ea ‘ i rey ey eT eee meme t KD RIO Hae CORNELL UNIVERSITY LAW LIBRARY The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN MEMORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS bik coil le hn Se CO Bits nap nad te dae Ci MH Uni ity Lib KD 2162493 “ini THE LAW RELATING TO FRAUDULENT CONVEYANCES, UNDER THE Statutes of Elizabeth and the Rankrupt Acts; WITH REMARKS ON THE LAW RELATING TO BILLS OF SALE. BY ARTHUR JOSEPH HUNT, OF THE INNER TEMPLE, ESQ., BARRISTER ATTAW ; AUTHOR OF “ A TREATISE ON THE LAW RELATING TO BOUNDARIES AND FENCES.” LONDON: BUTTERWORTHS, 7, FLEET STREET, Lato Publishers to the Queen's most excellent Wujesty. DUBLIN: HODGES, FOSTER & CO. EDINBURGH: T. & T. CLARK; BELL & BRADFUTE. CALCUTTA: THACKER, SPINK & CO. BOMBAY: THACKER, VINING & CO. MELBOURNE: GEORGE ROBERTSON. 1872. LONDON: PRINTED BY C. ROWORTH AND SONS, NEWTON ST., HIGH HOLBORN. PREFACE. ——- As cases relating to frauds upon creditors and subsequent purchasers are of frequent occurrence, and many questions on this subject have of late years come before the Courts for decision, it ap- peared that a short Treatise, devoted exclusively to the consideration of Fraudulent Conveyances, would be acceptable both to the public and the profession. ‘The most recent cases that have arisen under the new Bankrupt Act and under the Bills of Sale Act have been carefully noted up, and every attempt made to render the work useful as a book of reference on the branch of law of which it treats. 13, SERLE STREET, LINCOLN’s Inn, 18th April, 1872. a2 CONTENTS. PAGE CHAPTER I, Concerning the Statute 18 Eliz. c. 5, and the earlier Statutes in pari materid .. of sis oe or oe o — CHAPTER II. The Extent of the Marriage Consideration . ee oe —— CHAPTER III. Concerning Postnuptial Settlements in pursuance of Antenuptial Articles .. oe ee we ais ais a ae — CHAPTER IV. Concerning Postnuptial and Voluntary Settlements oe oe — CHAPTER V. Concerning Postnuptial Settlements which are supported by Valuable Consideration—And concerning Bonds given in Substitution for Voluntary Bonds... és es aie _— CHAPTER VI. Concerning Voluntary Settlements which are made good against Creditors and subsequent Purchasers by Matters arising ex post facto o oe oe « ae o oe —~ CHAPTER VII. As. to how far Separation Deeds may be supported against Cre- ditors and subsequent Purchasers ee oe o a 30 41 56 67 72 V1 CONTENTS, PAGE CHAPTER VIII. As to how far Voluntary Appointments are good against Cre- z ditors oe an oe a te oe ws as 6 UT — CHAPTER IX. As to how far Transfers of Property without transmutation of Possession are good against Creditors. . oe si -- 82 —~ CHAPTER X. The Act for the Registration of Bills of Sale .. oo -. 90 —— CHAPTER XI. Of Reputed Ownership oe a ai oe oe -» 100 — CHAPTER XI. Concerning Conveyances and Assignments made during Litiga- tion to defeat the Process of the Court . .. o -- 106 —~— CHAPTER XIII. Concerning Conveyances and Assignments made in order to defeat the Crown .. oe ere ais o «. 111 —_— CHAPTER XIV. As to Voluntary Settlements of Property which cannot be taken in Execution by Creditors is i ee oe es 116 ft —_—_ CHAPTER XV. Who may take advantage of the Statute 13 Eliz.c, 5 .. «. 122 —— f CHAPTER XVI As to how far the Property comprised in a Fraudulent Convey- ance is Assets in the hands of the Grantor’s Heir or Exe- cutor for the Payment of Debts—And herein of Donationes mortis causd vs oe oe oe Ae oe +. 127 CONTENTS. CHAPTER XVII. Of the Provisions in the Bankrupt Acts respecting Voluntary and Fraudulent Conveyances and Assignments . oe — CHAPTER XVIII. Concerning Limitations of Property until Bankruptcy or Aliena- tion as a ae as os oe ee o. Sa CHAPTER XIX. The Statute 27 Eliz.c.4 .. oie <8 oe oe os CHAPTER XX. As to the Scope and Object of the Statute 27 Eliz. c. 4 . — CHAPTER XXI. A Voluntary Grant of Lands is irrevocable except as to Pur- chasers for Value from the same Grantor .. ‘ ole —~— CHAPTER XXII. To what kind of Property the Statute 27 Eliz. c. 4 refers ee ~~ CHAPTER XXIII Who is a Purchaser within the meaning of the Statute 27 Eliz. a4 oe ee “ os ee “en ee ne > CHAPTER XXIV. As to how far Equity will interfere in case of a Subsequent Sale of the Property comprised in a en Settlement of Real Estate .. oe se . oe oo re . > CHAPTER XXV. Concerning the Forfeiture Clauses in the Statutes 13 Eliz. c. 5, and 27 Eliz.c.4.. aye o . . oe oe Vil PAGE 140 168 178 184 196 203 205 215 219 Vill CONTENTS. PAGE CHAPTER XXVI. Concerning Conveyances made Fraudulent by 27 Eliz. ¢. 4, ‘by reason of their containing Powers of Revocation at the will of the Grantor .. ee . . . ee ie —~ CHAPTER XXVIII. As to the Relief granted in Equity in favour of the Parties de- layed or hindered by a Fraudulent Assurance o- *. 224 228 237 TABLE OF CASES. A. PAGE Abbott v. Burbage .. -» 149 ». Pomfret .. «. 152 Acraman v. Corbet .. 44, 60 Adames v. Hallett .. 50, 53, 233 Adams v. Adams .. « 41 ». Graham .. «- 97 Adney v. Field «+ 199, 226 Aikin (Ex parte) .. «+ 103 Ainslie v. Medlycott o. 38 Alcock (Ex parte) .» «. 168 Aldborough v. Trye 67, 194 Alden v. Gregory .. +» 185 Alderson v. Temple.. -- 151 Allen (Ex parte) .. -- 96 — v. Bonnet -» 109, 146 — v. Stear . e+ 222 — v. Thompson .. +» 97 Alsop (Ex parte) .. «+ 123 —v. Day .. .- -. 98 Altv. Alt .. sis -» 40 Alton v. Harrison .. 86, 109 Anderson (Ex parte) -. 158 Andrew v. Wrigley .. -. 133 Angell v. Draper .. +. 229 Anstey v. Newman .. «- 135 Apharry v. Bodingham 128, 129 Arbouin v. Hanbury «- 154 Armstrong v. Baldock «. 89 Arnell v. Bean ee -. 146 Arundell v. Phipps .- 57, 58, 82, 87, 89 Ash v. Lowe.. ee -» 62 Ashbury (Ex parte) «+ 99 Ashford v. Tuite .. - 94 Ashley v. Ashley .. «+ 67 Ashton v. Blackshaw 87, 96, 103 Atkinson v. Maling.. -. 88 ». Smith .. e- 59 PAGE Attenborough vy. Thomson.. 97 Att.-Gen. v. Dulwich College 191 Avison v. Holmes .. +» 174 B. Back v. Gooch s6 «. 147 Badger v. Shaw .. -- 96 Bagot v. Arnott .. 110,114 Bain v. Sadler *s +. 132 Baine (Ex parte) .. +» 131 Balch v. Westall .. ee 229 Baldwin v. Cawthorne »- 86 Bale v. Newton oe ++ 196 Ball v. Harris oe -» 131 Bamford v. Brown ., «+ 123 Banbury v. White .. +. 98 Bankhead’s Trust (Re): .. 102 Bannatyne v. Leader «. 153 Barclay (Ex parte) .. -. 99 Barham v. Clarendon «+ 22 Barkworth v. Young ++ 82 Barling v. Bishop .. 51, 106 Barnard v. Ford .. ws 68 Barnett v. Blake .. eo 174 Barrack v. M‘Culloch 117, 119 Barrow »v. Bell a -- 108 v. Griffith .. «+ 131 Barthrop v. West .. +» 211 Barton v. Vanheythuysen .. 120, 187, 203 Bartram v. Payne .. «+ 103 Baskett v. Cafe aie «+ 145 Bateman v. Bateman -- 131 ——— v. Green .. -- 194 Batson (Ex parte) .. -» 88 Battersbie v. Farrington 32, 42 Baverstock v, Rolfe... oe 65 aod x TABLE OF CASES. PAGE Baxter v. Pritchard .. «» 145 Bayard v. Hoffman .. -- 116 Bayley v. Ballard .. +» 156 Bayspoole v. Collins 63, 185, a 1 Beales v. Tennant .. «- 97 Bearcliff v, Dorrington .. 213 Beard v. Westcott .. ws 27 Beaumont v. Carter... ———_——. v. Thorpe -. 41 Beavan v. Lord Oxford 81, 211, 213 Bebee Tokai v. Beglar .. 51 Bedford v. Gibson .. -- 218 Beevor v. Savage .. «. 95 Begbie v. Fenwick .. a 99 Belcher v. Jones’... +. 152 v. Magnay .. -- 163 v. Prittie .. «. 153 Belding v. Read. -- 16 Bell (Ex parte) oe «+ 122 ——v.Simpson .. «. 146 Bellamy v. Saull .. ++ 95 Benham v. Keane .. «. 211 Bennet’s case oe «+ 227 Bennett (Ex parte) .. -. 168 v. Musgrove.. 216, 229 Benton v, Thornhill o- 85 Berney v. Davison .. -. 149 vc. Vyner +. 149 Berry (Ex parte) .. -. 66 Bessey v. Windham «. 124 Bevan v, Nunn -- 151,163 Beverly (In re) oe -. 11 Bew v. Bill .. os -. 146 Bill v. Cureton +» 208, 232 Billiter v. Young .. «+ 143 Bills v. Smith 143, 157 Biscoe v. Kennedy .. es 18 Blachford v. Woolley «+ 79 Blackburn (Ex parte) 152, 157 ——— v. Homan.. +. 157 Blackwell v. England +. 97 Blake v. French... -- 57 v. Hyland ° ++ 201 —— v. Izard ts cn OS Bland (Ex parte) .. oe 144 — v. Macculoch vs BF Blenkinsopp v. Blenkinsopp 106, 231 Boazman v. Johnston ++ 136 Boddy v. Esdaile .. +. 103 PAGE Bold v. Hutchinson .. -- 386 Bolland (Ex parte) .. o- 152 Bolton v. Bolton . -. 196 Bonfield v. Hassell .. xn VIS Bonner v. Bonner .. ex ad Bonney v. Ridgard .. e+ 133 Botcherby v. Lancaster .. 148 Bott v. Smith 107, 109 Boughton v, Boughton .. 196 Bourne v. Graham .. 151, 157 Bowen v. Bramidge .. -- 110 Bowes v. Foster es e 125 Bowker v. Burdekin ». 148 Bowman v. Malcolm 161, 163 Boyd v. Sharrock .. -- 99 Brace v. Duke of Marlbo- rough ae ii +. 211 Bracewell v. Williams -. 159 Bradbury v. Hunter «- 54 Brandon v. Ashton .. -. 174 v. Robinson 168, 170 Brashier v. Wyatt .. « 15 Brenchley (Ex parte) -.- 169 Brewin v. Briscoe .. «- 164 v. Short +» 103, 160 Bridgman v. Green .. -. 217 Briggs v. Boss ai -- 98 v. Jones ae ++ 198 British and Foreign Cork Co. (In re) ae «. 217 Brodick ». Scale... ss 97 Brooke v. Lord Mostyn .. 65 v. Pearson .. -. 169 Brown v. Bateman .. -. 99 v. Bellaris .. v. Carter... +» 67 v. Jones 9, 62 v. Kempton .. -- 156 Browne’s Estate (In re) 20, 22 Brunsden v. Stratton ae 30 Bryson'v. Wylie .. -- 103 Buckle v. Mitchell 185, 201, 215 Bucknall v. Roiston +. 84 Buller v. Waterhouse 224, 226 Bullock », Thorne .. o+ 225 Bulmer v. Hunter .. ea 18 Bunn v. Bunn ee o. 221 Bunyard v. Seabrook ++ 107 Burbidge (Ex parte) ++ 104 Burg’s case .. o. +. 67 Burling . Paterson .. 84, 86 Burrel’s case 184, 200 TABLE OF CASES. PAGE PAGE Burrough’s case. +. 121 | Clement v. Eccles .. 48, 45, 65 Burton (Ex parte) .. +. 104 | Clerk v, Nettleship .. ». 58 Butcher v. Easto .. -. 144 | Clifford v. Turrell .. «. 217 v. Harrison .. 220,222 | Climie v. Wood ae -- 99 Butler (Ex parte) .. - 104 | Clough v. Lambert .. 74 Butterfield v. Heath 61, 191, 207, | Coe’s Trust (In re) .. es 172 217 | Cohen (Ex parte) .. oe 144 - Coleman v. Winch .. «- 130 Cc. Colemere (Inre) .. e- 146 Coles v. Miles oe +. 133 Cadell v. Bewley .. 188, 207 | Collingwood v. Russell .. 133 Cadogan v. Kennett 84, 87,107 | Collinridge v. Paxton -- 118 Caldwell (Ex parte) -. 104 | Collins v. Burton .. os 229 Calliford v. Blawford ac (222) v. Forbes. -. 104 Callisher v. Bischoffsheim .. 65 | Collinson v. Lister .. «» 133 Campbell (Ex parte) 31,40 | Collyerv. Fallon .. -. 109 ———— v. Ingilby.. 17,18 v. Finch... +. 131 Campion v. Cotton .. 10,121 | Colman v. Croker .. + 228 Cannan v. Bryce .. - 114 | Columbine v. Penhall ‘12, 80 Carew v. Arundell .. -» 185 { Colvill (Ex parte) .. .. 104 Carr (Ex parte)... -» 388 | Colville v. Parker .. 9, 62 », Acraman -- 10 | Compton v. Bedford «. 144 —— v. Burdiss 84,151 | ————— ». Collinson ~» 7 Carter v. Carter... +. 176 | Conway v. Nall ., - 163 ». Hind als «» 58 | Cook v. Caldecott .. «. 145 v. Sanders. +. 131 | —— v Rogers ais «. 156 Casey’s Trusts (In re) -. 168 | ——v. Walker xe 87 Cash v. Young -. 146 v. Wright ae «. 64 Caton v. Caton 31, 32,33 | Cooke (Ex parte) .. -» 170 Caulfield v. Maguire -- 170 | Cookson v. Fryer .. -- 109 Chadwick v. Doleman - 196 | Coope v. Cresswell .. +. 131 Chamley v. Dusany «+ 46 | Cooper v. Wormald .. «. 85 Champneys v. Burland .. 231 v. Wyatt. «+ 173 Chapman v. Bradley -- 9 | Copis v. Middleton .. 232 ———— v. Emery 185, 209 | Cork (Earl of) v. Russell 230, 231 ——— vv. Ladbrooke - 132 | Corlett v. Radcliffe .. «- 46 Chase v. Goble es «+» 147 | Cormick v. Trappaud 22, 185 Cheesman v. Exall .. 109,125 | Cosnahan v. Grice .. -. 138 Chidell v. Galsworthy -. 16 | Cotterell vy. Homer .. 23, 24 Cholmley’s case... -. 190 | Cotterill (Ex parte).. -- 103 Chowne v. Baylis +. 113 | Cottle v. Fripp ee -. 57 Christ’s Hospital v. Budgin 119 | Cottonv. James .. «. 149 Christopherson v. Burton .. 84 | Cottrell (Ex parte) .. - 146 Christy v. Courtenay 44,53 | Coulson v. Allison .. we 9 Chubb v. Stretch .. -» 13 | Coulston v. Gardiner -. 106 Churchill v. Marks .. -. 174 | Courtoy v. Vincent .. «. 118 Clarke v. Chambers - 168 | Coutwasv. Swan .. «» 125 v. Hoskins .. -. 194 | Cowbridge R. Co. (In re) .. 229, ». Wright 19, 21, 24, 25 230 Clarkson v. Hanway .. 217 | Cowx »v. Foster a oe 74 Clavering v. Clavering . 196 | Cox. Barnard .. «- 135 Clayton v. Lord Wilton 26,27 | —— v.Bockett .. «+ 175 Xi TABLE OF CASES. PAGE Cox v. Fonblanque .. -- 173 Craven v. Brady .. o- 175 Creed v. Carey aia -- 16 Cresswell v. Cokes .. 220, 222 Croft v. Lumley .. oe 174 Crofton v. Ormsby .. 17, 40 Croker v. Martin .. -» 186 Crosby v. Crouch .. -- 156 Cross (In re) ois -» 81 v. Faustenditch ». 208 Crossley v. Elworthy 48, 46, 49, 51, 233 Cubbidge v. Boatwright .. 133 Cullin’s Estate (In re) 18, 23, 27 Currie v. Nind 192, 204, 217 Curtis v. Price ers -. 122 Cutten v. Sanger .. -- 78 D. Daking v, Whimper .. 4 Daniel (In re) - «- 96 Darvillv. Terry .. -» 109 Davidson v. Foley .. «- 172 —— »v. Robinson «+ 157 Davies v. Otty ars «. 125 v. Thomas .. oe 12 Davis v. Snell oD +. 123 Dawson (In re) oe -» 146 v. Kearton .. »- 135 v. Wood .. «- 85 Deacon v. Chitty .. -- 16 Deffell v. Miles ele o. 91 ». White .. -- 97 De Hoghton v Money 198, 233 De Manneville v. Crompton. 38 Dening v. Ware 50, 53, 185 Denison v. Tattersall 43, 51 De Tastet (Ex parte) «+ 154 —— »v. Carroll... o. 154 Devas v. Venables .. «- 146 Devon v. Watts ace +» 161 Dewey v. Bayntum .. 82, 87, 107 Dickenson v. Burrell -- 198 Dickson (In re) .. o- 185 Dilkes v. Broadmead «+ 134 Dillwyn v. Llewellyn -. 69 Dixon v. Baldwen .. o. 154 Dobbyn v. Adams .. ee 41 Dobson (Ex parte) .. «+ 157 PAGE Doe v. Ball .. 123, 143, 222 v. Bottriell .. 116, 204 — v. Carter a e- 174 —- »v. Fallows ad e- 184 —— v. Hawke ace e- 174 — v. James -- 196, 205 — v. Knight ae -. 148 — v. Lewis +. 200, 214 —v.Manning .. «+ 185 — v. Martin te «+ 227 — v. Martyr sis 67, 185 — v. Rolfe ai ee 204 ——v Routledge 67, 116, 184, 204, 220 — v. Rowe ws -- 380 —¥v.Rusham .. -. 199 — vv. Sherlock .. we 217 —— v. Webber os eo» 209 Dolin v. Coltman .. we 57 Dolphin v. Aylward 136, 218 Dommett v. Bedford e- 172 Dorsett v. Dorsett .. +. 173 Douglasse v. Waad .. 9, 206, 215 Drakefield v. Wilkes «+ 135 Drew v. Martin -» 119, 203 Duffield v. Elwes .. «- 137 Duffin y. Furness .. «a LIT Dundas v. Dutens .. 32,117 Dutton v. Morrison.. 147, 148 E. E. I. Co. v. Clavel .. -- 70 Eastabrook v. Scott.. e- 38 Eastwick v. Cailland «- 109 Eastwood v. Brown .. oe 84 KEchart ». Wilson .. -- 144 Ede v. Knowles ae - 68 Edginton’s Trusts (In re) .. 177 Edie ». Babington .. -- 78 Edwards v. Edwards v. English .. «+ 96 v.Glyn .. 155, 157 ». Harben .. 84, 133 v. Scarsbrook -- 162 Ellis (Ex parte)... e+ 104 Ellison v. Ellison .. «» 207 Elsley v, Cox os «+ 164 Elworthy v. Bird .. «- 76 Emly v. Guy oe +. 164 Empringham », Shor TABLE OF CASES. PAGE Ennis ». Smith ee -- 198 _Etches v. Etches.. -. 172 Evans v, Evans ae os 212 — v.Hallam .. -- 164 — v. Jones e» 110,148 — ». Wyatt . «. 38 Eveleigh v. Purssord -- 107 Evelyn v. Templar .. +» 201 FE. Fairebeard v. Bowers +. 185 Farhall v. Farhall .. -. 133 Fenn v. Bittlestone .- -. 86 Fenwick v. Bulman.. -- 233 Fermor’s case oo oe 328 Ferrers v. Cherry .. -- 218 Fife v. Bousfield .. - 222 Fitzer v. Fitzer os 7 4,75 Fitzmaurice v. Sadler -. 60 Fleming v. Buchanan 7 8, 79 Fletcher v. Manning oe 103 v. Sedley .. -- 119 Flyn v. Matthews .. -- 103 Ford v. Olden ae «- 153 — v. Stuart os -- 63 Foster v. Allanson .. -. 161 Foulger v. Taylor .. oz OS Fowler v. Foster... we: (94 Fox v. Fisher ais -» 104 Foxley (Ex parte) -. 145, 157 France v. Campbell .. -- 118 Fraser v. Thompson we 21 Frazer v. Levy at -. 146 Freeman v. Bowen .. »- 174 v. Pope .- 46,48, 52 French v. French 438, 46, 120, 121 Freshney v. Carrick . . «- 87 Frith #. Forbes ss «. 157 G. Gale v.. Lindo 0 ee 389 —— v, Williamson .. -» 217 Gardiner v. Gardiner «- 208 Gardner (Ex parte).- 31, 40 v Shannon .. 135, 168 Gardnor v. Shaw .- aa 06 Garrard v. Lord Dinorben .. 135 xii PAGE Garth v. Earnshaw .. we “16: — v. Enfield «e we B12 Garthshore v. Chalie ae 15 Gass (In re) .. ee »» 146 Gates v. Fabian ae a 81 Gavin v. Hadden .. - 134 General Ee Co. v. Venn Sis as 94 George v. Milbanke .. 53, 67, 78 George’s (Lady) case .. 208 Gibbins v. Phillips .. ee 151 Gibbs v. Harding .. + 73 Gibson v. Bray ais «+ 103 v. Bruce. -. 67 Gilham v. Locke .. -» 66 Gillett (Ex parte) .. -- 104 Girling v. Lowther .. a. 212 Gladstone v. Padwick -- 108 Glaister v. Hewer .. 