the Act of 1842, which,, in express terms, entitles her to hold it to her sole and separate use. While that section provides a remedy for her creditors, [267]*267by proceeding in the nature of attachment against her property, it is silent as to the mode by which her rights over it are to be protected and enforced in a court of justice. In this respect she is left, by the Act of 1842, to her ancient remedies. The statute enables her to acquire and dispose of certain property as a feme sole, but does not entirely remove her disability. Being covert she cannot sue or be sued in a court of law as a feme sole. See 2 Story's Eq., sec. 1367. Her position is not unlike that of a feme covert sole trader under the custom of London, and in Beard vs. Webb, 2 Bos. & Pull., 93, it was held that such sole trader could not sue or be sued alone at law.
Whatever appertains to the separate property of a married woman has always been a peculiar subject of jurisdiction of courts of equity. In. 2 Story's Eq., secs. 1385, 1386, the learned author, after speaking of the rights and liabilities of a wife, under an agreement with her husband, made before or after marriage, whereby she is authorized to carry on trade on her sole account, says in sec. 1387: “We here perceive that the law will give effect to such agreements, only when those forms have been observed which will vest the property in parties capable of enforcing the proper rights of the wife in legal tribunals, as is the case where the property is vested in trustees, for her sole use and benefit, in order to enable her to carry on trade. But courts of equity will go further, and if there is any sucli agreement, before marriage, resting in articles and without trustees, by which she is permitted to carry on business, on her sole and separate account, or, if without, such ante-nuptial agreement, the husband should permit her, after marriage, to carry on business, on her sole and separate account, all ¡hat she earns in tradé will be deemed to be her separate property* and disposable by her as such, subject however to the claims of third persons properly affecting it. In the former case, the earnings will, in equity, be supported for her separate use, against her husband and his creditors; in the latter, against him only, unless the permission, after marriage, arises from a valuable consideration.” What might have been done by ante-nuptial contract, the Act of [268]*2681842 was designed more effectually to accomplish, and we perceive no sound reason why a court of equity may not support and protect the separate use of the complainant against the creditors of her husband.
In the case of Bridges & Co. vs. Phillips, 25 Ala., 136, and in Crabb’s Adm’r, vs. Thomas, Ibid., 212, it was held that “ a married woman may come into equity, suing by her next friend, to protect her separate property from levy and sale under execution against her husband.” In the former case, the equitable relief was granted upon the ground that her trustee refused to interpose a claim at law, and in the latter, because she had no trustee to protect her interest at law; and, in each case, we think the ruling of the court was consistent with reason and authority. See, also, 9 Paige, 363, Shirley vs. Shirley. In deciding that the complainant is entitled to the relief prayed by her bill, we do not mean, in any manner, to impugn the doctrines so ably announced in the cases cited from 3 Randolph, 25 and 170, and which have been repeatedly recognized by this court. But the jurisdiction of courts of equity to interpose for the protection of the separate property of a married woman, from the execution of her husband’s creditors, has always been asserted on the ground that, by reason of her disability, she had not a complete and adequate remedy at law.
It has been argued that under the 2nd section of the Act of 1853, ch. 245, the complainant may have complete redress in a court of law, and, therefore, a court of equity ought not to interfere.
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Bartol, I.,
delivered the opinion of this court.
An examination of the facts of this case, as disclosed by the proof, has satisfied us, that the goods and chattels seized andtaken under the writ offieri facias were the property of the complainant, Catharine, held by her to her sole and separate use, under the provisions of the 8th section of the Act of 1842, ch. 293.
The execution was issued at the suit of the appellants to recover a debt due them from Peter McKenna, the husband of the complainant. The right of property in the wife being, in our opinion, clearly established by the evidence, the only ques-lion for us to consider is, whether she is entitled to relief against the execution by proceeding in a court of equity?
The 8th section of the Act of 1842, declares, that the prop-»erty acquired by a married woman, in the mode specified, to the value of one thousand dollars or less, with the fruits, increase and profits thereof, “shall be held by her, to her sole and separate use, with power, as a feme sole, to invest and re-invest, and sell and dispose of the same.”
The 3rd section of the Act of 1853, ch. 245, provides, “that it shall not hereafter be necessary to interpose a trustee, in or» [266]*266tier to secure to a married woman the sole and separate use of her properly.”
