delivered the opinion of this court.
There is no dispute in regard to the facts in this case. The bill, in substance, states, — and its allegations are admitted by the answers and the agreement filed in the cause — that the appellant, at the time and prior to her marriage with the defendant, Wiles, was the owner of a chose in action, due and owing to her by the defendant, Ramsburg; that after the marriage and the birth of a child, her husband, on the 20th day of September 1849, applied for the benefit of the insolvent laws, and that the defendant, Keller, was appointed his permanent trustee. The bill also states, that Wiles is wholly insolvent and unable to provide for the support of his wife and children, and that the note is the only means of support of complainant and her children; and that the trustee of her husband is seeking to recover this note, and prays an injunction to restrain the trustee from proceeding to collect the note, and for a suitable provision, out of said note, for herself and children.
The question for this court to determine is, whether she be entitled to the relief sought?
On the part of the appellant it has been insisted, that in all cases where the trustee of an insolvent debtor is seeking to recover the chases in action of a wife, not reduced into pos*8session, and when it appears that the husband is insolvent and unable to support his wife and children, a court of equity will interfere and restrain the trustee by injunction, until he makes a suitable provision for the wife and her children.
There is no doubt of the general proposition, that where a husband, or his assignee, asks the intervention of a court of equity to' obtain the possession of a wife’s- personal property, the court will require him to do what is equitable, by making a suitable provision out of it for her maintenanc.e and that of her children; and if the fund be under the control of the court, she0may proceed by original bill. Duvall vs. Farmers Bank of Md., 4 Gill & John., 282.
But the doctrine contended for on behalf of the appellant; extends beyond this principle. It, in substance, asserts, that a court of equity will restrain a husband, or his assignee, from collecting a legal chose in action, even where it is not necessary for him or his assignee to invoke the aid of a court of equity, until such time as a suitable provision be made for the wife. The propriety of such- a doctrine is strongly urged by the reasoning of learned jurists, but we have not been able to find, with but one exception, that it has ever been so decided.
The subject has undergone a very full review in many cases, both in England and this country. The principal cases in which it has been considered in this country, have been very carefully brought together in the notes to the case of Murray vs. Lord Elibank, 65 Law Lib., 329.
Speaking of the wife’s equity, Chancellor Kent, in vol. 2, page 141 of his Commentaries, says: It “does not, according to the adjudged cases, attach, except upon that part of her personal property in action which the husband cannot acquire without the assistance of a court of equity.” And that “if the husband can acquire possession without a suit at law^or in equity, or by a suit at law, without the aid of a court of chancery, (except perhaps as to legacies, and portions by will or inheritance,) the husband will not be disturbed in the exercise of the right.”
This, we take it, is the substance of the principles estab*9lisfaed by the adjudged cases, both in England and this country. It is true that learned jurists have suggested the inquiry, whether a court of chancery ought not, on just principles, to restrain the husband from availing himself of any means, either at law or equity, of possessing himself of the wife’s personal property in action, until he makes a suitable provision for her. indeed some of the courts have gone so far as to say, that if it were in their power to do- so, and the circumstances of the case required it, they would enforce by their decision such a doctrine. But in none of the cases in which this opinion is expressed, with the exception of the one in 1 Kelly, is the case presented which required the application of such a principle. They were all cases of which the court had an equitable cognizance; and it is clear, that whenever the jurisdiction of a court of equity properly and legitimately attaches to the fund, or to the subject, it is competent to provide for the wife out of the fund. In all the cases, with the exception already mentioned, cited by the counsel of the appellant in support of his view, a court of equity, as such, had jurisdiction over the subject matter. They were either cases of trust; of distributive shares, account, legacies, or where the husband had abandoned his wife, refusing to contribute to her support. In the latter case a court of chancery has the right to grant alimony, and until the assignee of the husband actually reduces into possession the chases in action of the wife, her right of survivorship exists, and a court of equity will interfere to provide her alimony, if her life has been such as to entitle her to its protection.
The case of Bell, et al., vs. Bell, 1 Kelly, 637, undoubtedly establishes the proposition, that the wife’s equity attaches upon her legal dioses in action, and will be protected by a court of equity, irrespective of the necessity of its aid to enable the husband, or his assignee, to reduce them into possession. Although we fully appreciate the ability and legal erudition which the learned judge in that case employs to sustain his position, we are unable to agree with him in opinion as to the purport of the decisions on which he relies.
*10We have seen that Chancellor Kent has not deduced the same conclusion from the adjudged cases. And Mr. Clancy, whose authority is also invoked by the court, in Bell vs. Bell, while he insists there is no just ground upon which a court of equity should decline to interfere in cases, where the husband is seeking to recover the wife’s legal choses in action, nevertheless admits, that the prevalent spirit of the cases is against it. Clancy on Married Women, B. 5, ch. 2, pages 466 to 470. We concur with the court in Thomas vs. Sheppard, 2 McCord’s Ch. Rep., 36, that however wise and proper such an exercise of power may be, it does not become the courts, from a spirit of knight-errantry, to extend the principle beyond its well defined limits. That duty, if there be a necessity for its performance, belongs to the legislature.
But whatever may be the views of lawyers elsewhere, we consider the question settled in Maryland, by the case of the State vs. Krebs, 6 Harr, & John., 31, in which it was distinctly held: “that wherever a husband can come at the estate of the wife, without the aid of a court of chancery, that court cannot interfere in her behalf.”
In the case now under consideration, the chose in action is of a legal and not of an equitable character, and as such, the remedy of the husband, and consequently that of his trustee under the insolvent law, to reduce it into possession, is in a court of law. In no manner is the aid of a court of equity required to effectuate this purpose. If the debtor had voluntarily paid it to the trustee, the latter would have been competent to have given a discharge. Under our insolvent system, on the application of the husband for its benefit, all his right passed to his trustee, and if he succeeds in reducing the particular chose involved in this controversy into • possession, it will be distributed in a court of law and not a court of equity. Carter vs. Dennison, 7 Gill, 157, and Pierson vs. Trail, Trustee of Miller, 1 Maryland Reps., 142.
Decree affirmed.