RICORD V. BETTENHAM. able in bar (m), and concludes to the action, not merely to the writ; Co. Litt. 129 b. 'Tis true he adds, donec terra fuerit communis: but the first opinion is supported by authority, the latter not: 19 Edw. 4, 6, pl. 4 & 6; Bro. Denizen and Alien, 20; Comb. 394; Carter, 191; Cro. Eliz. 142. We do not dispute, but that a ransom is both lawful and prudent. The question is, how it is to be secured? Certainly not by contract, because the parties are incapable of contracting. This accounts for the practice of taking hostages. The hostage is the only security. Therefore sons, brothers, &c. are usually taken.2. If the hostage be the only security, then it is released by his death. The paper writing only specifies, upon what terms the hostage is taken and may be detained. The hostage subscribes the paper; but certainly enters into no contract to pay the money. He had an interest in declaring the purpose of the instrument. In this case duress may have some weight, so as not to lay too great a stress upon the * form of the contract. The instrument does not imply a bind- [ * 567 ] ing contract upon each other: If so, the delivery of an hostage is unnecessary. No body ever yet dreamt of resorting to any other security. I have looked into Grotius and Puffendorff: they sometimes say, that the hostage is the substantive, sometimes the collateral security: they do not accurately distinguish. Molloy. 1. 1, c. 8, s. 7, is express, that if hostages are given, he that gives them is free from his faith, &c. No authority to contradict this on the other side. And should a remedy be given to foreigners here, it would be on very unequal terms; since other nations will not allow it to us. Chambers in reply.-Les coutums de la mer-ransom bills drawn by the captain shall be accepted by the owner. So the ordinances of Louis XIV. Zouch, de jure and judicio feciali, p. 2, c. 54; Grotius, 1. 3. In the declaration the capture only is declared to be in time of war, not the contract. The fiction of locality will also protect it. After peace, the enemy may sue. An outlaw cannot sue till after reversal, but then he may. So of Popish recusants when reconciled. Case in Chancery; bill for account by an alien enemy: The defendant pleaded alienage: Lord Chancellor over-ruled the plea. (Qu. by ASTON, J.--Whether he was not resident?-by MANSFIELD, C. J.-That was to get rid of an unfavourable plea, which a Court of equity always leans against. If just, he might have the advantage after answer). Suppose the plaintiff had married an English wife in time of war, could he not now have recovered her fortune? Barbeyrac, in his commentary, has cleared Grotius from the imputation of inconsistency. * Dunning, in answer to the citation from the Coutums de la [ * 568 ] (m) Brandon v. Nesbitt, 6 T. R. 23; Casseres v. Bell, 8 T. R. 166. In the former case, Lord Kenyon observed, that though it was held in Ricord v. Bettenham, that the action by an enemy on a ransom bill might be maintained, the action was not brought RICORD v. BETTENHAM. [ *569 ] mer, allowed, that the owner ought to redeem the hostage. That question is merely between the owner, the master, and the hostage; between whom, and whom only, we allow a contract to subsist. Lord MANSFIELD, C. J.-There is no doubt, but the master has a power to contract, so as to bind his owners (n). These ransom bills seem equally for the benefit of the captors, who are thereby enabled to pursue and take other ships, and of the vanquished, who are thereby released at half value. But if it be true, that no action of this sort is allowed in other countries, it deserves to be well considered before we establish the precedent. Otherwise upon principles I have no doubt. Blackstone, who was retained for a second argument for the defendant (against Norton, Attorney-General, for the plaintiff,) thereupon offered to make enquiry in the next vacation into the practice of France and Holland. Lord MANSFIELD.—Let it therefore stand over upon the single point of that enquiry. Afterwards, in Michaelmas Term, Blackstone acquainted the Court, that he had stated the case to M. Meerman, Pensionary of Rotterdam, and M. de Beaumont, Avocat du Parlement de Paris: That the former had informed him, that the case had never happened in their courts; but that he and all the lawyers of that country, whom he had consulted, were of opinion, that such an action would be sustained in their courts: That M. de Beaumont (to whom the case was stated as between an Englishman and a Spaniard) was entirely of the same opinion; and added, that the very case had a few years before been decided in the Parliament of Normandy in favour of the captors, under which the parties acquiesced. * Lord MANSFIELD, C. J.