case mile against williams see S c p wms e r with note if debt be bring  against a man and his wife on a bind by the wife dumb sola they may plead a  discharge by the bankruptcy of the husband but if the plea conclude hoc  prepared are verify it be have on a special demurrer for it shall have  conclude to the country S c post S c pale yellow S c Peer wms debt upon bind  bring against the defendant and his wife they plead in bar that the bind be  enter into by the wife dumb sola that a commission of bankruptcy issue out  against the husband who in all point conform himself to the statute about  bankrupt and so both defendant say that by virtue of the statute he become a  bankrupt per quod the debt be discharge et hoc prepared are verify to this  plea the plaintiff demurrer special first because a bind enter into by the  wife dumb sola to be be not discharge by the bankruptcy of the husband second  because they ought to have conclude their plea to the country modern report Mr  Salkeld for the plaintiff argue that at the commonlaw no person modern report  er p be allow to avoid action by plead disability in themselves a beverley  case cro Elizabeth   the follow case be also quote in the argument yearbook  Edward pl Fitzherbert Abr c draw v horn Allen ludlam v Brownhill a that proper  speak no man can be say to be a debtor but ex his shrinking it be not pretend  that a executor will be excuse and discharge by this statute of all debt he  stand charge with as executor and yet the executor be as proper a debtor as  the husband in this case marriage not at all alter the nature of the contract  for it be not in the power of the wife by any act of she to dissolve her own  contract nor can the husband for he be a three person this indeed the husband  can do be can make himself liable and this he have do ration marriage but this  hinder not but that the wife may still remain Chargeable ration shrinking if  the husband die his executor be not Chargeable with this debt and if the wife  die the husband be not liable which plain show it to be proper the debt of the  wife in the case of revel v grey a hob a it be resolve that a debt of the  husband and a debt of the wife can be join in one action bring against husband  and wife which certain they may if so be that after coverture the debt of the  wife be in a strict and proper sense the debt of the husband in the case of  Boylston v Radcliffe b lev S c raym b a and b be oblige in a bind one of they  become a bankrupt and it be resolve that this debt be not assignable if this  bind have be make to husband and wife it have reach the equity of the present  case for it seem plain against equity that a debt due from the wife shall be  discharge by the bankruptcy of the husband and yet that the creditor of the  husband can have the benefit of debt due to the wife modern report and though  chattel personal can remain in jointure after marriage yet choose in action  may the husband can sue alone upon a bind give to the wife dumb sola which  prove it a debt still due to the wife as the nature of the contract be not  alter by the marriage but only the power of the wife suspend so neither be the  nature of the contract alter by bring of the action but indeed after judgement  transit in remember judge and it be the judgement that give the husband a new  right and will make it go to his executor but sure the court will never esteem  a act of bankruptcy of equal force with a judgement the plea ought to cover  the wife as well as the husband but the wife be not a bankrupt because the  husband be so for by the law of England the wife shall share in the honour and  advantage but not in the pnis et sin of her husband a man covenant not to sue  husband and wife upon a bind enter into by the wife dumb sola during the life  of the husband afterward contrary to this agreement he put the bind in suit  this covenant can be plead in bar but must be plead in abatement only it be  further insist upon that no plea can be good for the husband and wife but such  a plea as will have be good for the wife have she remain unmarried Mr  fortescue for the defendant insist that what be due to the wife be in the  strict sense a debt belong to the husband for the very definition of a debt  accord to Bracton a bract lib cap a be what a man can recover by action and  that to his own use the last part of the definition be what he chief rely upon  as that which distinguish it from the case of Boylston v Radcliffe abjut the  joint oblige and also from the case of a executor who modern report sue jure  reprsentationis in another jure and recover not for himself but for another  use in calvin lexicon a debtor be define to be one that may be sue against his  will and so may the husband against a executor who be sue as such the action  must be in the to hold off only for the word debet will not be true since he  be not sue for his own debt but the testator whereas a action bring against  husband and wife must be in the debet and to hold off which show that the law  of England upon marriage consider the debt