The sole question presented is whether a married woman, being abandoned by her husband, can maintain an action in her own name for a tort. This question has not been heretofore decided by this court. The case is here upon complaint and demurrer and the allegations of the complaint are at present taken as true.
The complaint alleges that the defendant, who is the father of her husband, has, by persuasion and numerous wilful and unlawful acts, caused her husband to wholly abandon and neglect her, to her gi;eat damage, &c. The •demurrer is grounded on a denial of her right to maintain this action in her own name without the joinder of her husband.
The disabilities of married women at common law still *exist, as to their person and propertjq except to the extent *10of changes by legislation in express terms or by reasonable-construction of the same. These changes tend to relax the common law rules and must receive a reasonable construction in the spirit of their enactment. Our Constitution and statutes have made very material and important changes in the status of married women in this State, by extending-protection to their person and separate property and allowing them the privilege of free traders, suing in their own names &c., in certain conditions. The Code 1882 declares' that every woman whose husband shall abandon her “shall be deemed a free trader ... so far as to be competent to contract and be contracted with” &c. and this section has. been held to be constitutional. Hall v. Walker, 118 N. C., 377.
These privileges as well as those found in The Code 178, necessarily imply responsibilities and liabilities in certain cases.
Finley v. Saunders, 98 N. C., 462, was an action for possession of land against a wife, whose husband had abandoned her, and it was held upon good authorities that the-action could be maintained against her alone.
Heath v. Morgan, 117 N. C., 504, was an action for personal property unlawfully withheld by the wife, whose husband had abandoned her and could not be served with process, and it was held that the non-joinder of the husband was no defence. If a wife, then, whose husband has abandoned her, be sued in tort, she may set up a counter-claim for any damages- arising out of the same “transaction”, disclosed in the complaint, and if her damages exceed those of the complaint she is entitled to a judgment for the excess. Code 244; Bitting v. Thaxton, 72 N. C., 541; McKinnon v. Morrison, 104 N. C., 354.
If, then, she can recover damages by way of counterclaim, which is only her cross action, we fail to see why she cannot *11do so by direct action. Upon these cases, and upon reason, we think she is entitled to prosecute her claim in this action.
Error,