119,165 Glynn (Ex parte) .. «» 164 Godden v. Crowhurst «- 171 Goldicutt 7. Townsend 32, 38 Goldsmith v. Russell 114, 229 Gooch’s case.. -- 129,184 Goodricke v. Taylor 50, 148 Goodright v. Moses 71, 191, 208 Goodwin v. Goodwin -» 196 Gordon v. Gordon .. -. 64 Goss v. Neale ee 86, 109 Gough v. Everard .. «- 95 Graham v. Candy .. -- 156 », Chapman -. 146 v. Furber 51, 84, 160 —— ». Lee 178, 174 ». O'Keefe 44, 45, 51, 217 Gray v. Jones xs -. 97 Green v. Attenborough 91, 96 — v. Bradfield .. -. 161 — vv. Lowes . «+ 132 v. Steer we -- 161 Greene v. Cramer .. 31, 38 », O’Kearney 60, 191 Greenwood v. Churchill .. 149 Griffin v. Stanhope .. «. 227 Grindell v. Brendon ae 393 Grogan v. Cooke .. «» 118 Grugeon v. Gerrard -- 148 Guest v. Cowbridge R. Co... 230 Gugen v. Sampson .. a 94 Gulliver (In re)... 383, 37 Gully v. Bishop of Exeter .. 218 Guihrie v.Wood .. -. 84 TABLE OF CASES. xX1V H. é PAGE Hadley v. Caswell .. 63 Hale v. Allnutt o. «- 153 oe Co. 98, 107 Hales ». Cox 4 -- 135 Halifax (Ex parte). . o» 164 Hall (Ex parte) =». o 41 v. Wallace ae -- 163 Hamer v. Tilsey «. +. 121 Hamer’s Devisees’ case .. 50 Hamilton v. Bell e- 104 Hammersley v. De Biel 32, 36, 37, 39 Hammonds v. Barrett -- 170 Harbert’s case oe -. 122 Hardey v. Green... 15 Harman v. Fisher .. 151, 156 v. Richards .. 60, 61, 218 Harries v. Lloyd .. «- 153 Harris v. Ricketts -. 157 v. Tremenheere .. 67 ». Wanklen .. ». 153 Harrison (Ex parte) -. 104 Hart v. Middlehurst 78, 185 Hartshorn v. Slodden «. 154 Harvey v. Ashley .. say Harwood v. Bartlett «+ 145 Haswell v. Haswell .. o» 177 Hatton v. English .. -. 98 Hawes v. Leader .. 122,133 Haylock v. Robotham .. 136 Haynes v. Forshaw... 133, 134 Hayslep v. Gayner .. -- 138 Hayward (Ex parte) -- 150 Heap v. Tonge is «- 64 Heart of Oak (The) -- 146 Heilbut v. Nevill .. ee 151 Henderson v. Lloyd .. e. 107 Hennessy v. Bray -- 169 Hepworth v. Heslop 235 Herne v. Meeres.. +. 107 Hervey v. Audland .. «+ 1385 Heslop v, Baker -. 101 Hewison v. Negus .. 57,59, 191 Hewer v. Cox 98 Hibernian Bank (Ex. parte) 154 Higginbotham v. Holme Higgins v. Shaw... Co. . e Higginson v. Kelly : Hill (Ex parte) ee -. 168 +. 131 v. York Buildings 299, 231 -. 170 +» 168 PAGE Hill v..Bishop of Exeter .. 206 ». Cowdery .- 109,174 —— v. Gomme oe -- 18 ——v.Simpson .. -- 133 Hinds (Ex parte) .. -. 102 Hinton (Ex parte) .. -.- 170 Hoare v. Osborne .. -» 79 Hobbs.v. Hull ase o- 75 Hobson v. Thelluson -. 108 Hodgson (Ex parte) «+ 170 Hoffman v. Pitt .. -- 85 Hoghton v. Hoghton -. 67 Holbird v. Anderson -- 109 Holcroft’s case sie «» 43 Hollingsworth v. White .. 98 Holloway (Ex parte) ». 146 ———— t. Millard oe 42 Holmes v. Coghill .. -» 78 -v. Penney 44, 51, 64, 171 Holroyd v. Marshall 16 Homan( Ex parte)87, 93, 96, 99, - Hookins (Ex parte) ‘ Hooman (Ex parte) 95, 7 Hooper (Ex parte) .. ate LED v. Smith .. -» 144 Hopcraft (Ex parte) -- 93 Hope v. Hayley --16, 145, 160 v. Meek o. oe 164 Horn v. Baker - «. 102 —— v. Horn es »- 132 Hornsby v. Miller .. -- 87 Houghton v. Lees .. -- 64 ———v. Tate .. «. 119 Houston v, Barry .. -. 17 Howard v. Harris .. aw QL v. Shrewsbury o. 54 Howell v. Price “a -- 196 Hudson v. Cheyney «. 39 Hue v. French me -- 133 Hugvenin v. Basely -» 67 Humberton v. Howgill - 128 Hungerford v. Earle 80, 224, 226 Hunt v. Hooper... «. 84 Hunting v. Sheldrake -. 129 Hutton v. Cruttwell 145, 146, 147 Hynes v. Holmen -. 181 I. Imray v. Magnay .. o. =84 Isitt v, Beeston oe -» 149 Ithell v. Beane ee we 24 J. Jackson v. Bowley .. Jamieson v. Stein .. Jason v. Jervis ae Jenkins v. Bryant .. .v. Keymis .. Jenkyn v. Vaughan... Jenney v. Andrews .. Jeston v. Key ais Jezeph v. Ingram .. Jodrell v. Jodrell .. Joel v. Mills .. ae Jobnson v. Fesenmeyer v. Gallagher Jones’ Will (In re) .. Jones v, Ashurst .. — v. Boulter ae —— ». Croucher .. —— v. Harber oe —— v. Marsh on —— v, Martin ne —— v. Noyes a ». Powell oe v. Purfroy .. v. Waite oe —— v. Wyse ee Jordanv. Money .. Joy v. Campbell .. Joyce v. Hutton .. K. Kay v. Crook. ae Keane v. Roberts .. Kearsley »v. Woodcock Keech v. Hall se Kelson v. Kelson ee Kemptner (Inre) .. Kensington v. Chantler Kerv. Ker .. oe Kerrison v. Darien .. Kettle v. Hammond .. Kevan v. Mawson .. Kiallmark v. Kiallmark Kidd v. Rawlinson .. Kidney v. Coussmaker Kinaston v. Clarke .. Kinderley v. Jervis .. King (The) v. Brewer Kingdon v. Bridges.. v. Legard ..22, 215, 216 TABLE OF CASES. XV PAGE PAGE | Kinnear v. Johnson.. +. 156 -» 46 | Kirk v. Clark or 9, 70 -- 388 v. Cureton ais oe 42 -» 31 | Kirwan v. Burchell .. -. 39 -. 135 | Knight v. Browne .. -» 169 28,226 | Knott (Ex parte) .. «. 211 43,45,53 | Krehlv.G@.C. Gas Co. .. 160 ae. 49 « 17 85, 89 L. «- 76 +. 172 | Lackington v. Elliott -» 160 «. 157 | Lacon +. Liffen «- 146 -. 79 | Lamlee v. Hamman .. «- 39 Lancaster Canal Co. (Ex -. 168 parte) a8 ae -» 102 «- 118 | Lang w. Lang as sa AY -. 27 | Langton v. Horton .. «+ 213 -- 203 | Lanham v. Pirie -- 196 144,147 | Lassence v. Tierney .. 31, 34 -- 62 | Latimer v. Batson 85, 89 -. 198 | Lavender v. Blackstone 57, 226 -. 182 | Lavery. Fielder .. -- 40 -. 135 | Law vw. Indisputable Life -. 199 Office .. -- 119 ae 72 v. M‘Gill fe -. 98 »» 174 ¢. Skinner ars 86, 144 81, 36,39 | Lawson v. Lawson .. «. 137 -- 102 | Lawton v. Campion .. -- 65 -. 58 | Leach v. Deane -. 201,215 Leake v. Young a's -» 145 Lear v. Leggett on +. 173 Lechmere v. Carlisle o. 217 Lee v. Green. . is -» 109 -. 387 | ——v. Hart .. oe «» 145 -- 183 | Leech v. Leech ee - 207 «- 172 | Leigh v. Winter... «- 226 -. 208 | Leonard v. Bacon .. -- 127 -» 218 v. Baker .. sa 189 «» 44 | Lester. Garland .. »- 170 -- 165 | L’Estrange v. Robinson .. 33 122,135 | Leukner v. Freeman -- 53 e- 201 | Lewes v. Lewes oe o. 174 .. 144 | Lewis (Ex parte) .. ear (95) e- 145 v. Butler. «- 170 -- 170 v. Madocks . -- 15 83, 86, 89 ». Rees ae ae. 199 -. 53 | Lilburne (Ex parte).. -» 145 129,180 | Lilly v. Osborn o +. 42 «- 132 | Lindon v. Sharp 85, 144, 146 -. 73 | Lingard v. Messiter .. .. 103 .. 119 | Lingham ». Briggs .. - 103 Xv1 TABLE OF CASES. PAGE PAGE Linton v. Bartlett .. 145,151 | Martin v. Scamore .. -. 30 Lister v, Turner .. 210,216 v. Willyams.. o- 145 Livesay v. Hood. -- 103 | Martindale v. Booth 83, 84 Lloyd v. Lloyd 17, 173, 174 | Martyn v. M‘Namara 43, 78 Load v. Green aie «- 102 | M‘Askie v. M‘Cay .. 33, 37 Lockwood v. Salter .. -» 13 | Massey v. Travers .. o- 22 Lockyer v. Savage .. -- 170 | Mather v. Frazer .. 99, 151 Logan v. Birkett .. 72,73 | Mathews (Ex parte) -- 88 Lomas v. Wright .. -- 136 uv. Feaver .. 54, 116 Lomax v. Burton .. 145, 146, 147 | —————v. Jones .. 181, 132 Loomes v. Stotherd .. -.- 132 | Maunsell v. White .. oe 37 Lord v. Bunn Pe -.- 171 | Mavor v. Croome .- -. 157 Lovick v. Crowder .- -. 84 | Mayor (Ex parte) .. aw 42 Low wv. M‘Gill Se 68,107 | Mayou (Ex parte) .. oe 44 Loxley v. Heath .. -. 88 | M‘Burnie (Ex parte) we VO Luckin v. Hambyn .. -» 97 | M‘Carthy v. Gould .. ex ALT Lucy (Ex parte) .. -. 65 | M‘Cuev. James... oe 98 Luders v. Anstey -- 81 | Meaghan (Ex parte) -- 170 Ludlow v. Bunbury .. -. 168 | Meek v. Kettlewell .. xx 208 Luff v. Horner ae 44,122 | Meggison v. Foster .. -. 66 Lush v. Wilkinson .. 43,53 | Meggotv. Mills .. 83, 84 Lynch v. Coppinger. . -. 222 | Mercer v. Peterson .. 146, 157 Lyster v. Burroughs -- 15 | Metcalfe v. Pulvertoft 185,196, ; 205, 216 Meux v. Howell 53, 110, 220 M. M‘Gonnell v. Murray «+ 138 M‘Henry v. Davies .. -- 13 Macdona v. Swiney .- 85,89 | Michael v. Gay sie «+ 221 Mace v. Cadell vis -- 102 | Middlecombe v. Marlow 42, 62 Maclurcan v. Lane .. »- 15 | Middleton v. Middleton .. 35 Maddison v. Andrew -- 80 | Miles. Williams .. ~ 13 Madox v.Nowlan .. ee 38 | Miller». Barlow .. »- 151 Magdalen College case ». 190 v. Miller... «- 137 Maguire v. Nicholson -» 54 | Mills v. Eden ats «+ 136 Maling v. Hill ste +» 226 | Minister v. Price .. +» 95 Mallet v. Halfpenny.. 35, 38 | Minshall v. Lloyd .. -- 86 Manders v. Manders 43, 53 | Mitford (Ex parte) .. o V7 Manning v. Chambers -- 172 | M‘Kenna’s Estate (In re) .. 198 Manton v. Moore .. 88,145 | M‘Keogh v. M‘Keogh sx 38 Marine Mansions Co. (In re) 92 | Mogg v. Baker i o- 158 Marjoribanks (Ex parte) .. 156 | Mole v. Smith me as 233 Marks v. Feldman .. +. 151 | Moneypenny v. Moneypenny 38 Markwell v. Markwell -» 197 | Monk v. Sharpe .. -» 150 Marlborough v. Godolphin.. 79 | Monro (Ex parte) .. «» 104 Marlow v. Orgill .. +. 107 | Montacute », Maxwell 35, 36 Marples v. Hartley .. -» 98 | Montague v. Sandwich ee 53 Marsh (Ex parte) .. -- 104 | Montefiore v. Behrens 170, 174 Marshall (Ex parte).. o» 145 | - v. Enthoven -» 175 ———- v. Lambe .. -+ 157 | Montefiori ». Montefiori .. 39 Martin v. Margham.. +» 174 | Moor». Rycault .. -- 62 ». Martin o. +» 189 | Moore v. Crofton .. -. 208 ». Podger .. o» 84 ». Darton .. oe 1838 TABLE OF CASES. PAGE Morewood v. South Yorkshire R. Co. 68, 96, 97 ——_ v. Wilkes .. ae 113 Morgan ». Brundrett «» 151 v, Horseman ae 163 Morrison v. Arbuthnot -. 89 Morton v. Woods .. 93, 99 Muggeridge’s Trusts (In re) 172, 173 Murphy (Ex parte) .. ++ 168 ». Abraham .. 50, 168 Musadee Mahomed »v. Meersa Ally ys Sh -- 106 Muskedy Kazim’s Claim .. 106 Muskerry v. Chinery -- 60 Musson v. May o -- 135 Myers v. Leinster .. -» 80 N. Nairn v. Prowse es --» 18 Naldred v. Gilham .. «+ 196 Nantes v. Carrock .. -- 117 Nayler v. Wetherall.. -- 15 Naylor v. Winch .. «. 64 Neale v. Day os e- 121 Neate v. Ball oe ++ 108 v. Latimer oe -- 86 Needham v. Johnson o. 92 Neville v. Wilkinson -- 38 Newcastle Corporation v. Att.-Gen. .. a +» 190 Newcastle (Duke of) (In re) 231 67 Newport’s case oe ae Newstead v. Searles.. 24, 26 Newton v. Askew .. -- 196 ». Chantler .. .. 147 Nicholson v, Cooper. . «. 96 », Gooch .. -. 150 Nixon v. Hamilton .. 66, 74, 217 Noble v. Brett «se e- 134 Noreutt v. Dodd... -- 117 North v. Ansell as o 17 Northcliffe v. Warburton .. 106 Nunn v. Wilsmore .. 53, 54, 75, ws 88 Nutting (Ex parte).. -- 104 0. O’Connor (In re) .. - 96 ———— v. Bernard 69, 128 | Xvi PAGE O’Donovan v. Rogers 71 O’Gorman v. Comyn - 9 Oldham v. Oldham .. -. 174 Oliver v. King ++ 123, 220 Oriental Bank v. Coleman .. 144 Oxley (Ex parte) -.» 170 v. Lee +» 216, 235 PB. Pack v. Bathurst ei 99 Packman’s case os -. 122 Page v. Way oe «+ 172 Paget v. Perchard .. +. 85 Palmer v. Neave.. -- 388 Pariente v. Pennell... 103,160 Parker v. Carter 60, 191, 199 v. Serjeant .. «. 187 Parr v. Eliason a 67, 194 Parry v. Carwarden.. o. 215 Parslowe v. Weedon +. 185 Partridge v. Gopp .. e- 106 Patch v. Shore ais -- 1385 Pauncefoot’s case .. 50, 111 Payne (Ex parte) .. -» 173 ». Hornby .. 153, 157 v. Mortimer .. 70, 136 Peacock v. Monk .. 80, 119 Peake v. Lightoller .. -- 169 Pearce v. Brooks .. «- 114 Pearson v. Graham .. «- 163 Pease (Ex parte) .. «+ 103 Penhall v. Elwin .. 12, 54, 64, 143 Pennell v. Dawson .. «. 85 ». Heading .. «+ 153 v. Reynolds .. -. 146 Penson v. Moon... «- 146 Perkins v. Bradley .. -» 113 v. Thornton .. «- 17 ». Walker .. «+ 224 Perry Herrick v. Attwood .. 193 Peter v. Nicholls .. o- 215 Petre v. Petre ser 8: Phipps v. Ennismore -- 169 Pickard v. Bretts .. -- 98 Pickstock v. Lyster .. +» 110 Piercy v. Humphreys o- 95 Pimm », Insall ar -- 131 Player.v. Foxhall .. -. 132 Ponsford v. Walton .. »- 140 XV PAGE Pott v. Todhunter .. ie QUT Potter (Ex parte) .. -» 141 Powell v. Boggis_ .. «- 168 -—_~— v. Oakley .. «. 41 v. Pleydell .. «+ 185 Power v. Bailey .. o 9 Priddy v. Rose oe -- 17 Procter v. Warren .. - 119 Prodgers v. Langham 67, 70 Prole v. Soady ae -- 40 Pulling v. Tucker .. «. 148 Pulvertoft v. Pulvertoft 28, 65, 185, 201, 215 Pym v. Lockyer .. ++ 173 R. Raleigh’s case oe +. 112 Ram v. Cartwright .. +. 122 Ramsden v. Hylton .. +. 62 —— v. Jackson 135, 217 Ramsey v. Eaton .. 163, 164 Rand v. Cartwright.. os 211 Randall v. Morgan .. +» 32 Rawbone’s Trust (In re) .. 102 Reade v. Livingston.. 49, 51 Redding v. Wilkes .. - 34 Reddington ». Reddington .. 119, 203 Redfern (Ex parte).. eo. 95 Redman v. Redman .. -. 39 Reed v. Ayton oe «» 153 — v, Blades ss -- 86 —v, Wilmot ae -. 86 Reese River Co. v. Attwell.. 229, ce 231, 233 Reeves v. Capper .. «. 85 v. Reeves .. -- 18 ». Whitmore -. 16 Regina». Bridger .. o- 112 v. Hall “s +. 166 v. Ritson .. -. 83 v. Robinson .. «+ 173 Remmett v. Lawrence «. 84 Rex—See Regina. Reynard v. Robinson «- 153 Rice v. Gordon ws -» 134 v. Serjeant .. «. 84 Richards v. James .. 96, 133 ——— ». Johnston ». 68 Richardson (Ex parte) o. : v. Horton «» 131 TABLE OF CASES. PAGE Richardson v. Smallwood .. 44, 51, 52, 53 Riches v. Evans -- 88,110 Rider vw. Kidder oe 50, 117 Rippon v. Norton .. -- 172 Roberts v. Williams 196, 205 Robinson (Ex parte) -» 170 ———_ v. Briggs .. o» 95 ». Cartwright .. 149 v. Collingwood .. 93 ——— v. MCreight -. 119 ——— v.MDonnell 87, 123 ———— v. Pearce .. -. 118 Roche v. Hassard .. -.» 209 Rochford v. Hackman 172,174 Rocke (Ex parte) -. -» 162 Roddy v. Williams .. «. 67 Roe v. Bradshaw .. -» 98 — ». Galliers ob -» 102 v. Mitton ea we OF Roffey v. Bent oe «. 174 Roper (Ex parte) .. «+ 144 Rose v. Haycock .. o. 145 Round v. Byde ae ee 151 Rowen v. Chute ee «. 15 Royce (Ex parte) .. -- 146 Rush (In re),. os eo. 231 Russell v. Hammond o. 42 Rust v. Cowper os o- 151 Ss. Sagittary v. Hide .. «+ 128 Sanders v. Graves .. «+ 217 Sanderson’s Trust (In re) .. 172 Saunder’s Estate (In re) .. 113 Savill v. Savill Ss «. 17 Scarf v. Soulby +. 42,44, 53 Schroder (Ex parte) -» 99 Scott (Ex parte) .. o» 99 — v. Bell... o. -. 57 — »v. Scott.. ee 38, 71 —v.Thomas.. -» 156 —— »v. Tyler. oe «+ 133 Scudamore (Ex parte) +» 151 Seals (Ex parte) .. -. 154 Sear v. Ashwell... ++ 196 Sewell v. Moxsy .. -» 136 Seymour v. Lucas .. 172,174 Shadwell v. Shadwell -. 34 Sharp v. Cosserat .. .. 173 TABLE OF CASES. PAGE Sharpe v. Foy . os it Shattock v. Shattock as Shaw v. Bran at as 113 —- v. Jeffrey 8 -- 122 =— v, Standish .. +» 208 Shears v. Jacobs... 97, 133 ». Rogers .. -» 43 Shee v. Hale oe -- 174 | Shorland (Ex parte) -» 165 | Short v. Mercier .. +. 221 Shrubsole v, Sussams 150, 153 Shute (Ex parte) .. + 171 Shuttleworth (Ex parte) .. 103 — v.Hernaman.. 87 Sierbert v. Spooner .. «- 144 Sims v, Thomas .. 117,119 Singleton y. Butler .. o- 154 Skerratt (Ex parte) -- 165 Slack v. Tolson oe -- 63 Sladden v. Sarjeant.. -. 107 Slater y. Pinder .. 162,163 Smith (Ex parte) .. «» 104 —— v. Cannan 143, 148, 157 — v.Cherrill .. 28, 26 —»v,Fellows .. -- 80 — »v.Garland .. «. 215 — vt, Hurst «+ 228, 230 — v. Kay.. os -. 36 — v, Payne oe «. 153 — v. Tims as «- 157 v. Wall oe we 95 Sneed v. Culpepper .. -- 136 Sorbein v. Bland .. -. 132 Spackman v. Timbrel]l 131, 132, si 134 Sparkes v. Bell ee -. 18 Sparrow (Ex parte).. -. 147 Spicer v. Spicer... 33 Spirett v. Willows 46, 47, 48, oe Spurgeon ». Collier .. Spurrier (Ex parte) Squire (Ex parte) .. Stack v. Royse ae Stackpoole v. Stackpoole Standen v. Bullock.. Stanger v. Wilkins .. Stansfield v. Cubitt .. Stapilton v. Stapilton Staplehill v. Bully .. St. Armand v. Jersey Steel v, Brown oe ae 33 «. 135 .. 141 «15 22, 216 184, 225 .. 158 -- 96 er .. 29 260 cB3 . 123 xX1x PAGE Stephens v. James .. «. 170 — v. Olive .. 53, 73 ' Stepney v. Biddulph 121, 202 Stevenson 7, Newnham 67, 150, 151 Steward v. Lambe .. «- 87 Stewart v. Moody .. 109,144 Stileman v. Ashdown 42, 50,119 Stiles v. Att-Gen. .. -. 66 St. John v. St. John ww 93 Stockwell ». Yeates .. we 174 Stokoe v. Cowan .. -. 119 Stone v. Godfrey .. « 389 ——yv.Grubham .. 84, 86 Strachan v. Barton.. 153, 154 Stray (Ex parte) .. - 123 Strong v. Strong .. o- 46 St. Saviour’s case .. «- 224 Stultz’s Trusts (In re) «+ 175 Styan (Ex parte) .. 103,160 Surcome v. Pinniger 32, 38 Sutton v. Bath oe 97, 107 Symes v Hughes .. e+ 125 Symons v. George .. -. 110 Synge v. Synge os + 168 T. Taafe (Ex parte) .. -» 169 Talbot v. Staniforth +. 67 Tanner v. Byne -- 136,217 Tappenden v. Burgess -- 147 Tarback v. Marbury 50, 80, 226 Tarleton v. Liddell .. 7, 65 Tasker v. Small... 2. 233 Tastet v. Tavernier .. -- 170 Tatham v. Andree .. -- 161 Taylor (Ex parte) .. -. 58 v. Beech. 82, 34 ». Jones -- 50 Taylor’s Assignees v. ee son... - 154 Tempest (Ex parte) «» 153 Tennyson (Ex parte) -- 104 Teynham’s case sie aie, 229 Thackthwaite v. Cock ee 104 Thomas (Ex parte) ee 104 Thompson v. Freeman «. 154 ——_ ». Harrison -- 40 v. Webster 438, 46, 63 Thorne v. Thorne .. 211, 224 XX TABLE OF CASES. PAGE Thornton v. Hargreaves .. 156 Todhunter (Ex parte) «+» 162 Tonkins v. Ennis... «- 185 Toovey v. Milne .. «. 