of the wife as the debt of the  husband b yearbook Henry pl Edward pl b in this case no remedy be to he have  against the wife she can be take in execution and therefore the husband who  alone be liable to execution be debtor a release by the husband in case of a  debt to the wife will be a release in his own right whereas a executor release  in another jure c hale analysis of the law page c so when the husband sue he  sue in his own right derive to he modern report er p from the marriage d  yearbook Edward pl d it be true that a debt due upon a bind make to the wife  dumb sola will unless recover by the husband survive to the wife but from  thence it necessary follow that this must have be a debt vest in the husband  at the time of his death accord to the rule among jointtenants that nothing  accrue to the survivor but what be in jointure at the time of the death of his  companion nothing to grow progressively ei who nothing to have in re unde to  grow progressively law if now a debt due to the wife dumb sola do vest in that  be become due to the husband by a parity of reason a debt due from the wife  dumb sola ought to be esteem a debt from the husband that be a debt of the  husband nor be it any objection against its be esteem his debt that he be  Chargeable with it during his life only for as a feoff make by tenant in tail  create a feesimple though it be possible the feesimple may modern report last  but a hour so though the husband be only Chargeable with this debt during his  life yet as long as he life it be his debt choose in action be assignable e  yearbook Henry pl e by the statute James c debt for the benefit of the  bankrupt be assignable then it be argue that there be no inconvenience in make  the debt due to the wife assignable for this be no harm to the wife since she  know that the husband have power to receive or assign her interest f cro vent  keb f but great inconvenience of the other side by enable the bankrupt to  shelter all his estate by assign it in the name of his wife and so put it out  of the power of the commissioner of bankruptcy suppose in case of such a  assignment the bankrupt will not because it be not for his interest and the  assignee of the commissioner can sue what become of the estate in the mean  time if then debt due to the wife be as well as other debt due to the husband  assignable to the commissioner common equity require that debt due from the  wife shall be discharge by the statute of bankruptcy as well as those that be  due only from the husband this construction be even advantageous to the  plaintiff by prevent he from sue a bankrupt one that he can get nothing by  unless he be a felon which be not to be suppose it be something strange that a  man shall be both a bankrupt and not a bankrupt at the same time a bankrupt as  to his own estate but not as to his wife it be observe from the clause in the  Act whereby it be criminal for bankrupt to conceal money or effect whereof any  person in trust for they stand possess that it be plain that the bankrupt be  bind to discover a bind enter into to the wife dumb sola and if he be bind to  discover then it must be assignable modern report and consequent by parity of  reason a bind debt from the wife dumb sola must be discharge reply for the  plaintiff the case of the release be not to the purpose for it must be a  release of all demand and that will release the debt to the wife because the  husband only can demand it but a release of all action will not release it a  yearbook Henry pl a a bind give to a feme sole be not forfeit by the outlawry  of the husband b Noy b as to the case of a bind give to a feme sole who marry  and her husband die it be a improper expression to say the bind survive to the  wife it do indeed remain to her it be true that debt in trust for the bankrupt  be assignable but sure it do not from thence follow that a bind enter into to  the wife dumb sola be so for such a debt can never be say in the original or  creation of it to be a debt in trust for the husband and if such a bind be not  discoverable it be not assignable and by parity of reason this debt be not  discharge as to the inconvenience pretend that this will open a way to shelter  a estate under the wife name the answer be easy that that can never be do  without fraud which will vitiate the whole contrivance sir Thomas powys late a  judge in the court of king bench desire the next time this case be speak to  that it shall be more distinct argue whether upon supposal that a bind make to  the wife dumb sola be assignable to the commissioner it do necessary follow  that the bankruptcy of the husband will discharge a bind give by the wife dumb  sola Adjournatur c this case be argue again in Trinity term the thirteenth of  queen whether and the court be of opinion that this be a debt provable under  the commission of William and consequent that it be discharge by his  certificate but judgement be give for the plaintiff because the plea ought to  have conclude to the country and not with a verification post c modern report  er p