case mile versus williams et ux follow lockwood v salt a b ad Chubb v stretch  l r Eq see now marry woman property Act pound Vict c Mod resolution of the  court of b r that the debt of the wife dumb sola be discharge by the  bankruptcy of the husband and that debt due to the wife dumb sola though  unrecovered be assignable by the commissioner on the husband bankruptcy per  stat Ann cap and that the plea upon that act must conclude to the country in  ex part Blagden rise however it be hold that a debt due to the wife dumb sola  can not be set off against a debt from the husband on his become bankrupt  under si Geo c mile bring debt versus baron and feme upon a bind enter into by  the feme dumb sola the defendant joint plead in bar quod to express grief  action non c and say that after the intermarriage sure in September year Ann  William the husband become bankrupt infra intention separal set up contra  decoctor edit et to will and that a commission supr separal set up decoctor  issue under the great seal bear date tali die and direct to m king and t a c  afterward sure tali die the say William voluntary surrender himself t the  major part of the commissioner and from time to time submit himself to be  examine upon oath by the say commissioner et in omnibus see to form ad set up  Ann entitle a act to prevent fraud frequent commit by bankrupt et ad in all  respects all set up contra decoctor edit et such idem Johannes et Eleonora  vigor stat predict to grow progressively prfat dict dom queen nunc edit to say  quoad causan action predict to grow progressively prfat mile before idem  Johannes William come to decoctor et hoc parat are verify unde pet jud si  predict mile action c peer William the plaintiff demurrer and show for cause  that the debt arise upon a bind make by the wife dumb sola be not discharge by  the statue mention in the defendant plea and also that the plea ought to have  conclude to the country the defendant join in demurrer and after several  argument in this case Parker c I have state the record at large deliver the  resolution of the court the two great question which have be make in this case  be saint whether this be a debt on a bind give by the wife dumb sola be such a  debt as shall be discharge by the bankruptcy of the husband by virtue of the  statute of Ann cap mention in the plea dly whether the defendant have well  conclude their plea or not it be to the judgement of the court and not to the  country as to the first we be all of opinion that it be a debt within the act  the word of the clause upon which it depend be sect that the bankrupt shall be  discharge from all debt by he due and owe at the time he become bankrupt and  then in case he be sue for any such debt the act direct that he shall and may  plead in general that the cause of action do accrue before he become bankrupt  peer William upon these word the immediate question be whether this be a debt  due and owe by the husband at the time he become bankrupt it be say and I  think admit at the bar that a debt due by the wife and one due to the wife  dumb sola must fall under the same consideration this be very reasonable and  therefore I have consider how far a debt due to the wife will be within this  act to be assign by the commissioner of bankruptcy peer William er p and in  order to understand this it be necessary to go back to the former act vide  Bosvill v Brander post Saddington V kinsman bro c c Elizabeth cap enact that  the commissioner shall take order with the bankrupt body land and tenement as  well freehold as copyhold good chattel debt c and sell the same c then come  the statute of James cap which recite that the authority give to the  commissioner by the former act be not full and perfect for further remedy give  they sect power to grant and assign all debt due or to be due to and for the  benefit of the bankrupt and the same to be recover in the name of the assignee  now I take the intention of these law to have be that the bankrupt have be  guilty of a fraud shall not be trust any more with the management of his  estate but that it shall be put into other hand for the safety of his creditor  and than the bankrupt shall have no further intermeddle therewith so that upon  this intention all those effect and debt peer William which he can take in or  turn into money the assignee be design to have in as full a manner either by  action or otherwise and that in their own name the best rule of construe act  of parliament be by the commonlaw and by the course which that observe in like  case of its own before the act thus it be upon the statute de gift which enact  that tenant in tail non to have power to make strange property to prevent  their come to the issue and that a fine levy by he Self jure sit nullus now  the effect of this statute be a disability to alien to the prejudice of other  therefore the law rank the person incapacitate thereby with bishop and other  ecclesiastical person and with husband who be by the commonlaw disable to  alien to the prejudice of their successor and wife and therefore though the  word be