157 Topping v. Keysell .. -. 150 Tottenham v. Green - 67, 194 Townend v. Toker ..63, 201, 233 Townsend v. Early .. -- 176 ——_ v. Westacott 44, 53 ». Windham 42, 45,79 Trappes v. Meredith 171, 172, 173 Trevelyan v. White .. o. 202 Trousedale v. Sheppard 91, 98 Trye v. Gloucester aes tion Turner 2. Hardcastle 147, 148, 163 Turnley v. Hooper .. 43, 62 Turton v. Benson .. om 39 Tuton v. Sannoner .. -- 98 Twyne’s case 50, 82, 89,111, 142 Tyndale v. Warre as +. 129 Tyrer v. Littleton .. -. 50 Tyrrell v. Hope.» «- 123 Uz Udall v. Walton... -- 163 Union Bank of Manchester (Ex parte)... ee 104, 105 Upton v. Bassett .. -- 203 Usborne (Ex parte) «» 104 Vv. Vacher v. Cocks. +. 157 Vallance (Ex parte) -» 104 Van Casteel v. Bowker 153, 156 Vane v. Rigden 133, 232 Vansittart v. Vansittart 57,76 Vaughan v. Vanderstegen .. 79 Venness (Ex parte) -» 162 Verner (Ex parte) .. -. 170 Villars v. Beaumont -- 196 Viner v. Cadell as «. 104 Vizard’s Trusts(In re) .. 79 Ww. PAGE Wakefield v. Gibbon «+ 65 Waley’s Trusts «+ 174,176 Walford v. Gray .. -- 40 Walker v. Burrowes -. 42 ». Taylor .. -- 133 Wallace v. Anderson 171, 172 Walrond v. Walrond 57, 74 Warbrick v. Varley .. -. 174 Warburton v. Hill .. -- 118 ————. v. Loveland... 201 Ward v. Clark ee -» 146 — v. Lant.. “e «- lll — v, Shallet a -- &8 — v. Turner -» 187,138 — v. Ward a o- 134 Ward’s case -- -. 388 Warden v. Jones 31, 33, 36, 37, 1 Ww Wardroper v. Cutfield o- 172 Ware v. Gardner .-. -. 50 Waterfall v. Penistone ae 99 Watkins v. Birch .. -- 86 v. Cheek .. «» 134 Watson v. Parker .. -- 135 Watts v. Porter ae oe 213 Weaver v. Joule... -. 87 Webb’s Policy - 104,160 Wellesley v. Wellesley .. 73 Wensley (Ex parte) 141, 144, 147 West v. Skip.. vis -- 84 Westbury v. Clapp .. -» 109 Whale v. Booth ee o- 184 Wheeler v. Caryl .. 9, 62 Whitaker 7. Wisbey o» 114 Whitbread v. Smith -» 60 Whitby (Ex parte) .. «- 153 White v. Anderson .- -» 15 — v. Bartlett .. -» 145 — ». Chitty ae «- 173 — »v. Morris oe ee 124 v. Sansom — oe 77, 185 Whitfield », Brand .. +. 104 ——— ». Prickett -. 173 Whitmore v. Claridge «- 146 v. Mackeson -- 39 ——— v. Mason .. -- 169 Whittington v. Jennings .. 77 Whitwell v. Thompson .. 165 Whitworth v. Gaugain .. 213 Wich v. Parker .- «+ 221 Wiggins v, Armstrong .. 228 ee Pe: eee. SPS, a ee TABLE OF CASES, Xx1 PAGE PAGE Wilcoxon 2 Searby .. +» 98 | Worrall. Jacob .. «. 73 Wilkins v. Bromhead +» 103 | Worsley v. De Mattos oe 14d Wilkinson 7. Wilkinson .. 174 | Wreford (Ex parte).. » 158 Willats ». Busby .. 216, 234 | Wrixon v. Cotter ©... «. 63 Williams v. Massey... 131, 134 v, Somers... -. 78 —— v. Thorp .. «- 104 Yy. v. Williams 37, 64 . Williamson v. Codrington .. 202 ay iis tte of England. . ch Yarnold v. Moorhonse » 172 oe Basen = 169 ee v. Williams -. 38 ee Walspit, ck 72.76 oung (Ex parte) .. +. 170 ». Wormald .. or 67 ». Barnett .. «107 Winch». Keeley .. .. 104 ePiier << Me, 101 Wiseman’s case aie -- 190 a eo a fe ie Witham (Ex parte)... 104 Sr ee ee Wollaston 2. Tribes. 1.18 Sued ae Wale champ as Sees Ces 110 Younghusband v, Gisburne 171 Wood v. Dixie -- 107,109 v. Wood o. os Ls Woodgate 7. Woodgate .. 132 Z Woodham v. Baldock 84, 86 5 Woodhonse v. Murray «- 158 Wordall v. Smith .. ++ 85 | Zwilchenbart (Ex parte) .. 145 TABLE OF STATUTES CITED. —~— PAGE 2 Rich. 2, st. 2,¢.3.. - 2] 2&8 Viete. 50 Edw. 3, ¢. 6 aye - 2 | 8&4 Vict.c 3 Hen. 7, ¢. 4 Se se. Se c. 21 Jac. 1,¢. 4 exe «. 222 | 12 & 183 Viet. 13 Eliz.c. 5 .. ie ae e. 10 ‘i 2 | 13 & 14 Vict. 14 Eliz. c. 11 ope 8 | 17 & 18 Vict. 18 Eliz. ¢. 11 ts 20 Bg. G1 as ats ae, 222 27 Eliz.e. 4 .. 2 -- 178 | 18 & 19 Viet. 29 Hliz.e. 5 .. ww 8 31 Eliz.e. 5 .. iis -. 222 | 19 & 20 Viet. 39 Eliz. ec. 18 as we 186 | 22 Viet. 3S 10 Car. 1, ¢. 3, sess, 2 8,183 | 24 & 25 Vict. 29 Car. 2, ¢. 3 -- 31, 34,35 | 27 & 28 Viet. 38&4W.& Mie. 14 78,129, | 29 & 80 Vict. 130 | 32 & 33 Vict. 11 Geo. 2, ¢. 19 ai -- 106 6 Geo. 4, e. 16 wi -- 160 11 Geo. 4 & 1 Will. 4,¢.47 = 78, 129, 130 3 & 4 Will. 4,¢.104 .. 78,116, | 33 & 34 Vict. 131 1 & 2 Vict. c. 110..116, 117, 118, 212, 213, 229 PAGE E29 ave -- 160 eiB2 a «+ WS 105... ow. 212 C90 ax +» 230 e. 106 100, 142 Ge 2P xe » 230 @, 56s 90 e.55.. 90, 95 ce. 104 88, 101 e.43.. oo. Al COT ss an OO ce. 97... -» 108 ays -. 220 e.134.. -- 142 e. 112 212, 230 c. 96... 90, 92, 93 ce. 46... - 133 ce. 62... - 166 e.71.. 11, 54, 62, 80, 87, 100, 140 C: 23 es - lt €.93.. 14, 55 C.9T xs 95 THE LAW RELATING TO FRAUDULENT CONVEYANCES. CHAPTER I. Concerning the Statute 13 Eliz. c. 5, and the earlier Statutes in pari materia. Ir is proposed in the following pages to treat of the subject of fraudulent conveyances, and to consider how far they can be supported against creditors and subse- quent purchasers. — The principal statute which relates to fraudulent conveyances and assignments, made with the view of defrauding creditors, is the statute 13 Eliz. c. 5; and there are sundry provisions in the bankrupt acts relating to the same subject. It is intended in the first place to consider the statute 13 Eliz. c. 5, and then shortly to refer to the clauses in the bankrupt acts, which make an assignment by a trader or debtor of his property an act of bankruptcy, and void against the assignees or trus- tee in bankruptcy. The statute 27 Eliz. c. 4, which was made to prevent frauds upon purchasers, will then be considered. Many cases, however, relating to the last- mentioned statute will be cited while treating of the statute 13 Eliz. c. 5. This could not be prevented, because, the two statutes being in pari materid and H.F. | B 2 FRAUDULENT CONVEYANCES. having many points in common, it was absolutely necessary at times to consider them both together. Before noticing the statute 13 Eliz. c. 5, it may be well to refer to the earlier statutes which were passed with the view of preventing frauds upon creditors. The first of these statutes is the statute 50 Edw. 3, c. 6, whereby, after reciting that because that divers people inherit of divers tenements, borrowing divers goods in money-or in merchandize of divers people of this realm, do give their tenements and chattels to their friends, by collusion thereof to have the profits at their will, and after do flee to the franchise of Westminster, of St. Martin le Grand of London, or other such privileged places, and there do live a great time with an high countenance of another man’s goods and profits of the said tenements and chattels, till the said creditors shall be bound to take a small parcel of their debt, and release the remnant, it is ordained and assented that if it be found that such gifts be so made by collusion, then the said creditors Shall have execution of the said tenements and chattels, as if no such gift had been made. ‘This act was followed by two others, 2 Rich. 2, st. 2,c. 3, and 3 Hen. 7, c. 4, which enacted similar provisions (a). The statute 13 Eliz. c. 5 (entitled “An Act against fraudulent deeds, giftes, alienations,” &c.), was passed “for the avoiding and abolishing of feigned, covinous and fraudulent feoffments, gifts, grants, alienations, con- veyances, bonds, suits, judgments, and executions, as well of lands and tenements, as of goods and chattels, (a) And see the statutes 13 Eliz. c. 10, and 18 Eliz. c. 11, as to fran- dulent assignments by ecclesiastics in order to defeat their successors of their actions for dilapidations. 13 Eviz. c. 5. 3 more commonly used and practised in these days than hath been seen or heard of heretofore: which feoffments, gifts, grants, alienations, conveyances, bonds, suits, judg- ments, and executions have been and are devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, accounts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs, not only to the let or hindrance of the due course and execution of law and justice, but also to the overthrow of all true and plain dealing, bargaining, and chevisance between man and man, without the which no commonwealth or civil society can be maintained or continued.” By section 1(6) it is DECLARED, ordained, and enacted, that all and every feoffment, gift, grant, aliena- tion, bargain, and conveyance of lands, tenements, here- ditaments, goods and chattels, or of any of them, or of any lease, rent, common, or other profit or charge out of the same lands, tenements, hereditaments, goods, and chattels, or any of them, by writing or otherwise, and all and every bond, suit, judgment, and execution, at any time had or made sithence the beginning of the Queen’s Majesty’s reign that now is, or at any time hereafter to be had or made, to or for any intent or purpose before declared and expressed, shall be from henceforth deemed and taken (ONLY as against that person or persons, his or their heirs, successors, execu- tors, administrators, and assigns and every of them, whose actions, suits, debts, accounts, damages, penal- ties, forfeitures, heriots, mortuaries, and reliefs, by such (5) In the numbering of the sections Chitty’s Collection of the Statutes has been followed. See the note there. B2 4 FRAUDULENT CONVEYANCES. guileful, covinous, or fraudulent devices and practices as is aforesaid are, shall, or might be in anywise dis- turbed, hindered, delayed, or defrauded) to be clearly and utterly void, frustrate, and of none effect; any pre- tence, colour, feigned consideration, expressing of use or any other matter or thing to the contrary notwith- standing. A few short notes are here appended to some of the sections of the statute under consideration to facilitate reference to other parts of the work, where the principal points which commonly arise under the act are dealt with at large. It will be observed that this statute refers to chattels and personalty as well as to real estate, which is not the case with the other statute, 27 Eliz. c. 4, which refers only to land. Neither of the two statutes of Elizabeth which are treated of in this work speak of VOLUNTARY conveyances and assignments, but only of those which are fraudulent, and made to deceive creditors, purchasers and others. A conveyance or assignment cannot, therefore, be avoided under these statutes merely because it is volun- tary. If it does not interfere with the right of a credi- tor or of a subsequent purchaser for valuable considera- tion, it will remain as effectual and binding on the grantor or assignor, as if the property comprised in the voluntary instrument had changed hands upon a sale (c). It will further be noticed that the statute 13 Eliz. c. 5, applies not only to creditors, but also to other parties whose actions and suits are delayed by the fraudulent (¢) Infra, Chapter XV. 13 Exiz. c. 5. 5 conveyance. Consequently the lord of a manor may avoid an assignment made by a tenant of the manor in order to defeat the lord of his heriot, and an assurance made to delay process at the suit of the crown will be set aside (d). The word “declared” is used in the first section of the statute 13 Eliz. c. 5. The act is consequently said by Lord Coke to be only confirmatory of the common law, which abhors all manner of fraud. Indeed, Lord Mansfield said that the rules of law were so strong against fraud that the common law itself would have attained every end which is proposed by the statutes of fraudulent conveyances. A statement which, however true with respect to the statute 13 Eliz. c. 5, is hardly warranted in the case of the other statute (27 Eliz. c. 4), under which all voluntary assurances are treated as fraudulent in law against subsequent purchasers, al- though they bought with full notice of the voluntary instrument (e). By section 2(f), all and every the parties to such feigned, covinous, or fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions, and other things before expressed, and being privy and knowing of the same or any of them, which at any time after the 10th day of June next coming shall wittingly and willingly put in ure, avow, maintain, and justify, or defend the same, or any of them, as true, simple and done, had or made bond fide and upon good consideration; or shall aliene or assign any the lands, (d) Infra, Chapter XIII. (e) Infra, Chapter XIX. (f) This section is considered with the corresponding section in the other statute in Chapter XXYV. 6 FRAUDULENT CONVEYANCES. tenements, goods, leases, or other things before men- tioned, to him or them conveyed as is aforesaid, or any part thereof, shall incur the penalty and forfeiture of one year’s value of the said lands, tenements, and here- ditaments, leases, rents, commons, or other profits of or out of the same, and the whole value of the said goods _ and chattels, and also so much money as are or shall be contained in any such covinous and feigned bond; the one moiety whereof to the Queen’s Majesty, her heirs and successors, and the other moiety to the party or parties grieved by such feigned and fraudulent feoffment, gift, grant, alienation, bargain, conveyance, bonds, suits, judgments, executions, leases, rents, commons, profits, charges, and other things aforesaid, to be recovered in any one of the Queen’s courts of record by action of debt, bill, plaint, or information, wherein no essoin, pro- tection, or wager of law shall be admitted for the defen- dant or defendants; and also being thereof lawfully con- victed, shall suffer imprisonment for one half-year with- out bail or mainprize. By section 3 it is provided and further enacted, that whereas sundry common recoveries of lands, tenements, and hereditaments have heretofore been had and hereafter may be had against tenant in tail, or other tenant of the freehold, the reversion or remainder, or the right of re- version or remainder, then being in any other person or persons; that every such common recovery heretofore had and hereafter to be had of any lands, tenements, or hereditaments shall as touching such person and persons which then had any remainder or reversion, or right of remainder or reversion, and against the heirs of every of them, stand, remain, and be of such like force and 18 Exiz. c. 5. 7 effect and of none other as the same should have been if this act had never been had nor made. “* The words of this section, when examined, clearly show that it applies only to persons who are not parties to the recovery, but have estates in remainder or rever- sion subsequent to and expectant on the estates of ‘those who are parties to the recovery . . . . The meaning of the clause evidently is, that, although the uses of a fraudulent recovery shall not prevail to defraud creditors, yet that the recovery shall stand good to bar those in remainder or reversion as if there had been no fraud” (7). By section 4 it is provided and further enacted, that this act or anything therein contained shall not extend to make void any estate or conveyance, by reason whereof any person or persons shall use any voucher in any writ of formedon, now depending or hereafter to be depending, but that all and every such vouchers in any writ of formedon shall stand and be in like force and effect as if this act had never been had nor made; anything before in this act contained to the contrary notwithstanding. By section 5 it is provided, that this act or anything herein contained shall not extend to any estate or interest in lands, tenements, hereditaments, leases, rents, commons, profits, goods, or chattels had, made, con- veyed, or assured, or hereafter to be had, made, con- veyed, or assured, which estate or interest is or shall be upon GOOD CONSIDERATION AND BONA FIDE lawfully conveyed or assured to any person or persons, or bodies politic or corporate, not having, at the time of such con- (g) Per Lord Campbell in Zarleton v. Liddell, 17 Q. B. 390. 