LA VIE v. PHILIPS. ercion may make the wife commit a capital crime, if liable to bankruptcy. All the wife's sole estates, jointures, &c. might be destroyed by the coercion of the husband. It is clear, that no execution upon the wife's separate effects could issue, but under the narrow and limited jurisdiction of the city courts. Therefore, a commission of bankruptcy, which stands in the place of an execution, shall not. Eyre, in reply, insisted, that the idea of bankruptcy is connected with the idea of sole trader, and can affect nothing but personal effects, the object of such sole trade, and the only ground on which credit is given. Or, if otherwise, supposing the custom established, those consequences must be allowed, without which it cannot exist. Lord MANSFIELD, C. J.-I have no doubt in this case. Mr. Dunning in his argument has put the question, whether the husband is totally excluded from all property in the wife's effects. But that is not the present question, nor proper now to be determined. But taking it for granted (argumenti gratid) that the husband might stop the trade for the future, and after paying her debts be entitled to the residue of her effects; [*574 ] yet he cannot do it with a retrospect, for that would destroy the custom totally. Any action that is brought against the wife by her creditors must be in the city courts; but the custom being a good one, use may be made of it in any court in the kingdom. If the husband were sued for the wife's debts in this Court, he might surely plead this custom in bar (e). Perhaps it would be difficult for the wife herself to find a remedy against the husband if he seized her effects; but not at all for the wife's creditors. Those effects are, in the first place, liable to the wife's creditors, and shall not be first applied to the general debts of the husband. In equity, where there are sole and joint estates, and sole and joint bankruptcy, separate commissions are taken out. By the custom she alone is liable to execution, to imprisonment of her person. The bankrupt laws certainly extend to London, so that the words of them will clearly reach her. And therefore a commission of bankruptcy should, for the benefit of herself, be allowed to issue (e) "The customs in the city of London are of different kinds; some are available every where, and others, of which this of a feme covert sole merchant suing and being sued with reference to her transactions in London is one, are spoken of in the books in terms which are not very intelligible, unless explained by the cases on the subject. These latter customs are called Executory Customs, the exposition of which expression is, Customs united to the Courts of the city of London. They are pleadable in London, and not elsewhere, except so far as they may be made use of in the superior Courts by way of bar."- -"A custom is executory which is united to a Court, and it is executed when it has been acted upon by the Court to which it is united:" per Lord Eldon, C. J., 2 Bos. & P. 98, 100. And again, after quoting the words of Lord Mansfield's judgment, as reported in S. C. 3 Burr., viz.; The feme sole trader in London, under this custom, must indeed bring her action in London, but such custom would be allowed in any other Court in a defence by the husband;" his Lordship says, "This is a clear exposition of the language used by Walmesley in Stanton's Case, (Moor, 135), and by Danby, in the Year-book, that customs united to the city courts are executory, and pleadable there only; but that such customs, if acted upon in those courts, may be pleaded in the superior Courts as matter of defence;" Id. 103. against her; otherwise she may be liable to perpetual imprisonment; and also for the benefit of the creditors, because it gives them an easy way of coming at the specific fund that is to pay them. As to precedents of such commissions, if several had passed sub silentio, it would bave been immaterial. But in that of 1741, a certificate was allowed by Lord Hardwicke, stating the feme covert to be a sole trader: This is therefore a strong authority. As to all the inconveniences supposed to follow from this proceeding, Mr. Recorder's reply is a clear answer. Her customary capacity relates only to her effects in trade. And as to the coercion of her husband, if she acts under an invincible necessity, she cannot at least incur a capital punish ment. LA VIE บ. PHILIPS. WILMOT, J.-This proceeding is a necessary consequence of the custom. If the wife's goods can be taken in a common execution, they may be taken in execution under a commission of bankruptcy. The question is between the two sets of creditors, not between the husband and wife. And the custom is for the benefit of commerce by multiplying traders. As to saying if the husband can intermeddle and put an end to the trade, the assignees may do so too; I think the husband cannot intermeddle so as to defeat the creditors of the wife. As to the bankruptcy of the wife, that is a consequence of the right to trade. *The custom does not indeed extend to all [marital] [*575 ] rights, but only to those that belong to the trade: it extends to those debts, which are contracted in the course of her customary trade. YATES, J.