that tenant in tail shall not have power to alien and that his fine  shall be void vet it have be construe that a fine by a tenant in tail be not  mere void but make a discontinuance thereby put the issue to his formedon and  that other alienation either put the issue to his action or allow of his entry  just as the law stand before in relation to bishop c at commonlaw it be a  general rule that no body can have a action but the creditor or if he be dead  his representative but there be two case wherein this title fail videlicet in  the case of a forfeiture and of a assignment to the king for though a choose  in action can be assign to a common person yet it may to the king and in both  these case the king or his grantee peer William or assignee may sue for those  debt in their own name h vide earl of Stafford v Buckley ves though general  the grantee sue in the king name but that be only in order to take advantage  of the prerogative now let we see how far the wife debt be liable in these  case in the case of forfeiture as by outlawry c the debt of the wife be always  extend and seize in the case of assignment of debt to the king queen v  Thornton Parker hob be a authority in point and that notwithstanding the throw  cap which make assignment of debt void other than such as grow due original to  the king debtor good fide for the purpose of that law be that no debtor of the  king shall procure another man debt to be assign which be the common practice  but this say the book be his own debt though not to his own use which he may  himself release and discharge and by the same reason may assign this prove two  rhinos saint that the husband may assign these debt by the commonlaw dly that  he be not restrain from do it by the statute because they be the husband own  debt this reason conclude the case at bar saint as if be the husband own debt  within the word of the act peer William dly that as the husband may assign it  ergo so may the commissioner beside it be to no manner of purpose and can  serve no good end at all to say that such debt be not assignable for if they  shall be leave in the husband as soon as ever he recover they the commissioner  must have the money and apply it to the use of the creditor but in order to  confine the sense of the word debt due and owe to he it have be peer William  er p object saint that the statute do not extend to debt due to a bankrupt as  executor reps this be true but it be for this particular reason because they  be appropriate to pay the debt of the testator and if they be assign it will  be a wrong videlicet a devastavit dly it have be object that the statute do  not extend to debt due to the bankrupt joint with another resp the case cite  for that purpose from lev be not determine such debt may be assign to the king  by any one of the creditor and so it be adjudge mich h and it will be forfeit  by the outlawry of one however that case be not before we thus far be plain  that a debt due from he and another will be within this act of Ann for it be  so declare by the declamatory act of annae cap sect which provide at the same  time that the discharge peer William of the bankrupt shall not extend to  discharge the other joint debtor but this of a husband and wife be a different  case for it be his debt as lie be on with her but it be contend that the  bankruptcy ought not to give the husband a better right in his wife debt and  bar hereof her contingency of survivorship see jacobson v William post Mitford  v Mitford Ves resp it do not give he a better tie for his release for a  consideration to himself alone will have bar her of the contingency and this  be a release in law and amount to the same thing beside this be answer by the  fiction of law whereby the statute of James cap and this statute have make it  as a debt and a new security to the assignee suppose a bind be make to a in  trust for b who become a bankrupt the assignee may bring the action in their  own name though b must have bring it in the name of his trustee contra ex part  Coysegame atk object the husband must join with the wife in this action but  the assignee can do it resp this be answer as before and by the case of  forfeiture and assignment to the king but to put another case suppose a bill  of exchange be make to the wife dumb sola the husband may assign it and the  assignee shall bring the action in his own name this reason hold strong in the  case of debt due from the wife for peer William saint certain it be the  husband debt and the action must be bring in the debet and to hold off it be  admit to be the husband debt after judgement and it be hard to say that a  judgement of law charge a man with a debt who be not Chargeable with it when  that judgement be give against he dly if the intent of the act be consider and  the question askedcui good it will appear still strong the person concern in  this matter be saint the bankrupt dly the creditor dly the wife as to the  bankrupt if a action be bring against he on such bind what execution can the  plaintiff have if he take a be made fa or elegit as soon as he