8 FRAUDULENT CONVEYANCES. veyance or assurance to them made, any manner of notice or knowledge of such covin, fraud, or collusion as is aforesaid; anything before mentioned to the con- trary hereof notwithstanding. To bring a conveyance or assignment within this section it must be both bond fide anD founded on good consideration. Therefore, a transaction which is dis- honest and a mere colourable affair got up to delay creditors will not be supported, although some conside- ration may have passed to the debtor when the property was transferred. And by good consideration is here meant valuable consideration, such as money or mar- riage. A mere voluntary settlement is of no avail against the claims of creditors, although executed for the purpose of making provision for a wife or child. By section 6 the act is made to endure to the end of the first session of the next parliament. By statute 29 Eliz. c. 5, the act is made perpetual. It had previously been confirmed by statute 14 Eliz. ec. ll,s. 1. The Irish act which corresponds with statute 13 Eliz. c. 5, is the statute 10 Car. 1, c. 3, sess. 2, ss. LO—I5. Having made these few preliminary remarks, it will now be expedient to proceed to the discussion of the various points that commonly arise under the act. And the first subject which will be noticed will be the extent to which the consideration of marriage will support a settlement against the claims of creditors and subsequent purchasers. CHAPTER II. The Extent of the Marriage Consideration. —~—- Sect. 1.—Antenuptial Settlements. THE consideration of marriage will support an ante- nuptial settlement against the claims of the settlor’s creditors and against subsequent purchasers (a). Post- nuptial settlements executed in pursuance of antenuptial articles stand on the same footing as antenuptial settle- ments. The present chapter, however, will be devoted to the consideration of settlements executed before marriage. An antenuptial settlement will be equally available against the creditors of and subsequent purchasers from the person bringing the property into settlement, whether that person was the husband or the wife, or some third party who has placed himself in loco parentis to them. Thus it is said in O’Gorman v. Comyn (6), “ If on a marriage and in consideration of that marriage an estate is limited to the husband in fee by other persons who are of the family, and, therefore, may be considered as making provision for the persons (a) Kirk v. Clark, Pr. Ch. 275; Colville v. Parker, Cro. Jac. 158 ; Douglasse v. Waad, 1 Ch. Ca.99; Brown v. Jones,1 Atk. 188; Wheeler yv. Caryl, Amb. 121; but the marriage must have been a valid one. See Chapman v. Bradley, 33 Beay. 61; Coulson v. Allison, 2 Giff. 279; affirmed 3 L. T., N.S. 763. (6) 2 Sch. & Lef. 147; see Power vy. Bailey, 1 Ball & B. 49. BS 10 FRAUDULENT CONVEYANCES. claiming under the settlement, the husband may set up a claim as a purchaser for valuable consideration, not with a view to his own enjoyment simply, but because his enjoyment of the estate is part of the inducement to the marriage itself. For instance, if a father, in con- sideration of the marriage of his son, were to convey an estate in fee to the son, the son would be a purchaser for valuable consideration, though no consideration had passed to the father but the marriage. All provisions made for the husband as well as for the wife and issue by a marriage settlement are to be taken as for valuable consideration.” An antenuptial settlement made by a husband on his wife and family will be supported, against his creditors, although he was greatly indebted and even insolvent at the time it was executed, if it can be shown that the wife was no party to a scheme to defraud the creditors of her husband. She would probably be deemed guilty of participation in the fraud if the settlement was grossly out of proportion to the station and circumstances of the husband, or if it contained on the face of it something so extravagant that it ought to have led to inquiry (c). In Campion v. Cotton (d), the husband was in pecuniary difficulties at the time of the settlement, and his em- barrassment was well known to the wife. The property settled consisted of stock, plate, furniture, jewels, &c., together with some real estate. There was a false recital that this property had been purchased with money belonging to the wife. After the death of the settlor, an attempt was made by his creditors to set aside (ce) Ex parte M Burnie, 1 D..G., M. & G. 441. See pp. 446, 447. (@) 17 Ves, 264, cited 1 Giff. 63, 64, EXTENT OF THE MARRIAGE CONSIDERATION. 11 this settlement as being in fraud of their rights, but it was upheld by the Master of the Rolls. He said, “ It is clear that, supposing the whole to have been the property of the husband, he might have settled it upon his mar- riage. According to the cases decided at law, even the moveable effects might be so settled; and neither the joint possession which he had of the furniture, nor the want of an inventory, would invalidate the settlement. It is clear also that the fact of his being indebted at the time, and of her knowing him to be so, would not affect its validity. . . . The utmost the creditors can make of the falsehood in the deed is, that the property was in truth the husband’s, though it was asserted to be the wife’s; but if he could settle this property, and has done what bound him to give a title to it, supposing it to be his, how are they advanced by establishing that fact ? All she could necessarily collect from seeing it asserted in the preceding declarations of trust that the real estate had been purchased with her money, contrary to that fact, was, that he chose to take that mode of giving her those estates. I do not think it can be inferred from the evidence that she knew he was in such circumstances as to make his bounty to her a fraud upon any one.” Where the wife is privy to the fraud upon the creditors the settlement is clearly void against them: thus in Fraser v. Thompson (e), a man who was a trader had before the execution of his marriage settlement com- mitted several acts of bankruptcy. The wife was well aware of this, and had secreted her intended husband from his creditors. Although the marriage was in ful- filment of a long engagement, the settlement was held to be void against the husband’s assignees in bankruptcy, (e) 4 De G. & J. 559, overruling Stuart, V.-C., 1 Giff. 49. 12 FRAUDULENT CONVEYANCES. in consequence of the participation of the wife in the fraud. In Columbine v. Penhall(f), a solicitor and money scrivener had cohabited with a woman for seven years. Being in insolvent circumstances, and intend- ing to screen his property from his creditors, he married the woman, and by a settlement executed prior to the marriage, he conveyed and assigned the whole of his real and personal property to trustees upon certain trusts for his wife, with a joint power for himself and his wife to appoint amongst the children of the marriage (including an illegitimate daughter). With the excep- of this power, he reserved no interest to himself in the property. The power was shortly afterwards exercised in favour of the illegitimate daughter. The property remained under the control of the husband, and within two months after the marriage a fiat in bankruptcy was issued against him. On a bill brought by the wife to establish the settlement, it was held that the transaction was a mere contrivance by the husband and wife to remove the husband’s property from the reach of his cre- ditors, and to enable them to enjoy it in the same manner as they did before the marriage; and that, as the husband was a trader within the bankrupt laws, the settlement was an act of bankruptcy and void against the assignees. In Bulmer v. Hunter (g), Vice-Chancellor Malins pro- nounced against the validity of a settlement on the same grounds, saying that it was clearly his opinion that arrangements made on a marriage, which is got up by the settlor and his wife for the purpose of defrauding his creditors, could not be supported. (f) 18m. & Giff. 228. And see Penhall v. Hlwin, 1 Sm. & Giff. 258; Ew parte Mayor, Mont. 292; Davies v. Thomas, 2 Y. & C. Eq. Rep. 234. (g) 8L. R., Eq. 48. EXTENT OF THE MARRIAGE CONSIDERATION. 13 It is decided by the case of Chubb v. Stretch (h), that property which is settled by a woman upon her marriage to her separate use is liable after her husband’s bankruptcy for debts contracted by her before her mar- riage. In his judgment Vice-Chancellor Sir R. Malins made the following observations: ‘“ The law as to the liability of a husband for the debt of the wife contracted before marriage proceeds upon this principle, that as by the common law the husband takes all the property of the wife, he is liable for her debts. But the husband and wife must be sued jointly for the wife’s debt, and if no action is brought during the coverture and the wife survives, she remains just as liable for the debt as she was before the marriage; but if an action is brought and judgment recovered against husband and wife during the coverture, and if the husband becomes bank- rupt, and obtains his discharge, I am bound to assume from the authorities, and especially Lord Denman’s judgment in Lockwood v. Salter (7), and the dictum of Lord Macclesfield in Miles v. Williams (hk), that the liability of the husband and of the wife for the wife’s debt is gone at law. . . . . . But this suit is founded on the principle that though the wife is per- sonally discharged at law, her property, so far as she takes a separate interest under the settlement, is not discharged from the liability to satisfy her debt. If it were the law that a woman. may contract debts having the means to pay them, and then may marry and exe- cute a settlement of her property, reserving it to her (Ah) 9 L. R., Eq. 555. See M'Henry v. Davies, 10 L. R., Eq. 88. (i) 5 B. & Ad. 303. (k) 1 P. Wms. 249, 257. See also Biscoe v. Kennedy, 1 Bro. C. C. 17, 0.; Sparkes v. Bell, 8B. & C.1; Bonner v. Bonner, 17 Beay. 86. 14 FRAUDULENT CONVEYANCES. separate use, and that thereby her property is completely absolved from all liability for her debts, it would be very much to be deplored. In my opinion every settlement which takes property out of the reach of the creditors of the settlor savours of fraud. Persons who make a settle- ment on marriage ought to make proper provision for the payment of their debts, and if they do not make such provision the court ought to regard the transaction as one which deserves disapprobation. This lady has made a settlement of all her property to her separate use during the joint lives of herself and her husband, and it would be most unjust and inequitable that she should deprive her creditors of the payment of their debts. Is she entitled todo so? There is no question that debts incurred by a married woman may be en- * forced against her separate estate. It is also perfectly clear that if a man by a marriage settlement reserves a life interest for himself in the settled property, that life interest is liable to his creditors. Why should not the same rule apply toa woman? I think that, upon every principle of justice, if a woman reserves a separate inte- rest it should remain liable to her creditors.” By section 12 of the Married Women’s Property Act, 1870 (33 & 34 Vict. c. 93), it is enacted, that a husband shall not by reason of any marriage taking place after the commencement of that act be liable for the debts of his wife contracted before marriage, but that the wife shall be liable to be sued for, and any property belonging to her for her separate use shall be liable to satisfy, such debts as if she had continued un- married. Marriage settlements frequently contain covenants that all property to which the wife or her husband in her right EXTENT OF THE MARRIAGE CONSIDERATION. 15 may become entitled during the coverture shall be as- signed to the trustees upon the trusts of the settlement (/). Sometimes, too, it is covenanted that some portion of the husband’s future acquired property shall be settled in the same manner(m). As the effect of these agree- ments is to entrench upon the rights of creditors, a special clause is inserted in section 91 of the new Bankrupt Act of 1869, whereby it is provided that any covenant or contract made by a TRADER, in considera- tion of marriage, for the future settlement upon or for his wife or children of any money or property wherein he had not at the date of his marriage any estate or in- terest, whether vested or contingent, in possession or re- mainder, and not being money or property of or in right of his wife, shall, upon his becoming bankrupt before such property or money has been actually transferred or paid pursuant to such contract or covenant, be void against his trustee appointed under the act. In Hardey v. Green (n), by articles executed pre- viously to a marriage, a husband and wife agreed to settle all their after acquired property. Neither the husband nor the wife had any property at the time of (2) As to covenants to settle after-acquired property, see Peachey on Settlements, Chapter XVI. Davidson’s Precedents in Conveyancing, vol. 3, p. 142. (m) White v. Anderson, 1 Ir. Ch. Rep. 419; Brashier v. Wyatt, 16 L. T., N.S. 275; Creed v. Carey, 7 Ir. Ch. Rep. 295; Lyster v. Bur- roughs, 1 Dr. & Wal.175; Maclurcan v. Lane, 5 Jur., N.S. 56; 7 W. R. 135, 8. C.; Nayler v. Wetherell, 4 Sim. 114; Lewis vy. Madocks, 8 Ves. 150; 17 Ves. 48, S.C. A covenant by a man to pay » sum of money out of property of which he shall die seised or possessed is con- fined to property which is strictly his at the time of his death, viz., that remaining after payment of his debts. Ronen v. Chute, 13 Ir. Ch. Rep. 169; Garthshore v. Chalie, 10 Ves. 1. (n) 12 Beay. 182; Stack v. Royse, 12 Ir. Ch. Rep. 246. 16 FRAUDULENT CONVEYANCES. the marriage, and the husband before long took the benefit of the Insolvent Act. Afterwards he inherited some real estate in Ireland, and some personalty. An attempt was then made to impeach the settlement on the ground that a covenant so extravagant and contrary to the policy of the law ought to be treated as fraudu- lent; but the Master of the Rolls held, that as against the assignee in insolvency the subsequently acquired property was bound by the articles. It may be advantageous here to advert to an im- portant difference which prevails between the rules of law and equity as to the conveyance of property of which the grantor has not the possession at the time of the transfer. At law a deed which purports to convey property, whether real or personal, which is not in existence is void, for the simple reason that there is nothing for the instrument to operate upon(o). In equity an agreement to transfer property which is not in existence, though it cannot effect a present alienation, will nevertheless operate as a charge upon the property as soon as it is acquired, and the transferor will thence- forth be a trustee for the transferee upon the terms of the agreement. This rule of equity, however, is not applicable where the agreement is not one of which the court would decree specific performance (p); nor where the contract amounts merely to a licence to seize, and not to an equitable assignment of the after acquired property (q). (0) Holroyd v. Marshall, 10 H. of L. 191, 210; 33 L. J., Ch. 193, 196, 8. C.; Per Lord Westbury, L. C., Deacon vy. Smith, 8 Atk. 323; Chitty on Contracts, 7th edit., p. 349. (p) Ibid. (q) Reeves v. Whitmore, 33 L. J., Ch. 63 ; Hope v. Hayley, 5 E. & B. 830; Belding v. Read, 3 HW. & C.955; and see Carr v. Acraman, 11 Exch. 566; Chidell v. Galsworthy, 6 C. B., N. 8. 471. EXTENT OF THE MARRIAGE CONSIDERATION. 17 It is impossible to set aside a marriage contract, after the marriage has taken place, on the ground that there has been a failure in the performance of some collateral act or thing which formed part of the agreement when the marriage was stipulated for. The reason is, as pointed out by Lord Cottenham in Lloyd v. Lloyd (r), “that the parties to the contract are not the only persons having an interest in the subject, but the contract is made by them on behalf of the issue of the marriage” (s). This rule, however, only applies to the parties to whom the consideration of marriage ex- tends, and therefore, where a husband has been dis- appointed of the portion he was to have received with the wife, he cannot be compelled to perform his part of the marriage agreement by collaterals, who are only volunteers and not within the marriage considera- tion (¢). And equity will not allow a person who has failed to perform his part of a marriage contract to enforce it, against those whom he has injured by his default (w), and his creditors can stand in no better position (x); but the default of a husband or wife will not affect the children of the marriage, for whom the settlement will be specifically carried out (y). (r) 2 My. & Cr. 192, 204. (s) See also Lord Hardwicke’s remarks in Harvey v. Ashley, 3 Atk. 607, 610; Perkins v. Thornton, Ambler, 502; North v. Ansell, 2 P. W. 618; Campbell v. Ingilby, 21 Beav. 567, 579; 1 De G. & J. 393, 8. C.; Lang v. Lang, 8 Sim. 451; Jeston v. Key, 6 L. R., Ch. 610. (t) Savill v. Savill, 2 Coll. 721; Campbell v. Ingilby, 21 Beav. 567; 1DeG. & J. 393, 8. 