-It is impossible to read the custom without drawing from it the conclusion contended for by the plaintiffs. Bro. Custom, 3; custom of London may be pleaded in bar. While the custom is executory, it can only be alleged in the Mayor's Court; when executed, it may be pleaded in any other Court (f). The husband has a right to seize his wife's property, when he pleases; yet subject to the custom, so as not to defeat her creditors; who may follow the effects into the hands of the husband. And I think the coercion of the husband would excuse her from any crime or felony. ASTON, J.-The reason on which this custom is founded was well discussed a few years ago in C. B. in a case upon the custom of the manor of Harwell, Berks. It is grounded on the consent of the husband. This consent does not extend to those things which do not concern her craft. Bankruptcy is only a statute execution. The assignees stand in the husband's place. If they are entitled to the surplus, they must come in after the creditors of the wife. (f) See 2 Bos. & P. 103. (g) Lord Eldon, C. J., after quoting the words of Yates, J. says-"It appears that the Court there considered the custom as executed in the circumstance of the assignees of the wife having possessed themselves of her property, and that Postea to the plaintiff (g). the custom was therefore examinable in LA VIE v. PHILIPS. the daughter of a freeman of London, clearly liable to bankruptcy, notwithstanding her coverture; Ex parte Carrington, 1 Atk. 206. Com. Dig. Bankrupt, (A), acc. an infant mortgagee is binding, and cannot be avoided by his entry during in fancy. [Quære tamen.] ZOUCH, Lessee of ABBOTT and Another v. PARSONS. S. C. 3 Burr. 1794. * Conveyance of IN ejectment, a special case. John Bicknell, seised in fee, by indentures of lease and release, 24th and 25th March, 1750-51, conveyed the lands in question to William Cook and his heirs, by way of mortgage for 2801. William Cook died, leaving John Lamb Cook, an infant, his son and heir, and his widow and said John Lamb Cook his executors and residuary legatees. John Bicknell, the mortgagor, afterwards brought the [ *576 ] title-deeds to one Williams, an attorney, to procure 4007. to pay off said mortgage, and for other purposes; who procured it of the lessors of the plaintiff: and, by lease and release, 29th and 30th June, 1761, the said John Lamb Cook then an infant between sixteen and seventeen), and Elizabeth Cook the widow, in consideration of the 2807., and said Bicknell, in consideration of 1207., released and confirmed the premisses to the lessors of the plaintiff and their heirs, to secure said 4007. Williams, when he drew the deed, apprehended the whole 2807. to remain due to the Cooks; but, in fact, only 1097. thereof remained undischarged, the residue having been paid off in the lifetime of William Cook. Bicknell continued in possession from the time of his mortgage to William Cook, and in 1756 mortgaged the same to Thomas Thorne for a term of years, to secure 2007.; and Thomas Thorne, in March, 1762, assigned the same to the defendant Parsons, in consideration of 2287., the principal and interest then due. But before the said assignment, Williams, the attorney for the lessors of the plaintiffs, gave notice to the defendant of their mortgage in fee. On 27th March, 1764, two days before the Assizes, John Lamb Cook (being still an infant under twenty years of age), made an entry on the premisses, in order to avoid the said lease and release of 1761 to the lessors of the plaintiffs. Qu. Whether the lessors of the plaintiffs have a right to recover the premisses? Lord MANSFIELD, C. J., delivered the opinion of the Court. The merits will turn on two questions:-1st, Whether this conveyance bound the infant? 2d, If not, whether the defendant can take advantage of it? 1st, Miserable indeed would be the condition of infants in respect of themselves, if they can do no binding acts; and in respect of others, if they were bound by none. The law, at the same time that it protects the imbecility of infants, permits many of their acts to be binding (h). If an infant does a right (h) An agreement made by an infant, being for his benefit at the time, shall bind him; Maddon v. White, 2 T. R. 159. An infant may contract for necessaries; Hands v. Slaney, 8 T. R. 578. Yet he cannot accept a bill of exchange for them; Williamson v. Watts, 1 Camp. 552 (see Mr. Campbell's note, ibid.): and if he give a ག ZOUCH V. PARSONS. thing, which he was compellable by law to do, his act is good: as if he makes equal partition, pays rent, admits copyholders, &c.; Co. Litt. 172 a; 9 Rep. 85b; Conney's Case, 2d *Resolution. Held, by Fortescue, C. J., 18 Hen. 6, that an attorn- [ *577 ] ment of an infant is good, though he is not compellable to attorn: Co. Litt. 315 a, S. P. The reason is manifest; because a right and lawful act is not within the reason of the privilege. In Holt and Ward, Stra. 937 (i), if an infant of fifteen could have been compellable in the Spiritual Court to perform a promise of marriage, it would have made it a binding contract; and therefore civilians were heard to that point. Another rule is, that acts which do not affect an infant in point of interest, but are only the execution of an authority entrusted to him, are binding: such as presentation to a church, &c. (k). A third rule is, that the privilege of infants