| Md. | May 22, 1873
delivered the opinion of the Court.
The appellee, a feme covert, by her next, friend, sued the appellants in trespass de bonis asportatis. It appears that the appellant, Strasburger, had recovered a judgment for $41.33 against W. T. Barber, plaintiff’s husband, and caused a writ of fieri facias issued thereon, to be levied by McLaughlin, a constable, upon certain goods in a store, alleged to be the separate property of Mrs. Barber, by whom the store was carried on. The goods seized, were removed from the store; and about one month thereafter, were returned to her possession by the appellants.
The case was submitted to the jury upon instructions contained in the plaintiff’s prayer, and in the second, third, fourth and eighth prayers of the defendants which were granted. We find no error in these instructions, they left the questions of fact in dispute fairly to the jury, and stated correctly the rule or measure of damages.
It has been said in argument, that the fifth clause of the plaintiff’s prayer, and the third prayer of the defendants, are inconsistent with each other, and it was error to grant them both ; but the appellants counsel have failed to point out any inconsistency between them.
By the defendants’ third prayer, the jury were instructed that if they should find the goods had been restored to the plaintiff, the proper measure of damages is not the value of tlie .goods seized; but only such damages, if any, as she may have sustained -by reason of the taking and detention of the goods, and the injurious consequences thereof\ if any, from the date of the seizure until their restitution. And by the second prayer, the jury were instructed that the plaintiff could recover only the actual damage-suffered, provided the jury should find, that the defendant caused the officer to take them, under a bona fide claim of title and right under the law, and without any malicious motive or purpose to harrass or injure the plaintiff. We think these instructions were correct, and find no inconsistency in them.
'The acceptance of the goods by the plaintiff did not deprive her of the right of action, and therefore the defendant’s sixth prayer was properly rejected.
The fifth piayer claimed exemption for the defendants, on the ground that the goods had been restored to and accepted by the plaintiff “on condition that she would release all action and claim, for damages by the seizure of the same.” The objection to this prayer is that there was not evidence to support it. The paper offered in evidence signed “ M. A. Barber, per W. T. Barber, agent” purports only to release McLaughlin, the officer; even if it were effectual for that purpose, it could not operate as a release to Strasburger ; the fifth prayer was, therefore, erroneous, as it claimed exemption for both defendants.
The seventh prayer raises the question of the right of the plaintiff to sue by next friend, and without her husband joining in the action as plaintiff. The same question is presented by the demurrer to the declaration. The counsel for the appellants contend that the common law rule prevails, and “that the husband and wife ought to have sued jointly.” At the common law, the.wife could not sue in an action of this kind ; nor could she sue jointly with her husband where, as in this case, “the cause of action had its inception as well as completion after marriage;” in such case the husband must have sued alone, the legal title being vested in him virtute mariti ; and, if in such case the wife were joined as plaintiff, the declaration would be bad on demurrer. 1 Chitty Pl., 74, m. (11 Am. Ed. 1851.) Our statutes have materially changed the laws relating to the rights of married women, with respect to property. Under the Code she may be seized of the legal estate in lands, and be vested with the legal property in personalty, and hold the same to her separate use without the intervention of a trustee. And her legal remedies have been changed and modified for her benefit and protection. The Code, Art. 45, sec. 4, provides that “a married woman having no trustee, may by her next friend sue in a Court of Law or Equity in all cases for the recovery or security or protection of her property, as fully as if she were a féme sole.”
We think, under this provision, the appellee is clearly entitled to maintain the present suit. She might sue in replevin, by next friend, for the recovery of her goods; for that would be within the express words of the Code ; and in our opinion it w'ould he giving too narrow a construction to the language employed, to deny to her the right, in a proper case, to maintain trover or trespass ; these come within the spirit and intent of the law.
Judgment affirmed.