6. (u) Crofton v. Ormsby, 2 Sch. & Lef. 602; Jeston vy. Key, 6 L. R., Ch. 610. ‘ (x) Priddy v. Rose, 3 Meriv. 86; Ex parte Mitford, 3 Meriv. 105; 1 Bro. Ch. Ca. 398, S. C.; Houston v. Barry, 5 Ir. Eq. Rep. 294. (y) Crofton vy. Ormsby, supra. 18 FRAUDULENT CONVEYANCES.. Sect. 2.— To whom the Consideration of Marriage extends. The consideration of marriage is the most valuable known to the law, and will support all the limitations contained in a marriage settlement in favour of the hus- band, wife, and children, who are consequently pur- chasers of their respective interests (z). The collateral relations of the husband and wife, however, are not within the marriage consideration, and therefore the settlement, so far as their interests are concerned, must be looked upon as voluntary (a); unless it can be shown that some special stipulations were made on behalf of collaterals when the marriage was in treaty. The fact of such stipulations having been made is to be inferred from the circumstances of each particular case, either by considering the terms of the deed or by calling in the aid of extrinsic evidence (6). It is not easy to collect from the cases any precise rule as to when limitations to collateral relations in a marriage settlement may be supported against the set- tlor’s creditors and subsequent purchasers from him on the ground of such limitations having been the subject of special arrangement. The result of the authorities on this subject is thus stated by Mr. Dart in the work on Vendors and Purchasers of Estates(c): ‘ Where the (2) Nairn v. Prowse, 6 Ves. 72; Reeves v. Reeves, 9 Mod. 132; Hill v. Gomme, 5 My. & Cr. 250; 1 Beav. 540, S.C. Where a power of appointment is given to the husband or wife by the settlement, persons taking under the power are within the marriage consideration. Camp- bell v. Ingilby, 21 Beay. 567, 580. (a) Wollaston vy. Tribe, 9 L, R., Eq. 44. (b) In re Cullin’s Estate, 14 Ir. Ch. Rep. 506, 509. (c) Page 817, 4th edit. EXTENT OF THE MARRIAGE CONSIDERATION. 19 hmitations over are in favour of the collateral relations or connections, not of the settlor, but of the other con- tracting party (whether wife or husband), the settlement itself may be considered prim facie evidence of such other party having stipulated for their insertion. So, where, on a settlement of the intended wife’s estate, the limitations over are in favour of her own collateral relations, in derogation from the husband’s marital right by survivorship (in case of personalty), or as tenant by the curtesy (in the case of realty). Where, in any case, other than that last referred to, the limitations over are in favour of the collateral relations or connections of the settlor, such presumption cannot so readily arise; but it might be proved that the other party stipulated for their insertion. If such a stipulation cannot be presumed or proved, the limitations must, it is conceived, be con- sidered voluntary, and void as against a subsequent bond fide purchaser.” These remarks of Mr. Dart are cited with approval by Mr. Justice Blackburn in the case of Clarke v. Wright (d); it may therefore be well to consider how far they are borne out by the opinions of other judges. (1.) With regard to the first statement in the above cited passage from Mr. Dart’s work, viz., that the party who is NoT the settlor may be considered to have stipu- lated for the insertion in the settlement of all the limita- tions to his or her own relations, which amounts to saying that the settlor cannot be considered as pur- chasing any of the estates which are limited to the collateral branches of his own family, it may be well to refer to the judgment of Mr. Justice Christian in the (da) 6H. & N. 864, 865. 20 FRAUDULENT CONVEYANCES. case of In re Browne’s Estate (e), which contains a very full explanation of the law upon the subject now under discussion. ‘ Much confusion,” said the learned judge, “has arisen in cases of this kind, by not dis- criminating between CONSIDERATION and CONTRACT. The consideration of marriage pervades the whole settlement, and is amply sufficient to validate every- thing, which, either by expression or by legal inference, appears to have been contracted for. But considera- tion is a negative, till called into action by a contract. You must show that the thing has been contracted for, before the consideration can attach upon it; and it is in the union of the two that the idea of a purchase consists. But does the law presume that, merely because certain limitations are found in a marriage settlement, all of them were matter of mutual stipulation in the marriage treaty, and therefore all purchased by the marriage consideration? No such thing. Each limitation is regarded separately, according to its own intrinsic nature; and the question, whether it is purchased or whether it is voluntary, must be judged of by the good sense of the case, and the intent of the parties. This is well illustrated by the distinction we find prevailing in the class of cases relating to limitations to collateral relations. If they are the relations of the serrior, the limitations will be void against subsequent purchasers, just as they would if contained in a deed, which was not a mar- riage settlement, but wholly voluntary. Why? because it would be unreasonable to suppose that the wife had stipulated for these collateral relations of the husband. - . But if the collateral relations provided for (e) 13 Ir, Ch. Rep. 283, 295; and see Dart, V. & P. 4th edit. pp. 816, 817. EXTENT OF THE MARRIAGE CONSIDERATION. 21 be those of the OTHER PARTY to the marriage treaty, e. g., brothers and sisters of the wife (the husband being the settlor), the limitations will prevail against subse- quent purchasers. Why? because their appearance in the settlement cannot possibly be accounted for, except upon the assumption that they were bargained for by the wife or her friends.” These observations are in full accordance with the opinion expressed by Mr. Justice Williams in the case of Clarke v. Wright( f), where he said: “ In a settlement in contemplation of marriage of the estate of the husband or wife, he or she to whom the estate to be settled belongs, being the GRANTOR of the estates created by the settlement, cannot, it should seem, be deemed to have thereby purchased any one of them; but the party to whom the estate does Nor belong may be regarded as having purchased by the marriage all those limitations of the estate for which he or she can be proved or fairly inferred to have stipulated, such as the limitations in favour of them- selves respectively or their issue. And so with re- spect to limitations in favour of the collateral relations of the party to whom the estate does nor belong, for it may well be presumed that such party stipulated, as part of the marriage bargain, for their imsertion into the settlement, and so may be properly regarded as having purchased them on behalf of those who are to be benefited thereby. But an intended wife cannot be inferred to have stipulated on the part of the relations of the intended husband, nor the intended husband for the relations of the intended wife.” The above opinions may be further illustrated by the (f) 6H. & N, 849, 877; 5 H. & N, 401, 8. C. 22 FRAUDULENT CONVEYANCES. case of Barham v. The Earl of Clarendon (gq), in which a husband, who was entitled in fee, settled his estates on his marriage upon himself for life, with remainder to his wife for life, if she survived him, with remainder to himself in fee. It was held that he could not be con- sidered to have purchased anything under the settle- ment, because the wife could not be supposed to have stipulated for the husband, nor even for his heirs, if the limitation had been to them. And in the case of Massey v. Travers(h), an ultimate limitation to the settlor in fee was treated as voluntary for the same reason. In the case of In re Browne (i), above cited, the husband’s estates were limited to himself for life, with remainders over ; and it was held that a judgment entered up before the estates were settled, although not reregistered pursuant to the statutes relating to the registration of judgments, was a subsisting charge upon the life estate of the husband, inasmuch as he was not a purchaser of the estate limited to him. It should, however, be mentioned that the Lord Chancellor of Ireland differed from the other judges before whom the case was heard. (2.) The next proposition of Mr. Dart is, that where the wife is the settlor she may be considered to have purchased all the estates which are limited to her own collateral relations in derogation of her hus- band’s marital rights. The grounds on which this statement of the law rests appear to be that the limita- (g) 10 Hare, 126. (Ay 10 Ir. C. L. Rep. 459; and see Johnson v. Legard, 3 Madd. 283; 6M.& 8.60; Turn. & R. 281, 8. C.; Stackpoole v. Stackpoole, 4 Dr. & W. 320; 2C. & L. 489, S. C.; and Cormick v. Trappaud, 6 Dow. 60, where limitations to the settlor’s brothers were held to be voluntary, (4) 18 Ir. Ch, Rep. 283, supra, p. 20. EXTENT OF THE MARRIAGE CONSIDERATION. 23 tions to the wife’s relations, which derogate from her husband’s marital rights, so greatly interfere with the ordinary rights of the parties that some special stipula- tion may fairly be presumed to have been made by the wife on behalf of her friends when the settlement made on her marriage was under consideration. However, in Smith v. Cherrill (hk), the husband’s interest in the wife’s real and personal estate was given up for an annuity which was not to take effect till after the determination of the estates limited to the wife, the children of the marriage, and the wife’s relations ; nevertheless a limita- tion in favour of the wife’s niece and adopted child was not allowed to prevail over creditors. In re Cullin(d, the estate was the husband’s, and the limitations to his collateral relations were held void; but in the judgment of Mr. Justice Longfield there are some observations on the effect of a settlement by the wife of her property on her own collateral relations, to which it may be well to refer. According to the views of this judge the wife, when she is the settlor, may fairly be looked upon as a pur- chaser of all the limitations which are contained in the settlement, either in favour of herself and her children, or in favour of her relations; and this is so, although the limitations are not in derogation of the husband’s marital rights, for the disability of coverture prevents the wife from making any provision during her hus- band’s lifetime for her relations, so that she may very reasonably be supposed to have stipulated for the inser- tion of the limitations to them in the settlement of her (2) 4L. R., Eq. 390. See Cotterell v. Homer, 13 Sim. 506. (2) 14 Ir. Ch. Rep. 506. 24 FRAUDULENT CONVEYANCES. property. An argument which has of course no applica- tion where it is the husband’s estate which is settled, for, being under no disability, he can during the coverture make any provision he thinks fit for his relatives out of the estates limited to him (7m). (3.) Continuing the examination of Mr. Dart’s ob- servations, it will be advisable in the next place to bring forward some authorities showing that limitations to the collateral relations of the party settling the pro- perty may be supported in cases where an express stipulation in favour of such relations may fairly be supposed to have been made. The courts have readily inferred a stipulation on behalf of the children of a former marriage. Thus, in Ithell vy. Beane(n), a man on his second marriage settled property for the benefit of his intended wife and the issue of the marriage, and also for the benefit of a son by his first wife. This last limitation was held not to be fraudulent against creditors. In Newstead v. Searles (0), a settlement executed by a widow on her second marriage contained a limitation of her property to the issue of her first marriage, and it was held that such limitation was not voluntary against subsequent. purchasers. This principle has even been extended to the case of an illegitimate child. Thus, in Clarke v. Wright(p), a widow, by a settlement made in contemplation of marriage, reciting that, upon the treaty for the said (m) S. CG, p. 510; and see the argument for the defendant in Cotte- rell v. Homer, supra. (n) 1 Ves, 215. (0) 1 Atk. 264; Cowper, 280, S. C. (p) 6 H. & N. 849; 5 H. & N. 401; nom. Dickenson v. Wright, S.C. 4 EXTENT OF THE MARRIAGE CONSIDERATION. 25 marriage, it was agreed that her property should be settled as thereafter mentioned, limited her property to trustees, upon certain trusts, for her husband and her illegitimate son. The widow and her husband after- wards mortgaged the estate. In ejectment by the son against parties claiming through the mortgagee, it was held, that the limitation to the son must be looked upon as having been stipulated for at the time of the marriage treaty, and that, as it therefore was supported by valuable consideration, it would prevail against sub- sequent purchasers. A rule which had been moved for to set aside a verdict for the plaintiff was therefore dis- charged by the Court of Exchequer. On appeal this judgment was affirmed by the Court of Exchquer Chamber, although Willams, J., was of a different opinion from the rest of the court. As the reasons given by the judges in the Court of Exchequer Cham- ber for affirming the decision of the court below are founded on different views of the law relating to limita- tions to collaterals, it may be advisable to refer to the judgments which were delivered. Mr. Justice Black- burn thought that as the limitations in Clarke v. Wright so interfered with those which would naturally be made in favour of the husband, wife and issue, as to indicate that the limitations must have been discussed and made part of the marriage contract, they were therefore not voluntary, but founded on valuable consideration. Lord Chief Justice Cockburn and Mr. Justice Wightman thought that there was no evidence that the limitation to the son had been stipulated for; and that, therefore, it must have been looked upon as voluntary, but for two exceptions which have been engrafted upon the rule which makes all the limitations in a marriage H. F. c 26 FRAUDULENT CONVEYANCES. settlement, other than those to the husband, wife and issue of the marriage, invalid against creditors and subsequent purchasers, unless some special grounds for supporting such limitations are shown. One of these exceptions (in the opinion of these judges) is allowed in favour of the children of a former marriage, and the other in favour of the children of a future marriage ; and they thought that the case before them came within the former of these exceptions, and was governed by Newstead v. Searles (q) and other cases of that class, which have just been referred to. The authorities, however, are not in favour of sup- porting limitations to the children of a future marriage, and the case to which the judges referred in support of their views, namely, Clayton v. Lord Wilton, can be distinguished from the other cases, for reasons which will presently appear. Mr. Justice Williams differed from the other judges. His opinion on the subject of limitations to collateral relations may be seen from the extract from his judg- ment which has been cited above(r). The learned judge considered that Newstead v. Searles was an old case, decided before the rules which prevail at the present day were firmly established, and that, therefore, it ought to be disregarded. In Smith v. Cherrill(s), Vice-Chancellor Malins refused to extend the principle of Clarke v. Wright to the case of a person described as the settlor’s niece and adopted child. The courts have not been so ready to infer a stipula- (q) Supra, p. 24, (r) Page 21. (s) 4.1L. R., Eq. 390. EXTENT OF THE MARRIAGE CONSIDERATION. 