is a shield, and not a sword. It shall protect them from fraud and oppression, but shall not be turned into an offensive weapon to assist fraud and oppression: 2 Leon. 108; Cro. Eliz. 124 (7). In the sent case, the fee descended as a pledge for the money borrowed: the infant had no beneficial interest: he was bound, in justice, to reconvey upon payment: that payment has been made to the proper person. An adult would have always pre been compellable to convey, and so are infants by the statute 17 Anne (m). The money was paid by the plaintiffs, who have also, on the faith of this conveyance, advanced a further sum. The infant's conveyance is merely matter of form. Supposing it avoided, he would now be compelled to make it over again. It is clear that he is expressly a trustee the legal estate is in him as a mere stranger. The plaintiffs have, in point of time, the prior equity; and even had the defendant been prior, yet bill when of age for articles supplied to him when an infant, equity will, under circumstances, relieve against it; Brook v. Gally, 2 Atk. 34. An action does not lie on an account stated by an infant; Trueman v. Hurst, 1 T. R. 40. He cannot bind himself in a bond to pay principal and interest; Fisher v. Mowbray, 8 East, 330. He may bind himself apprentice; Newbury v. St. Mary's, 2 Bott, 363; R. v. Saltern, Bott, 613; R. v. St. Petrox, 4 T. R. 196; R. v. Cromford, 8 East, 25; Davis's Ca., 5 T. R. 715; R. v. Arnesby, 3 B. & A. 584.-Com. Dig. Enfant; Bac. Abr. Infancy, (T) 1; Painbridge v. Pickering, post, 1325. (i) Truly reported in Fitzg. 175, 275;— see 3 Atk. 610. (k) Co. Lit. 89a; 3 Inst. 156: and it is reported in 1 Burn's Ecc. Law, 138 (ed. 1809), Arthington v. Coverley, that Lord King, C., said, that if the infant were but a year old or younger, they ought to put a pen in his hand, and guide it to sign the presentation; S. C. 2 Ab. Eq. 518; Vin. Abr. Collation, pl. 10: but see Shapland v. Ryoler, Cro. Jac. 98. (7) And 115, Piggott v. Russel; the VOL. I. case of a fine levied by an infant. As to (m) C. 19: by which infants having H H ZOUCH PARSONS. his parting with the title-deeds would have postponed him to the plaintiffs. Therefore we are all clear upon the first point—that this conveyance bound the infant. 2d, But supposing it did not, then whether the defendant could take advantage of its imperfection depends upon two points. 1st, Whether an infant's conveyance, by lease and release, be in general void, or only voidable? 2dly, If voidable only, whether this entry of the infant avoided it? 1st, Perkins, s. 12, says, all deeds of an infant which take effect by manual delivery are only voidable. Bro. Dum fuit [578] *infra ætatem. 1st, Grant of a rent by infant only voidable. There is no difference between a feoffment and any other deed, which conveys an interest: both are equally solemn. Littleton, s. 259, makes no distinction in case of infants. 2 Inst. 673; bargain and sale inrolled by an infant is denied to be matter of record, but the infant may avoid it. The case of a feme covert is different, for her writing, sealed and delivered, has only the form of a deed, and she may plead non est factum (n). Perkins, s. 154, is clear that the deeds of a feme covert are void; of infants, only voidable. Two objections to this were made at the bar. 1st, That leases by an infant, on which no rent is reserved, are merely void.-2dly, That a surrender by an infant is absolutely void. As to the first point, there are many obiter sayings to that effect; but no case that has been adjudged upon this single ground. Humfreston's Case, Moor, 103, 2 Leon. 216, comes the nearest to it: it is there said to be void, by Wray and Southcote. This was in the case of a parol lease, made for the infant's benefit, to try his title. But reason at last prevailed against artificial refinement. There may be many beneficial reservations, without a rent; and rent may be reserved, and yet the lease be prejudicial to the infant. What seems decisive is, that the lessee cannot avoid such a lease, and therefore it is not ab initio void (o). As to the other point: Lloyd and Gregory, Cro. Car. 502, W. Jones, 405, cited to prove it. Croke states the doctrine of the surrender being void, because of infancy. Jones says, that the surrender of the first lease being only to take a second, which was void by statute 13 Eliz. the surrender was therefore void: Jones is certainly right (p). But it appears, in 1 Roll. Abr. 728, that a saying to the same import was dropped at the trial at bar, which probably confused (n) "Where it is held that the deeds of infants are not void, but voidable, the meaning is, that non est factum cannot be pleaded, because they have the form, though not the operation of deeds, and therefore are not void upon that account, without shewing some special matter to make them of no efficacy. Therefore, if an infant make a letter of attorney, though it be void in itself, yet it shall not be avoided by pleading non est factum, but by shewing his infancy per Cur. in Thompson v. Leach, 3 Mod. 310.-See Whelpdale's Ca., 5 Rep. 119 a; Com. Dig. Pleader, (2 W 22). (0) But see Davies v. Manington, 2 Sid. also Smith v. Low, 1 Atk. 489, and Bac. Abr. Leases, (B). 109 (p) See Bac. Abr. Infancy, (I) 3, pa. 600; also Wilson v. Sewell, post, 624. |