There can be no difficulty in construing these sections; their plain purpose and intention were to relieve the disability which was imposed by the common law upon a married woman, and to enable her to acquire, by her skill, industry and personal labor, a limited amount of property, and to hold and dispose of the same free from the control or interference of her husband. Such property is not only exempt from liability for his debts, but it is, during the coverture, in no manner subject to his marital rights. He is not her trustee; no trustee is necessary, as at the common law, for the purpose of supporting the separate use. The whole estate, legal and equitable, is vested in her, subject to her control and disposition, as if she were unmarried. This is not in conflict with the decision of this court in the case of Schindel vs. Schindel, 12 Md. Rep., 294, cited and relied upon by the appellants as establishing a different construction of these Acts of Assembly.
An examination of the opinion of the court pronounced in that case will show, that the Reporter, in making his synopsis of the decision, has not slated the points ruled by the court, with his usual precision and accuracy. The construction of the 8th section of the Act of 1842, was not involved in that case. It was a controversy between the husband and wife; the property in dispute was not held to her sole and separate use, but was the real and personal estate belonging to her while sole, which she claimed to hold, after marriage, exclusively as her own, exempt from the marital rights of her husband, by virtue of the provisions of the Constitution and of the Act of 1853, and the whole extent of the court’s decision i was, that such property was, under the Act of 1853, exempt from the debts of the husband, his marital rights over it, in other respects, remaining unimpaired. That decisión has no> application here. As we have seen, the title of Catharine McKenna, the complainant, to the property taken in. execution, arises under the 8th section of the Act of 1842, which,, in express terms, entitles her to hold it to her sole and separate use. While that section provides a remedy for her creditors, [267]*267by proceeding in the nature of attachment against her property, it is silent as to the mode by which her rights over it are to be protected and enforced in a court of justice. In this respect she is left, by the Act of 1842, to her ancient remedies. The statute enables her to acquire and dispose of certain property as a feme sole, but does not entirely remove her disability. Being covert she cannot sue or be sued in a court of law as a feme sole. See 2 Story's Eq., sec. 1367. Her position is not unlike that of a feme covert sole trader under the custom of London, and in Beard vs. Webb, 2 Bos. & Pull., 93, it was held that such sole trader could not sue or be sued alone at law.
Whatever appertains to the separate property of a married woman has always been a peculiar subject of jurisdiction of courts of equity. In. 2 Story's Eq., secs. 1385, 1386, the learned author, after speaking of the rights and liabilities of a wife, under an agreement with her husband, made before or after marriage, whereby she is authorized to carry on trade on her sole account, says in sec. 1387: “We here perceive that the law will give effect to such agreements, only when those forms have been observed which will vest the property in parties capable of enforcing the proper rights of the wife in legal tribunals, as is the case where the property is vested in trustees, for her sole use and benefit, in order to enable her to carry on trade. But courts of equity will go further, and if there is any sucli agreement, before marriage, resting in articles and without trustees, by which she is permitted to carry on business, on her sole and separate account, or, if without, such ante-nuptial agreement, the husband should permit her, after marriage, to carry on business, on her sole and separate account, all ¡hat she earns in tradé will be deemed to be her separate property* and disposable by her as such, subject however to the claims of third persons properly affecting it. In the former case, the earnings will, in equity, be supported for her separate use, against her husband and his creditors; in the latter, against him only, unless the permission, after marriage, arises from a valuable consideration.” What might have been done by ante-nuptial contract, the Act of [268]*2681842 was designed more effectually to accomplish, and we perceive no sound reason why a court of equity may not support and protect the separate use of the complainant against the creditors of her husband.
In the case of Bridges & Co. vs. Phillips, 25 Ala., 136, and in Crabb’s Adm’r, vs. Thomas, Ibid., 212, it was held that “ a married woman may come into equity, suing by her next friend, to protect her separate property from levy and sale under execution against her husband.” In the former case, the equitable relief was granted upon the ground that her trustee refused to interpose a claim at law, and in the latter, because she had no trustee to protect her interest at law; and, in each case, we think the ruling of the court was consistent with reason and authority. See, also, 9 Paige, 363, Shirley vs. Shirley. In deciding that the complainant is entitled to the relief prayed by her bill, we do not mean, in any manner, to impugn the doctrines so ably announced in the cases cited from 3 Randolph, 25 and 170, and which have been repeatedly recognized by this court. But the jurisdiction of courts of equity to interpose for the protection of the separate property of a married woman, from the execution of her husband’s creditors, has always been asserted on the ground that, by reason of her disability, she had not a complete and adequate remedy at law.