27 tion in behalf of the children of a future marriage. In the case of In re Cullin(t), after the usual limitations to the settlor (the husband) and the sons of the mar- riage, the estates were limited to the settlor’s daughters and their heirs. Upon a question whether the daughters of the husband by a second wife took as purchasers, it was held that they took only as volunteers, because neither the husband nor the wife could be supposed to have stipulated for them. And a distinction was drawn between that case and Clayton v. Lord Wilton (u), where a limitation to the sons of a future marriage was supported against. subsequent purchasers, on the ground of there being ulterior limitations to the daughters of the first marriage, which limitations must have failed if the estate given to the sons of a future marriage had not been upheld. And it is said in Sugden’s Vendors and Purchasers, 14th ed. p. 716, n., “that it has been considered that an estate to a stranger may be supported, if required to give effect to subsequent limitations within the con- sideration.” Limitations to collaterals in a marriage settlement may sometimes be supported on the ground that the settlement could not have been made without the con- currence of some person who had a right to stipulate for the insertion of the said limitations. Thus, in Roe vy. Mitton (x), the husband was the settlor, and upon his marriage he executed a settlement which contained a limitation to his own brothers. The settlement could (t) 14 Ir. Ch. Rep. 506. (u) 3 Madd. 302; 6M. & S. 67,n., 8. C. See Beard v. Westcott, Turn. & Russ. 25; 5 B. & Ald. 801, S. C. () 2 Wilson, 356; Jones v. Boulter, 1 Cox, Eq. Ca. 288. c2 28 FRAUDULENT CONVEYANCES. not have been carried into effect without the concurrence of the settlor’s mother, who released part of the lands comprised in the settlement from an annuity to please the lady’s friends. It was decided that the settlor’s mother must be considered to have stipulated for the insertion of the limitation to her sons, as the consider- ation for her joining in the settlement ; and that, there- fore, the limitation was not voluntary. Resettlements of family estates between a father, tenant for life, and his son, tenant in tail, frequently take place; sometimes on the occasion of the son’s mar- riage. Limitations to collaterals contained in such in- struments may be supported on the supposition of their having been made the subject of special stipulation by the contracting parties, each of whom had a right to draw back unless his proposals in favour of his relatives were acceded to. The rule upon this subject is clearly stated by Lord Eldon in the case of Pulvertoft v. Pul- vertoft(y). In Jenkins v. Keymis(z), Sir N. K. was tenant for life, with remainder to his son in tail, with remainder over. On the son’s first marriage, in con- sideration of the said marriage and of 2,500/. portion paid with the wife, the estate was resettled upon Sir N. K. for life, with remainder to his son in tail special, with remainder to his son in tail GENERAL, with re- mainder over, and with power to Sir N. K. to charge 2,0002. It was held, that the limitation to the children of the son by a second wife was not voluntary, and there- fore could be supported against subsequent purchasers. Limitations to collaterals in a marriage settlement after a VESTED estate tail have been supported against (y) 18 Ves. 84, 92. (2) 1 Lev. 150, 237; 1 Ch. Ca. 103, & C. EXTENT OF THE MARRIAGE CONSIDERATION. 29 subsequent purchasers. Thus, in Lord Teynham’s Case (a), a father, upon the marriage of his eldest son, settled estates upon the eldest son in tail, with remainder to the father’s second son in tail; and it was held, that the limitation to the second son was not fraudulent against purchasers, because it was after an estate tail, which could be barred at any time, and might endure for ever. (a) 2 Levinz, 105. See Staplehill v. Bully, Pr. Ch. 224; Sugden V. & P., 14th edit. 716. 30 FRAUDULENT CONVEYANCES. CHAPTER III. Concerning Postnuptial Settlements in pursuance of Antenuptial Articles. A SETTLEMENT executed after marriage in pursuance of an antenuptial agreement IN WRITING stands on the some footing, with respect to creditors and subsequent purchasers, as a settlement executed before marriage (a). Consequently the remarks made in the preceding chapter with respect to the marriage consideration, and its effect in supporting the limitations to the husband and wife and the issue of the marriage, together with the observations upon limitations to collaterals, apply with as much force to postnuptial settlements in pursu- ance of antenuptial written articles as to antenuptial settlements. Although articles for a marriage settlement receive a very liberal construction, and words, which would under ordinary circumstances give an estate tail to a parent, will generally be interpreted so as to give him an estate for life only, with remainder in strict settle- ment to his issue; nevertheless, if a postnuptial settle- ment extends to a class of persons which was not con- templated by the antenuptial agreement, the settlement, so far as the limitation to these persons is concerned, (a) Sugden, V. & P., 14th edit. 718; Martin v. Scamore, 1 Ch. Ca. 170; Doe d. Barnes v. Rowe, 6 Scott, 525; 4 Bing. N. C. 787, 8. C.; Brunsden v. Stratton, Pr. Ch. 520. SETTLEMENTS IN PURSUANCE OF ARTICLES. 31 will be unsupported by the marriage consideration, and therefore void against creditors and subsequent pur- chasers. Consequently, a bond given by a husband before marriage to provide a jointure for his wife will not support a settlement executed after marriage upon the wife and the issue. The limitation to the issue is voluntary, and void against creditors and subsequent purchasers (4). Moreover, the agreement in pursuance of which the settlement is made must have been a binding one; and therefore a settlement made after marriage in pursu- ance of an antenuptial agreement which could not have been enforced against the settlor is a voluntary instru- ment, and of no avail against creditors(c). It follows from this that a postnuptial settlement in pursuance of an antenuptial agreement which is not in writing and signed in the manner required by the Statute of Frauds will not be supported against the claims of the settlor’s creditors(d); unless there are circumstances (other than the marriage itself), amounting to part performance of the contract to take the case out of the statute (e). (6) Jason v. Jervis, 1 Vernon, 286; and see Gates v. Fabian, 19 W. R. 61. (c) See Greene v. Cramer, 2C. & L. 54; 3 Dr. & War. 87, 8. C.; Beaumont v. Carter, 32 Beav. 586; Luders v. Anstey, 4 Ves, 501; Caton v. Caton, 1L. R., Ch. 107; 2L.R., H. L. 127, S. C.; He parte Gardner, 11 Ves. 40; Ea purte Campbell, 16 Ves. 244. (d) See Story on Eq. § 374; Atherley on Settlements, 149; Browne on the Statute of Frauds, 2nd edit. 227—230. The Statute of Frauds does not apply to mutual promises to marry, but only to promises to make a settlement or to do some collateral act in consideration of the marriage. Buller, N. P. 380 (¢); Jorden v. Money, 5H. of L. 185, 207. (e) Lassence v. Tierney, 1 Mac. & Gor. 551, 571; Warden v. Jones, 32 FRAUDULENT CONVEYANCES. The evils which would occur if the courts were to uphold against creditors a postnuptial settlement made in pursuance of a parol contract are clearly pointed out by Lord Northington in the case of Spurgeon v. Col- lier (f). He said: “Ifa parol agreement entered into before marriage were to be allowed to give effect to a settlement executed subsequently to the marriage, it would be the most dangerous breach of the Statute of Frauds, and a violent blow to credit. For any man on the marriage of a relation might make such a pro- mise, of which an execution never could be compelled against the promisor, and the moment his circumstances failed he would execute a settlement pursuant to his promise, and defraud all his creditors.” In Goldicutt v. Townsend(g), during the negotiations which pre- ceded the marriage of the Rev. G. T. Townsend with Miss Ditmas, the father of Mr. Townsend promised to leave his son and his children the sum of 5,000/. The promise was by parol, and it was not shown that the marriage was celebrated upon the faith of it. Two years after the marriage the father executed a bond to secure the sum of 5,000/., payable within six months 23 Beay. 487; 2 De G. & J. 76, S. C.; Surcome v. Pinniger, 3 DeG., M. & G. 571; Randall v. Morgan, 12 Ves. 67; Taylor v. Beech, 1 Ves. sen. 297; Caton v. Caton, 1L. R., Ch. 137; 2L. R., HL. 127, S.C. Where the rights of creditors do not intervene, the requirements of the Statute of Frauds are satisfied by a postnuptial settlement or memorandum in writing, referring to a parol promise made before the marriage. See Hammersley v. De Biel, 12 C. & F. 45; 3 Beav. 267, 8. C.; Barkworth v. Young, 4 Drew. 1,12; Browne on the Statute of Frauds, 230. (f) 1 Eden, 61; Battersbee v. Farrington, 1 Swanston, 106, 113; Randall v. Morgan, 12 Ves. 67. See Dundas v. Dutens, 1 Ves, jun. 196, (g) 28 Beay, 446, SETTLEMENTS IN PURSUANCE OF ARTICLES. 33 after his decease, and by a contemporaneous deed this sum was settled on the Rev. G. T. Townsend, his wife, and children. The father died without leaving suf- ficient assets to pay his debts, and it became necessary to determine whether the bond given after the marriage could be supported against his creditors. It was held by the Master of the Rolls that the bond and settle- ment, having been executed merely in pursuance of a parol promise, were without consideration and void against creditors (/). Marriage is not such a part performance of a contract in consideration of marriage as will take the case out of the Statute of Frauds; for, as the court observed in the case of Caton v. Caton(z), “ marriage is necessary in order to bring a case within the statute, and to hold that it also takes the case out of the statute would be a palpable absurdity.” In Warden v. Jones (hk) a hus- band prior to his marriage entered into a parol contract to settle his intended wife’s property. No settlement was executed by him till after the marriage. A cre- ditor’s suit was instituted in order to set aside the in- strument as voluntary and fraudulent, inasmuch as the husband was greatly indebted at the time of its execu- tion. One defence was, that the case was taken out of the Statute of Frauds by reason of the marriage being a part performance of the husband’s contract. But the Master of the Rolls said: “‘ The statute expressly states that a parol agreement made upon consideration of (h) See also M‘Askie v. UM‘ Cay, 2 Ir. Rep., Eq. 447; L’ Estrange v. Robinson, 1 Hogan, 202; Spicer v. Spicer, 24 Beav. 365; In re Gul- liver, 2 Jur., N. 8. 700. (i) 1L. R,, Ch. 187, 147; 2 L. R., H. L. 127, 8. C (£) 23 Beay. 487; 2 De G. & J. 76, 8. C. cé 34 FRAUDULENT CONVEYANCES. marriage shall not in fact constitute a valid agreement, and that no action shall be brought to charge any per- son on it. If it had not been for the positive words of the statute it is probable, having reference to the doc- trine of this court upon matters of part performance, that it would have been held that the marriage was a part performance of the contract. The words of the statute are, ‘that no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, unless the agreement upon which such action shall be brought, or some memoran- dum or note thereof, shall be in writing and signed by the party to be charged therewith.’ (/). But for that statute, I apprehend, having regard to the doctrine of a Court of Equity with respect to part performance, a parol agreement followed by marriage would have been treated as a part performance. Certainly it is quite as much a part performance as a parol agreement for the sale of lands, where the whole of the purchase-money is paid; but here it is more, the whole of the conside- ration is paid and the purchaser has been put into posses- sion. The words of the statute, however, are precise upon the point” (m). Where the property which is agreed to be settled is before the marriage actually transferred into the hands of trustees, the trusts upon which the property is to be held may be declared subsequently to the marriage; and creditors will not be able to invalidate the instru- (2) 29 Car. 2, ¢. 3, 5. 4. (m) S. C, pp. 492, 493; and see Lassence v. Tierney, 1M. & G. 551; 2H. & Tw. 115, 8. C; Taylor v. Beech, 1 Ves: sen. 297; Red- ding v. Withes, 3 Bro. C. C, 400; Shadwell vy. Shadwell, 30 L. J., C. P. 145. SETTLEMENTS IN PURSUANCE OF ARTICLES. 35 ment containing the declaration of trust on the ground that it is postnuptial and voluntary(n). The rule on this subject is thus stated by the Master of the Rolls in the, case of Cooper v. Wormald(o): “If a man, upon his marriage with a lady, enters into a mere parol agreement with her that a sum of money shall be trans- ferred to trustees upon trusts for himself, his intended wife, and the children of the marriage, and the money is before the marriage actually transferred to the trustees, who hold it solely upon the trusts agreed upon, the fact that the instrument declaring the trusts is executed by them subsequently to the marriage does not make it a voluntary instrument, or enable creditors to set it aside on the ground that it is not made BONA FIDE in con- sideration of the marriage.” Although the Statute of Frauds requires promises relating to marriage to be in writing; nevertheless in cases of fraud equity will relieve in spite of the words of the statute(p). Therefore if the execution of an antenuptial agreement be prevented by collusion or fraud, equity will treat the agreement as if it had actually been executed(q). In Montacute v. Max- well(r), where the husband privately countermanded the instructions which he had given for a settlement, and then induced the wife by persuasions and assur- (m) The Statute of Frauds, s. 7, requires declarations or creations of trusts of LANDS to be manifested or proved by writing. See Lewin on Trusts, 5th edit., 45, 46, 47. (0) 27 Beav. 266. (p) Montacute v. Maxwell, 1 P. Wms. 620; Mallet v. Halfpenny, 1 Eq. Ca. Abr. 20; 2 Vernon, 373, 8. C (q) Middleton v. Middleton, 13. & W. 94. (r) 1 Eq. Ca, Abr, 20; 1 P. W. 620; 1 Strange 236; Pr. Ch. 526, S.C. 36 FRAUDULENT CONVEYANCES. ances to marry him, the court held the settlement to be binding upon him. But if there is no fraud on the part of the husband, but merely a reliance by the wife upon his promise to make adequate provision for her and the children of the marriage, then, as the Statute of Frauds makes these promises void unless they are in writing, equity will not interfere(s). And it is a well esta- blished rule, both at law and in equity, that if a person, with the view of inducing others to celebrate a mar- riage, makes parol representations, in reliance upon which the marriage afterwards takes place, he will be compelled to make his representions good, and will not be allowed to screen himself from liability by setting up the Statute of Frauds, which requires all promises relating to marriage to be in writing. The two leading cases on this subject are Hammersley v. De Biel(t) and Jorden v. Money (u); in the former of which Lord Cottenham said: “ The principle of law, at least of equity, is this—that if a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in conse- quence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a court of equity will take care that he is not disappointed, and will give effect to the proposal”(v). The case of Jorden v. (s) Per Lord Hardwicke in Montacute v. Maxwell, 1 P. W. 620. See Warden v. Jones, 23 Beav. 487; 2DeG. & J.7 6, S.C. (¢) 12 C. & F. 45, 78; 8 Beav. 269, S.C See Bold v. Hutchinson, 20 Beav. 250; 5 DeG., M. & G. 558, 8. C.; Smith v. Kay, 7 H. of L. 751, (u) 5H. of L. 185; 2 DeG., M. & G. 318; 15 Beav. 372, 8. C. (vw) 12 C, & F. 78, 79. SETTLEMENTS IN PURSUANCE OF ARTICLES. 