-I imagined the enquiry would turn out as it has done. Ransom bills are to be encouraged, as lessening the horrors of war. Justice ought in time of war to be administered to foreigners in our Courts in the most extensive and liberal manner, because the Crown cannot here interpose, as it can in absolute monarchies, to compel the subject to do justice, in an extrajudicial manner. (n) This observation is not applicable, for here the action was against the master. A promise by a captain of a ship on behalf of his owners, when the ship was taken, to pay monthly wages to one of the sailors, in order to induce him to become a hostage, is binding on the owners, although they abandon the ship and cargo (Buller, J., dissent.); Yates v. Hall, 1 T. R. 73, where the subject of ransom bills is discussed. So the owners are liable for necessary supplies furnished or repairs done by the master's order; Webster v. Seekamp, 4 B. & A. 352. (0) There were similar decisions in the cases of Cornu v. Blackburne, 2 Doug. 640, and Anthon v. Fishar, 1d. 649, n.: but in the latter case, the judgment was reversed Postea to the plaintiff (0). on error in the Exchequer Chamber, where the Court unanimously determined, that an alien enemy could not, by the municipal law of this country, sue for the recovery of a right claimed to be acquired by him in actual war; Ibid. And Ld. Alvanley, in Furtado v. Rogers, 3 Bos. & P. 200, observed, that no action was ever maintained upon a ransom bill in a court of common law until the case of Ricord v. Bettenham, and that he had the authority of Sir W. Scott for saying, that in the Admiralty Court the suit was always instituted by the hostage. But now all questions on the law of ransoms are put an end to by 22 G. 3, c. 25, which enacts (s. 1) that it shall not be lawful for his Majesty's subjects to ransom or to enter into any agree ACTION of trespass for cutting his nets and taking his fish. Lord MANSFIELD, C. J.-The offence is committed contrary to a penal act of Parliament. The punishment must follow the method which the act prescribes. Water-bailiff may not cut un lawful nets, or seize fish. *WILMOT, J.-It was argued for the defendant, that this [570] was a nusance, and therefore he might abate it. But I think Violation of a a violation of a public penal statute is not a nusance, but an public law not offence of a different species. YATES, J.-The remedies of distress for damage feasant and abatement of nusances, are for private injuries. This is made a public crime. The act gives no power to seize fish or to cut nets. A new judicature for this offence is created by the staThe water-bailiff has no jurisdiction at all. ASTON, J., of the same opinion. tute. Judgment for the plaintiff. LA VIE and Another, Assignees, v. PHILIPS and Another, Assignees. S. C. 3 Burr. 1776. a nusance. A wife, being a sole trader in London, is liable to a commission of bankruptcy, and her assig nees shall come TROVER for five fans: Verdict for the plaintiffs, subject to this special case. 13th March, 1764, a commission of bankruptcy issued against John Cox, and assignment was made the same day; and, on 26th April, 1764, another commission is sued against Jane Cox his wife, who was a milliner. That, by the custom of London, as stated in the Liber albus," where a in, paramount "feme covert useth any craft in the city on her sole account, the assignees of "whereof the husband meddleth nothing, such a woman shall the husband; "be charged as a feme sole concerning every thing that touch- though his was "eth her said craft; and if the husband and wife shall be im- ruptcy. pleaded in such a case, the wife shall plead as a feme sole in "a Court of record, and shall have her law and other advan the prior bank LA VIE v. PHILIPS. [ *571 ] "tages by way of plea, as a feme sole; and if she is condemned, "she shall be committed to prison until she has made satisfac 66 tion, and the husband and his goods shall not be charged or "impeached." That, in this case, Jane Cox the wife was a sole trader, and carried on a separate trade in the city of London: That the fans in question were part of the effects of her sole trade; and that the assignees of the husband's commission seized them the day the commission issued, and the assignment made. * Eyre, Recorder of London, for the plaintiff, argued,1. That the assignees of the husband had no right to take these goods, in prejudice of the creditors of the wife. 2. That a commission of bankruptcy may, under the custom, issue against a feme covert. 1. At common law the state of coverture carried with it many disabilities, and many consequential privileges. It is a general rule, that a wife can't contract (a); but in case of necessaries she may: she may convey by fine (b); and the Queen consort may sue and be sued, take and dispose, &c. The same kind of politic capacity in this custom for London wives, if they carry on the trade on their sole account; Langham and Bowen, Hetl. 9, Littlet. 