Clark v. Manko

Fowler, ]., delivered the opinion of the Court. The sole question here presented is whether a married woman trading as a feme sole trader under the statute (Code Art: 56, section 36), is subject to and within the provisions of Code Art. 47, section 23, relating to involuntary insolvency. It has already been held by this Court in the case of the Building Association v. Schmidt, 55 Md. 97 , that the provisions of the Code relating to voluntary insolvency before they were amended by the Act of 1880, Chapter 172, did not apply to married women, and we are all of opinion, notwithstanding the able argument of appellants’ counsel, that the present law relating to involuntary insolvency, Article 47, section 23 of the Code, has no broader scope as to married women or feme sole traders. Prior to the Act of 1880, ch. 172, which amended the law as to voluntary insolvency, and added the provisions as now contained in the Code relating to involuntary insolvency, more than one ⁸⁰ attempt had been made in several of the circuits of this State to apply the then existing insolvent law to married women, but without success.

The very case here relied upon by both sides, Building Association v. Schmidt supra, in which it was held that married women were not within the then insolvent law, was decided in the lower Court more than a year before the Act of 1880 was passed. If the Legislature had thought it wise to do so, it could easily have removed all doubt. But neither prior to the Act of 1880, nor by that Act itself, nor since its passage has there ever-been any declaration of the Legislature that the insolvent law should include married women or feme. sole traders. It is fair, therefore, to infer that no such intention ever existed.

A large number of authorities were cited by the appellants to sustain their view, but we shall rest our conclusion upon the construction of our own statute, and the decision of this Court in the case before cited. And in view of the reasoning of this Court in that case it is, we think, evident that, whatever may be the rule elsewhere, we cannot agree to the contention of the appellants, that the necessary result of removing the disabilities of married women is to abrogate all rules based on such disability, and to bring them within the provisions of the insolvent law. We held in Building Asso. v. Schmidt , that notwithstanding the several acts relating to married women, which were passed for the purpose of-removing common law disabilities, and to enable them to contract debts and to sue and be sued at law, “ such acts can-in no manner extend the provisions or affect the construction of the insolvent law, as we find it in the Code.” We think the same language may be used in reference to the present insolvent law and the various laws now in force regulating the rights and liabilities of married women and feme sole traders. One of the Acts of Assembly we referred to in Building Asso. v. Schmidt , that of 1862, Ch. 49, in regard to feme sole traders which has been amended by the.

Act of 1880, Ch. 349, we there held did not have the effect here sought to be given to it by the appellant, that is ⁸¹ to say, to affect the construction of the insolvent law as we find it in the Code. It was argued, however, that what we said in 5 5 Maryland can apply only to the then existing insolvent law, as found in section 2, art. 48 of the Code of i860. As we understand the contention of the appellant it is that the view announced in 55 Maryland was largely, if not altogether, owing to the fact that the law then required a deed from the insolvent debtor to the preliminary trustee, and that a married woman not being able to make a valid deed without her husband joining therein, the law as it then stood was very properly held not to