37 Money (x) shows that this rule is to be confined to MIs- REPRESENTATIONS OF FACTS, and that it is not to be extended to statements made by a person of something that he INTENDS or does not INTEND to do with reference to an impending marriage. This distinction lies in this, that where one person, by misrepresenting certain facts, induces another to alter his condition, or to enter into a marriage, this amounts to a fraud, and the party making the representation ought to be compelled to act up to it; whereas the mere expression of INTENTION to do or to leave undone any particular thing with reference to a marriage is not a misrepresentation, but can amount at the most to a contract, which the Statute of Frauds requires to be in writing and signed by the party to be charged upon it (y). And it is to be observed, moreover, that the rule laid down in Hammersley v. De Biel (z) can only apply where the representations which are sought to be en- forced were made in such terms and under such cir- cumstances that it may fairly be inferred that they were intended to influence the conduct of another per- son; because no effect can be attached to loose and vague expressions made in the course of a correspond- ence or in conversation (a); or to erroneous recitals in (x) Supra, note (uv). Lord St. Leonards dissented in this case from the other judges. (y) See Lord Cranworth’s judgment in Jorden v. Money, 12C. & F. 185, 215, 216; and see Warden v. Jones, 23 Beav. 487; 2 DeG. & J. 76, 8. C. (z) Supra, note (¢). (a) M‘Askie v. M‘Kay, 2 Ir. R., Eq. 447; Williams v. Williams, 37 L. J., Ch. 854; In re Gulliver, 2 Jur., N. 8. 700; Maunsell v. White, 1 Jo. & Lat. 539; 4 H. of L. 1039, S. C.; Kay v. Crook, 3K. & J. 407; 38 FRAUDULENT CONVEYANCES. a deed, which are evidently the result of a common mistake, and which all parties had an equal opportunity of discovering (6). It may here be well to allude to a few of the cases which are generally cited as examples of the rule now under discussion. In Neville v. Wilkinson (c), one Neville, being about to marry, procured a statement of his pecuniary affairs to be drawn up by the defendant for the inspection of his intended father-in-law. In this statement were included some demands of the defendant upon Neville, who thereupon told the defendant that his intended wife’s friends would never consent to the marriage if his debts were represented as so large in amount. This led the defendant to omit any mention of his own demands on Neville, and to make several verbal representations for the purpose of more effectually concealing his claims from Neville’s intended father-in- law. ‘The marriage took place on the faith of these representations, and afterwards the defendant took pro- ceedings for the purpose of recovering his debt. It was held that he ought to be restrained by injunction ; Jamieson v. Steins, 21 Beav. 5; Moneypenny v. Moneypenny, 4K. & J.174. See Ward’s case, 10 L. R., Eq. 659, 662. (0) Evans v. Wyatt, 31 Beav. 217; Ainslie v. Medlycott, 9 Ves. 13, 21, (¢) 1 Bro. Ch. Ca. 543; De Manneville v. Crompton, 1 V. & B. 354; Ainslie v. Medlycott, 9 Ves. 21; Scott v. Scott, 1 Cox, 366; Easta- brook v. Scott, 3 Ves. jun. 456; Ex parte Carr, 3 V.& B. 111; Palmer v. Neave, 11 Ves. 165; Yeomans v. Williams, 1 L. R., Eq. 184; Sur- come v. Pinniger, 3 De G., M. & G. 571; Greene v. Cramer, 2 Con. & Law. 54; 3 Dr. & War. 87, 8. C.; Loxley v. Heath, 1 De G., F. & J. 489; 27 Beav. 523, S. C.; Madow v. Nowlan, Beatty, 632; Mallet v. Half- penny, 2 Vernon, 373; 1 Eq. Ca, Abr. 20, 8. C.; MKeogh v. M‘Keogh, 4 Ir, Rep., Eq. 338. SETTLEMENTS IN PURSUANCE OF ARTICLES. 39 and the Chancellor added his opinion, that the defend- ant could not ever at any time afterwards recover these demands from Neville. In Montefiori v. Montefiori(d), Joseph Montefiori being about to marry, his brother Moses, in order to represent him as a man of fortune, gave him a note for a large amount as the balance of accounts between them, though in truth no such balance ever existed. After the marriage Moses reclaimed the note as having been given without consideration. The arbitrators to whom the case was referred ordered the instrument to be delivered up; but this decision was reversed by the Court of Queen’s Bench. Again, in Gale v. Lindo (e), a brother, on the treaty for the mar- riage of his sister, in order to make her fortune appear as large as possible, allowed her to have the sum of 1602. privately, and took her bond to repay it. The executor of the brother put the bond in suit against the executor of the sister, who survived her husband. Upon a bill to be relieved, the bond was decreed to be delivered up as fraudulent. A great number of other cases might be cited by way of illustration of the rule under consideration, but those which have been noticed will be sufficient. Reference has already been made to the cases of Jorden v. Money (f) and Hammersley v. De Biel(g), which (d) 1 W. B. 362; Kirwan v. Burchell, 10 Ir. Rep., Ch. 63; Stone v. Godfrey, 5 De G., M. & G. 76; Whitmore v. Mackeson, 16 Beav. 126; Goldicutt v. Townsend, 28 Beay. 445, (e) 1 Vernon, 475; Redman v. Redman, 1 Vernon, 348; Hudson v. Cheyney, 2 Vernon, 150; Lamlee v. Hanman, 2 Vernon, 466; Turton v. Benson, 1P. W. 496; Morrison v. Arbuthnot, 8 B. Par. Ca. 247; 1 Bro. Ch. Rep. 547, n., S. C. (Cf) 5H. of L.185; 15 Beav. 372, S. C. (g) 12 C. & F. 45, 78; 3 Beav. 269, S. C.; and see also La parte 40 FRAUDULENT CONVEYANCES. were before the House of Lords, and were, therefore, very fully considered. Where a marriage has been brought about by the misrepresentations of a third person, equity will not, in cases where either the wife or the children of the mar- riage are living, allow the interest of the husband under the settlement to be affected, although he may have been a party to the misrepresentations ; for it is not pos- sible to affect the interest of the husband without in- juring the wife and family, upon whom the deceit has been practised (h). Gardner, 11 Ves. 40; Hx parte Campbell, 16 Ves. 244; Crofton v. Ormsby, 2 Sch. & Lef. 583; Prole v. Soady, 2 Giff. 1; 3. R., Ch. 220, S. C.; Beaumont v. Carter, 32 Beav. 586; Alt v. Alt, 4 Giff. 84; Laver v. Fielder, 32 Beay.1; Walford v. Gray, 11 Jur., N. 8. 473. (A) Thompson v. Harrison, 1 Cox, 344. ( 41 ) CHAPTER IV. Concerning Postnuptial and Voluntary Settlements. A VOLUNTARY settlement is void against all creditors whose debts existed at the date of the instrument if it in any way delays or hinders them in realizing their debts out of the property comprised in it(a). It is also void against creditors whose debts accrued subse- quently, if an express intent to defraud them can be proved. A postnuptial settlement, which is not in pursuance of an agreement in writing made before the marriage, is treated as a voluntary instrument; and, therefore, it can- not be supported if it delays creditors(d). An inquiry into this subject will be found in the preceding chapter. Of course if it can be shown that the settlor received some special benefit, such as an additional portion, the surrender of an estate or the like, as a consideration for making the settlement, it will not be treated as volun- tary, but will be supported against creditors. Post- nuptial settlements which have been upheld on these (a) 13 Eliz. ¢. 5. (6) Beaumont v. Thorpe, 1 Ves. sen. 27. A settlement executed after a marriage in Scotland cannot be considered as antenuptial by reason of the marriage being re-celebrated in England. Zz parte Hall,1V.& B.112; see Dobbyn v. Adams, 7 Ir. Ch. Rep. 173; Adams y. Adams, 8 Ir. Ch. Rep. 41. The statute 18 & 19 Vict. c. 43, which enables infants, upon or in contemplation of marriage, to make, with the approbation of the Court of Chancery, valid settlements of real or personal property, applies to postnuptial settlements. See Powell v. Oakley, 34 Beav. 575. 8 42 FRAUDULENT CONVEYANCES. grounds against creditors will be considered in the next chapter. At present it is proposed to treat only of voluntary settlements. The statute 13 Eliz. c. 5, declares, that all feoffments, gifts, grants, alienations, &c. of lands, goods and chat- tels made with the intent to hinder or delay creditors and others of their just and lawful remedies, shall be utterly void and of none effect. There has been great fluctuation of opinion, however, as to what will furnish sufficient evidence that a voluntary settlement was exe- cuted with the intention on the part of the settlor of defeating or delaying his creditors. In the earlier cases the mere fact of the settlor being in debt was considered enough to avoid the instrument. Thus in Russell v. Hammond (c) Lord Hardwicke said, that he had hardly ever known of a case where the settlor was indebted at the time of the voluntary conveyance, and it was not held to be fraudulent; and he expressed himself to the same effect in Walker v. Burrowes(d). In Scarf v. Soulby (e), Vice-Chancellor Shadwell pronounced against the validity of a voluntary settlement on similar grounds; though his opinion was afterwards overruled by Lord Cottenham. Later decisions advanced the doctrine a step further; and it was held that the mere fact of the voluntary settlor being indebted was not sufficient to invalidate the settlement, but that he must have been insolvent or (ec) 1 Atk. 15; Townsend v. Windham, 2 Ves. sen. 10, 11; Batters- bee v. Karrington, 1 Swanston, 106; Holloway v. Millard, 1 Madd. 414; Lilly v. Osborn, 3 P. W. 298. (d) 1 Atk. 98; Kirk vy. Cureton, 1 Cooper, Rep. Ch. Pr. 191. (e) 16 Simon, 344; overruled 16 Simon, 481; 1 Mac. & Gor. 364, S. C.; Middlecombe v. Marlow, 2 Atk. 519; Stileman v. Ashdown, 2 Atk. 481. VOLUNTARY SETTLEMENTS. 43 nearly so at the time he executed it. Thus in Lush v. Wilkinson, Sir R. P. Arden, M. R., said: “ Every man must be indebted for the common bills of his house, though he pays them every week. It must depend upon this: whether he was in insolvent circumstances at the time the settlement was made” (f ). Subsequent cases, however, have laid down the rule in terms more consistent with the spirit of the statute. The question of fraud does not now depend upon whe- ther the settlement was voluntary, or the debtor insol- vent at the time he made it; but upon whether, con- sidering the amount of his debts, the nature of his pro- perty and its situation, and all the other circumstances of the case, the intention of the settlor in executing the instrument clearly appears to have been to hinder and delay his creditors (7). The rule which at present prevails on this subject is clearly stated by Vice-Chancellor Kindersley in the case of Thompson v. Webster (h), where he said : “ The prin- ciple applicable to cases of this kind is now well settled. It is true that in former times a difference of opinion prevailed, and there have been fluctuations of opinion on the subject. Some of the cases seem to lead to this conclusion, that it is sufficient, in order to bring a set- (f) 5 Ves. 384; Holcroft’s Case, Dyer, 294b; Shears v. Rogers, 3B. & Ad. 362; Manders v. Manders, 4 Ir. Eq. Rep. 434; Martyn v. M‘Namara, 4 Dr. & War. 411, 427; Turnley v. Hooper, 3 Sm. & Giff. 349. (g) Jenkyn v. Vaughan, 3 Drew. 419, 424; French v. French, 6 DeG., M. & G. 95; Clement v. Eccles, 11 Ir. Eq. Rep. 229; Denison vy. Tattersall, 18 L. T., N. 8. 303; Crossley v. Elworthy, 12 L. R., Eq. 188. (h) 4 Drew. 628, 632; 4 De G. & J. 600, S. C. on appeal; 7 Jur., N.S. 531, 8. C. on appeal in Dom. Proc. 44 FRAUDULENT CONVEYANCES. tlement within the statute, to show that it was without valuable consideration; that it was purely voluntary, Other cases appear to lay down the rule, not only that that is not the test, but that the deed is not invalid unless the settlor was indebted to the extent of in- solvency. Neither of these extreme views is now the rule. It is now clear that it is not sufficient that a deed is merely voluntary ; on the other hand, it is not necessary, in order to set aside a voluntary deed, that the settlor should be actually in a state of insolvency. The principle now established is this. The language of the act being, that any conveyance of property is void against creditors if it is made with intent to de- feat, hinder or delay creditors, the court is to decide in each particular case, whether, on all the circum- stances, it can come to the conclusion that the intention of the settlor in making the settlement was to defeat, hinder or delay his creditors.” This decision is in perfect accordance with the opinions of Lord Langdale in Townsend v. Westa- cott(z), of Lord Cottenham in Scarf v. Soulby(h), and of Sir Thomas Plumer in Richardson v. Small- wood (1), where he said that it was not necessary, in order to defeat a voluntary settlement, to prove that (i) 2 Beav. 340; 4 Beay. 58, S. C. (%) 1 Mac. & Gor. 375; 16 Simon, 481, 8. C.; overruling 16 Simon, 365. (2) Jacob, 552; Holmes v. Penney, 3 K. & J. 90, 99; 26 L. J., Ch. 179, S. C3 Acraman v. Corbet, 1 J. & H. 411; Christy v. Courtenay, 26 Beay. 140; 13 Beay. 96, 8. C.; Graham v. O’ Keefe, 16 Ir. Ch. Rep. 1; Luff v. Horner, 3 F. & F. 480; Ex parte Mayou, 11 Jur., N. 8. 433. The principle stated in the text applies to partnerships as well as to private individuals. Therefore a partner has no right to withdraw so much of his money from the partnership capital that the joint creditors are hindered or delayed. In re Kemptner, 8 L. R., Eq. 286. VOLUNTARY SETTLEMENTS, 45 the settlor was insolvent at the time he made it, but that it was enough if it was shown that the deed was made with intent to defraud creditors by placing pro- perty out of their reach. In order that creditors whose debts existed at the time the voluntary settlement was executed may be able to defeat it, it is not necessary that they should show an express design on the part of the settlor to defraud them, by producing evidence of acts done or words uttered by him(m). If the effect of the deed is to hinder existing creditors, a fraudulent intent will be presumed, and the instrument will be void. These remarks plainly do not apply to creditors whose debts accrued subsequently to the date of the voluntary set- tlement. Consequently, it will not be set aside at the instance of those creditors, unless they prove express fraud on the part of the settlor; or unless they show that the settlement was a fraud upon creditors whose debts existed at the time it was executed, and further, that these debts remain unpaid, in which case, as will hereafter appear (n), subsequent creditors may file a bill to set the instrument aside, and may recover their debts out of the property comprised in it. Where the property which remains in the hands of the settlor after the execution of a voluntary settlement is either insufficient for the payment of his existing debts, or is protected by some rule of law from being taken in execution (0), this will furnish abundant evi- dence that the settlement was executed with intent (m) Jenkyn v. Vaughan, 3 Drew. 419, 424; Townshend v. Windham, 2 Ves. sen, 10, 11. (n) Infra in this present chapter. (0) Clements v. Eccles, 11 Ir. Eq, Rep. 237; Graham v. O’ Keefe, 16 Ir. Ch. Rep. 1. 46 FRAUDULENT CONVEYANCES. to defraud creditors, and the transaction will conse- quently be void against them. In Strong v. Strong (p) the settlor, being liable to the plaintiff for a breach of trust, conveyed his property to his son for a grossly in- adequate consideration. ‘The settlor died shortly after- wards, leaving no assets; and it was held that the conveyance to the son was fraudulent against the father’s creditors. The same result will follow if the property of the settlor, which remains after the voluntary settle- ment is executed, is of such a nature, or in such a situation, that the creditors will be obliged to wait a considerable length of time, or incur great expense be- fore it can be realized; as if it be a contingent interest, or be situated abroad, or consist of debts (q). And here it becomes important to consider whether a voluntary settlement can be impeached by creditors where the settlor was after the execution of the instru- ment in perfectly solvent circumstances, but has since divested himself of so much of the property which was reserved out of the settlement, that there is not enough left to pay the debts which he owed at the time the settlement was made. Where the settlor disposes of the property not in- cluded in the settlement within a very short time after the instrument was executed, the presumption that he intended to defraud his creditors is irresistible, and the settlement will consequently be held void (r). (p) 18 Beav. 408; see also French v. French, 6 DeG., M. & G. 95; 25 L. J., Ch. 612, 8. C.; Jackson v. Bowley, Car. & M. 97,103; Spirett v. Willows, infra; Corlett v. Radcliffe, 14 Moo. P. C. 121. (q) Thompson v. Webster, 7 Jur., N. 8. 