31, Cro. Car. 68. A wife may plead as a feme sole. Strange, if the interest to the husband could be affected where he is not called upon to defend it: therefore clear, that he has no interest. The wife is alone responsible: because it is her interest only, and not the interest of the husband. Not much light to be thrown upon this case from authorities. But there is, M. 29 H. 6, Eppings and Harding, cited Cro. Car. 68, in marg. The inference from this case is, that as the parties went to issue, "whether the wife was a feme sole merchant or no," it proves, that, if the fact was so, it was allowed to be a good custom. So, 21 Hen. 7, it appears from the argument of Palmes, that it was the idea of the times, that a wife may be a sole merchant. I allow, that if the husband will intermeddle, the wife would not be a sole trader in any future dealings; but insist, that his intermeddling without her consent shall not deprive her of her substance before acquired. Juxon and Juxon, 1 Atk. 278; a husband is not permitted in equity to deprive the wife of her sole earnings or savings. (Sed per Cur.-Atkyns must not be cited as authority). No intermeddling of the husband can deprive the wife's creditors of their remedy against the wife, nor unite the wife's property to the husband's. If the husband has any interest, it is only a remote possibility in the surplus after pay[*572] ment of the wife's debts. The seizing of the goods in the present case can be justified on no other principle, but denying the custom; or by maintaining, that the husband has a property in the goods of the wife. 2. The only question left is as to the right of the plaintiffs under the wife's commission of (a) See Hatchet v. Baddeley, post, 1079; Lean v. Schutz, post, 1195. bankruptcy: and as to that, if the wife has a separate property, it follows that it must be liable to the remedy of her separate creditors. LA VIE v. PHILIPS. Dunning, for defendants.—I dispute not the validity of the custom. The question is only on the import and extent of it, which is equally new and important. Husbands in London have every marital right, unless restrained by the custom. One general marital right is, that the goods of the wife are the property of the husband. This custom does not abridge it, but only gives him a peculiar privilege to be exempt from the contracts of the wife. The property remains in the husband as fully as at common law, except that it is liable to the sole debts of the wife. It is convenient to trade, that the wife should sue and be sued; but no reason, that (subject to this control) the husband should not have the ultimate property. It is difficult to shew, why, if the husband has any interest in the subject, it should not be liable to his debts. Customs are stricti juris: if they have clearly obtained, the law allows them; but it will not allow any consequential effects, however reasonable, if not within the terms of the custom: 1 Roll. Abr. 567; 2 Leon. 109. This is a right of suing or being sued as a feme sole, that can only be taken notice of in the city courts: Moor, 135; 1 Leon. 131; 1 Mod. 26; Cro. Car. 69; Soan and Mace, Comb. (c). A husband may release costs obtained by the wife in the Spiritual Court. If the husband has any interest, every scintilla of it passes to the assignees of the husband. If the commission against the wife could be at all supported, it came too late. [ *573 ] It does not follow, that the creditors of the wife have no remedy; for they may prove their debts under the husband's commission, or perhaps (in equity) may have a separate remedy against the separate effects. But a commission of bankruptcy will not lie against the wife. This is the second instance that ever happened: the first was never litigated; it was in 1741, and a certificate was obtained under it. I admit that the general words of the statute of Elizabeth, and Jac. 1, are large enough to take in the wife: but the provisions of the acts plainly suppose the object of them to be sui juris. Bankruptcy was originally considered as an offence. Under the coercion of the husband the wife may be at any time made to commit an act of bankruptcy, and be guilty of this offence (d). Not surrendering in time is still more penal: the husband's co (c) P. 42. So it has been decided, in a more recent case, that she cannot sue, as a sole trader in London, without her husband, in the superior Courts at Westminster; Caudell v. Shaw, 4 T. R. 361. Neither is she liable to be sued as such in those Courts; and even in the city courts the husband should be joined for conformity: for she cannot make an attorney to conduct her defence, either in the city courts, or in Westminster Hall; yet execution shall be against her alone; Beard v. Webb, 2 Bos. & P. 93: that case was decided on * a writ of error in the Exchequer Chamber, (d) For if husband and wife commit an |