It has been argued that under the 2nd section of the Act of 1853, ch. 245, the complainant may have complete redress in a court of law, and, therefore, a court of equity ought not to interfere. That section provides, “that, in order to effect the objects of the foregoing section, the wife shall have the benefit of all such remedies, for her relief and security, as now exist, or may be devised in the courts of law or equity of this State.”
The object of the first section is to exempt the wife’s property from liability for the husband’s debts. It comprehends all property, real and personal, belonging to a woman at the time of her marriage, and all property acquired or received by her after marriage in any of the modes prescribed in the Act. Its language is comprehensive enough to embrace, as well property held by her generally and not. limited to her sole and [269]*269.separate use, ns all property held by her to her sole and separate use, whether acquired under the 8th section of the Act of 1842, or by any other mode.
As to property of the former class, we have said it is merely protected from the debts of the husband, leaving his marital rights over it, in other respects, unimpaired. It follows, therefore, that., under the second section, the remedies for her relief and security, with reference to such property, must be confined to cases where it is sought to be subjected to the payment of her husband’s debts, and that the form and manner of the remedy must be devised with reference to her legal disability and the marital rights of her husband. The legal title being in him, that title must be asserted in courts of law by him, either alone, or jointly with her, where, by t.he pre-existing law, such joinder was necessary. She cannot sue at law, alone or by next friend, if the husband refuses to interpose, by suit at law, for her protection. She may sue in equity, by next friend, in any matter properly within the cognizance of such court, and the husband, in such case, would be a necessary party defendant, so that he may have an opportunity of asserting his marital rights.
With reference to property held by the wife under the 8th section of the Act of 1842, or in any other way vested in her, to her sole and separate use, without any trustee, we consider her condition and rights materially altered by the Acts of Assembly to which we have referred.
At the common law, wherever property was so limited to a married woman, as courts of law could notice only the legal, title, they could take no cognizance of such separate use, and, in courts of equity, it was supported by treating the husband as her trustee.
By the 3rd section of the Act of 1853, as we have before said, no trustee is necessary, and she may hold both the legal and equitable title, and, under the 2nd section, she may have her remedy, in a court of law, as a feme sole, against the creditors of her husband unlawfully subjecting to the payment of his debts her sole and separate property.
And, in the case before ns, the complainant, Catharine, [270]*270might resort to her action at law. But ihe conclusion which the appellant’s counsel draws from this construction of the Act of 1853, by no means follows. The Act gives her a remedy at law, but does not deprive the court of equity of the jurisdiction which it before had. That is expressly reserved by the Act, its plain design being to enlarge, not to restrain, the remedies of femes covert. See 1 Md. Ch. Dec., 151, 154. 8 Gill, 391.
(Decided July 15th, 1859.)
The only remaining objection to the decree below, urged by the appellant’s counsel in his argument, is, that the husband, Peter McKenna, is not a party to the proceedings, either as co-plaintiff or as defendant. The rule on this subject is plainly stated in the 63rd sec. of Story’s Eq. Pl., relied upon by the appellants. It is there said, “ she ought t.o sue as sole plaintiff, by her next friend, and the husband should be made a party defendant, for he may contest that it is her separate property, and the claim may be incompatible with his marital rights.”
This objection was not made by the respondents in the court below. The bill was originally filed by Catharine, in her own name. The objection was made in the answer that, being covert, she could not sue in her own name. The Circuit court thereupon ordered the bill to be so amended as that the complainant might sue by her next friend, and the amendment was made. However proper it would have been, according to the established rules of practice, to make the husband a party defendant in the cause, we think the decree ought not to be reversed by reason of such an objection, urged, for the first time, in the appellate court. The proceedings clearly show that, in this case, he would be a mere nominal or formal party, and the “ non-joinder of such party will often be dispensed with, if entire justice can be done without him.” Story’s Eq. Pl., sec. 229. See, also, secs. 221, 542. 2 Gill, 319.'
Decree affirmed with costs.