find good or  land the commissioner ought to seize they this will be whole ineffectual and  if he take a capias it will only serve to lie the bankrupt up in prison when  all mrs estate wherewith he shall make satisfaction and deliver himself take  out of his power and that be the reason of his be discharge way because his  ability to pay be entire take from Mm and this distinguish it from the case of  a executor and show that he ought to be discharge as to the testator debt for  he retain his ability to pay they by keep the effect which he have as executor  and the commissioner can meddle with they because they be appropriate see ex  part Ellis atk peer William it be insist at the bar that he ought to be  discharge from all his debt because he be oblige to part with all his estate  liable to pay those debt but this take it up much too short for he be not only  oblige to deliver up all his estate liable to pay debt but all whatsoever  wherewith he may pay his debt as for the purpose copyhold land which be liable  to no execution dly as to the creditor it can be for his benefit that this  debt shall not be within the act for the peer William er p bankrupt whole  estate will be otherwise dispose of and his action against the bankrupt can be  worth nothing but if this debt be within the act then may he come in for his  dividend the consequence of the contrary opinion be that you take from he  every thing wherewith his debt may be pay and at the same time will not let he  in for a share dly as to the wife it will be a discharge to her at least a  temporary one videlicet during the husband life but though it be not necessary  to give any opinion upon that yet I think it will amount to a perfect release  and the wife will be discharge for ever but no harm can arise from this for  the creditor be suppose to have have his dividend and the debt be pay in  consideration of law peer William a case may possible be put where a woman be  in debt may make over all her effect in trust and then marry a bankrupt and by  that discharge all her debt and yet preserve her estate but that will be a  fraudulent conveyance as against creditor quoad so much of the estate as will  satisfy their debt and for that they may have remedy it be object that this  discharge be a personal privilege and not communicable to the wife resp it be  a necessary consequence that it must extend to her because every thing in the  husband power be assignable and all her estate be in his power if the husband  be possess of a term for year in right of his wife it may be sell on a be made  fa and yet it be not actual transfer to the husband by the intermarriage Inst  b and a husband may dispose of a term which his wife take as administratix  Thurstout v coppin Bla will S c for these reason we be all of opinion that  this be the husband debt within the meaning of the statute as to the second  question videlicet whether the plea be good or not see tower v Cameron east we  be likewise all of opinion that it be in not to conclude to the country a  liberty of plead general be give to the bankrupt and so he may avoid the  hazard of plead special but then he must take upon he the proof of his  conformity to the statue in every particular or if he think fit to plead the  matter special then he must set forth every point and by it he have this  advantage against the plaintiff that he must reply one particular only upon  which issue must be take peer William here the defendant have plead the matter  special but not set forth the whole and therefore it be ill for that reason  for by the express word of the act this be to be plead so as that the whole  merit may be try there be several case at commonlaw where a man shall conclude  his plea to the country though there be no affirmative and negative to prevent  the inconvenience that will arise by go on to a replication as in h to a fine  quod party Finis nothing to have et de hoc to put down see super native land  so in a counterplea of a voucher that he be never seize of such estate whereof  he can feoff he et hoc petit c and the reason of this be for that it will be  inconvenient to go on to a replication because to reply general will leave it  too large and comprehensive and to reply any particular kind of estate will be  too narrow and consequent immaterial this statute have form a new general  issue in this case and this be the foundation of the judgement in bird and  Lacy case mich annae c b rot that a plea upon this act be well conclude to the  country and if so it can conclude to the court it may be observe on the  statute of sewer h cap that by the word of that act a general replication be  express give to avoid the force the plaintiff to a single point and so the  mischief which will be in this case be prevent thus it must have be in this  act if it have not be the intention of it to make the plea a general issue  peer William for this fault in the plea which be show for cause of demurrer  and which will put a difficulty on the plaintiff not intend by the statute  judgement must be give for the plaintiff peer William er p