531; see p. 532, per Lord Cranworth; Chamley v. Lord Dunsany, 2 Sch. & Lef. 714. (7) See Freeman v. Pope, 5 L. R., Ch. 638, 544; 9 L, R., Eq. 206, 8. C.; Crossley v. Elworthy, 12 L, R., Eq. 158. VOLUNTARY SETTLEMENTS. 47 But where a considerable time intervenes between the date of the settlement and the embarrassment of the settlor, the question whether the settlement can be set aside by creditors must depend in a great measure upon their own behaviour. If they have been guilty of un- warrantable delay in enforcing their claims, there will be great difficulty in affording them relief against the parties claiming under the voluntary settlement (s). Where, however, the delay of the creditors can only be construed into an act of forbearance on their part towards the debtor, it would seem but right that they should not be prevented from recovering their just debts, and that the voluntary settlement should not be allowed to stand in their way. No doubt the application of this last principle may at times be productive of the greatest hardship to the voluntary grantees; but on the other hand it must be remembered that a creditor, whose demand existed at the time the settlement was executed and who cannot be charged with unnecessary delay in asserting his rights, has a stronger claim for consideration than volunteers, whose estate originated in bounty. The proper rule seems to be to consider a voluntary settlement which has the effect of hindering or delaying existing creditors in all cases to be void against them, unless it can be clearly shown that they have by their own negligence forfeited their right to be preferred to the voluntary grantees. This last reservation appears to be necessary to reconcile the opinion of Lord West- bury, in Spirett v. Willows (t), with strict justice. The law in that case was considered both by Lord Hatherley (s) See 1 Story on Equity, § 358. g4) 3 DeG., J. & §. 293; 34 L, J., Ch, 365, 8. C. 48 FRAUDULENT CONVEYANCES. and Lord Justice Giffard, in Freeman v. Pope(u), to be laid down in terms which were too general, and which required modification. In Spirett v. Willows (v) the settlor had incurred a considerable debt upon a bill of exchange. A few days before the bill arrived at maturity, he made a voluntary settlement of a large portion of his property; retaining, however, to himself (as he alleged in his defence) sufficient for the discharge of his then existing liabilities. Immediately afterwards he realized the unsettled property, and squandered the whole of the money produced by the sale. The bill of - exchange having been dishonoured, the holder filed a bill to set the settlement aside as fraudulent. Lord Westbury, in giving judgment for the plaintiff, made the following remarks: “ If the debt of the creditor by whom the voluntary settlement is impeached existed at the date of the settlement, and it is shown that the remedy of the creditor is defeated or delayed by the ex- istence of the settlement, it is immaterial whether the debtor was or was not solvent after making the settle- ment. . . . . . It is obvious that the fact of a voluntary settlor retaining money enough to pay the debts which he owes at the time of making the settle- ment, but not actually paying them, cannot give a dif ferent character to the settlement or take it out of the statute. It still remains a voluntary alienation or deed of gift, whereby in the event the remedies of creditors are delayed, hindered or defrauded.” With some modification (in order to meet the case of creditors who are estopped by their own behaviour (uw) 5L. R., Ch. 638; 9 L. R., Eq. 206, S.C. (v) 3DeG., J. & S. 298; 34 L. J., Ch, 365, S. C. VOLUNTARY SETTLEMENTS. 49 from disputing the voluntary instrument(2) ), this seems a satisfactory exposition of the law. It is in full accordance with the opinion of Mr. Chancellor Kent, in the case of Reade v. Livingston(y). That learned judge there said: “‘ The conclusion to be drawn from the cases is, that, if the party is indebted at the time of the voluntary settlement, it is presumed to be fraudu- lent in respect of such debts (that is, those antecedently due), and no circumstance will permit those debts to be affected by the settlement, or repel the legal presump- tion of fraud. The presumption of law in this case does not depend upon the amount of the debts, or the extent of the property in settlement, or the circumstances of the party. There is no such line of distinction set up or traced in any of the cases. The attempt would _ be embarrassing, if not dangerous, to the rights of cre- _ ditors, and prove an inlet to fraud. The law has, there- fore, wisely disabled the debtor from making any volun- tary settlement of his estate to stand in the way of existing debts. This is the clear and uniform doctrine of the cases.” It may be inferred from what has just been said, that where a person has incurred a liability to pay a debt upon a contingency or at a future day, he cannot be allowed to defeat the creditor by a voluntary assign- ment of so much of his property that he has not the means of satisfying the debt when it becomes due (z). Voluntary settlements have been avoided on this ground where they have hindered or delayed persons to whom the settlor had previously to the date of the (2) Vide supra, p. 47. (y) 3 Johns, Ch. 500, 501, cited in 1 Story on Equity, § 359. (z) Crossley v. Elworthy, 12 L. R., Eq. 158, H.F. D 50 FRAUDULENT CONVEYANCES. settlement become bound as surety for the payment of money (a), or td whom he had given securities which were not payable till after his decease (0). Doubts appear to have been entertained at one time as to whether the statute 13 Eliz. c. 5, applied to cre- ditors whose debts did not exist at the time the volun- tary settlement was executed. But in the case of Taylor v. Jones(c), Lord Hardwicke said, that the preamble of the act spoke of creditors and “ others” who might be defrauded of their just debts; and that the word “ others” seemed to be inserted to take in all manner of persons, as well creditors after, as before the settlement; and he referred to the enacting clause, in which the scope of the statute is plainly extended to all whose actions and suits may be in anywise hindered or delayed. If positive evidence can be adduced of an intention to defeat future creditors the settlement will be treated as fraudulent against them and will be set aside, al- though the settlor was not indebted at the time it was executed(d). In Murphy v. Abraham (e), a trader in (a) See Goodricke v. Taylor, 2 De G., J. & S. 135. (6) Adames v. Hallett, 6 L. R., Eq. 468; Rider v. Kidder, 10 Ves, 360; Dening v. Ware, 22 Beay. 184; Spirett v. Willows, 3 DeG., J. & S. 293; see Hamers Devisees’ Case, 2 DeG., M. & G. 366. And as to fraudulent assignments made by a tenant of a manor in order to defeat the lord of his heriot, see Zyrer v. Littleton, 2 Brownlow, 187, cited 10 Coke, Rep. 56 (a); Scriven on Copyholds, 5th ed. 265, 267; 2 Wat- kins on Copyholds, 169—172. (¢) 2 Atk. 601; see Pawncefoot’s Case, cited in Twyne’s Case, 3 Coke, Rep. 80; 1 Smith’s Leading Cases, 1, S. C. (4) Per Lord Hardwicke, in Stileman vy. Ashdown, 2 Atk. 401; Larback v. Marbury, 2 Vernon, 610; Spirett v. Willows, 3 De G., J. & S. 293. (¢) 15 Ir, Ch, Rep. 371; Ware v, Gardner, 7 L. R., Eq. 317; 38L.J., VOLUNTARY SETTLEMENTS. 51 solvent circumstances three days before entering into partnership by a voluntary deed conveyed all his pro- perty to trustees in trust for himself for life, or until bankruptcy or insolvency, and then in trust for his. wife and children. Not long afterwards he became bankrupt. It was held that the settlement was evi- dently executed in order to screen his property from the claims of the partnership creditors; and that the transaction was therefore fraudulent and void. So if a person in solvent circumstances makes a voluntary set- tlement of the bulk of his property, and immediately afterwards borrows a large sum of money, the settle- ment will be treated as fraudulent against the persons who lent the money, if it hinders or delays them (f). And if a person who is greatly embarrassed executes a voluntary settlement, and then immediately after- wards borrows money with which he discharges the debts he owed at the time the settlement was made, he cannot set up the instrument against his new set of cre- ditors, because it was evidently his intention at the time he executed it to incur fresh debts(g). In Holmes v. Penney (h), it was held by Vice-Chancellor Wood, that a voluntary settlement, by which a person vests pro- perty in trustees with an absolute discretion to apply it in the maintenance and support of himself, his wife Ch. 348, S. C.; Denison v. Tattersall, 18 L. T., N. 8.303; Graham v. Furber, 14 C. B. 410; Graham v. O’ Keefe, 16 Ir. Ch. Rep. 1; Reade vy. Livingston, 3 Johnson, Ch. Rep. 481, temp. Kent, C.; Bebee Tohkia Sherob v. Beglar, 6 Moore, Ind. App. 510; Crossley v. Elworthy, 12 L. R., Eq. 158. (f) Barling v. Bishop, 29 Beav. 417; see p. 420. (9g) Richardson v. Smallwood, Jacob, 552, cited in Holmes v. Penney, 3K. & J. 99, 100, 103. (h) 3K. & J. 90, 100; 26 L. J., Ch. 179, S.C. D2 52 FRAUDULENT CONVEYANCES. and children, or any of them in such manner as the trustees shall think fit, is not fraudulent against subse- quent creditors. The judge said, that such a settlement ywas no more void than it would be if it were simply for the benefit of the wife and children of the settlor; and that the court could not treat the instrument as fraudulent merely because the settlor might possibly derive some advantage under it himself. Where a voluntary settlement is set aside as fraudu- lent against creditors whose debts existed at the time it was executed, the settled property becomes available for the payment of all the settlor’s creditors, without regard to the time when their debts accrued (7). Cre- ditors whose debts were contracted subsequently to the date of the settlement may therefore enforce their claims against the property comprised in it, either by taking out execution during the life of the settlor, or by coming in with his general creditors after his death. It results from this, that a subsequent creditor has an equity to set aside a deed which is proved to be fraudulent against existing creditors. For the purpose of asserting this equity he is entitled to file a bill; but before he can obtain the assistance of the court it is necessary that he should show that all the debts which the settlor owed when he made the settlement have not been paid, otherwise no foundation is laid for avoiding the settlement as a fraud upon existing creditors, inasmuch as the fact of the settlor having discharged his obliga- tions to them completely negatives the idea that he had any intention to defeat or delay them(k). If there is (t) See cases in next note. (k) Jenkyn v. Vaughan, 3 Drew. 419; see p. 425; Richardson v. Smallwood, Jacob, 552; Freeman v. Pope, 5 L. B., Ch. 538 ;9LR, VOLUNTARY SETTLEMENTS. 53 any doubt as to the state of the settlor’s circumstances at the time he made the settlement, or as to whether he has paid off all his then existing creditors, the court will direct an inquiry (7). A voluntary settlement cannot be impeached by cre- ditors, if the instrument itself provides for the payment of debts(m); nor in cases where the debts are fully secured by mortgage or otherwise (7). As every instrument under seal imports a considera- tion on the face of it and may be sued on in a court of law, a voluntary settlement which delays or defeats a creditor cannot be sustained against him on the ground that his debt accrued under a voluntary bond or deed, any more than if he was a creditor for value (0). In administering the settlor’s assets, however, cre- ditors by voluntary bond or covenant are postponed to creditors for value, though the former are paid in pre- ference to legatees(p). Eq. 206, S. C.; see Ede v. Knonles,2 Y. & C.C. C. 178, contra. And see also Stephens v. Olive, 2 Bro. C.C. 90; Lush v. Wilkinson, 5 Ves. 887; Kidney v. Coussmaker, 12 Ves. 136, 156; Montague v. Lord Sandwich, 12 Ves. 155, n.; Leukner v. Freeman, Pr. Ch. 105; St. Armand v. Jersey, 1 Comyn, 255. (D Jenkyn v. Vaughan, 3 Drew. 419; Richardson v. Smallwood, Jacob, 552; Scarf v. Soulby, 1 Mac. & Gor. 364; Townsend v. Westa- cott, 2 Beav. 340, 345; Christy v. Courtenay, 13 Beay. 96,101. A deed assigning the whole of a debtor’s property to a particular creditor cannot be impeached in bankruptcy if all the debts which existed at the date of the deed have since been discharged. Ha parte Taylor, 5 De G., M. & G. 392; 1 Griffith & Holmes on Bankruptcy, 134. (m) George v. Milbanke, 9 Ves. 190; Nunn v. Wilsmore, 8 T. RB. 521. (n) Manders v. Manders, 4 Ir. Eq. Rep. 434; Meuaw v. Howell, 4 East, 1. (0) Adames v. Hallett, 6 L. R., Eq. 468; but see Dening v. Ware, 22 Beav. 184. (p) See infra, Chapter XVI, Sect. 3. 54 FRAUDULENT CONVEYANCES. In order that creditors may be able to set aside an instrument it is not necessary that they should be able to prove that it was wholly without consideration. It will be equally liable to be avoided if the consideration is grossly inadequate to the value of the property con- veyed(q); but the courts will not closely criticize a transaction which is honest and open, and the terms of which are fair and reasonable (r). It is desirable before concluding this chapter to refer to the provisions relating to voluntary and postnuptial settlements which are contained in the Bankruptcy Act, 1869, and the Married Women’s Property Act, 1870. By the 91st section of the former of these acts it is enacted, that any settlement(s) of property made by a trader not being a settlement made before and in con- sideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable con- sideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of such settlement, be void as against the trustee of the bankrupt appointed under the act, and shall, if the settlor becomes bankrupt at any subsequent time within ten years after the date of such settlement, unless the parties claiming under such settlement can prove that the settlor was at the time of making the settle- (q) Penhall v. Elwin, 1 Sm. & Giff. 258; Bradbury v. Hunter, 3 Ves. 187; Matthews v. Feaver, 1 Cox, Eq. Ca. 278; Howard v. Bart of Shrewsbury, 2 L. R., Ch. 760. (7) See Nunn v. Wilsmore, 8 T. R. 521; Maguire v. Nicholson, Beatty, 592; Blownt v. Doughty, 8 Atk. 481, (8) “Settlement,” for the purposes of this section, includes any con- yeyance or transfer of property. See the act. VOLUNTARY SETTLEMENTS. 55 ment able to pay all his debts without the aid of the property comprised in such settlement, be void against such trustee. The remainder of section 91 relates to covenants contained in the marriage settlements of traders for the settlement of their after-acquired property. This portion of the section has been before referred to. See Chapter II., p. 15. By sect. 10 of the Married Women’s Property Act, 1870 (33 & 34 Vict. c. 93), it is provided, that a policy of insurance effected by any married man on his own life, and expressed upon the face of it to be for the benefit of his wife, or of his wife and children, or any of them, shall enure and be deemed a trust for the benefit of his wife for her separate use, and of his chil- dren, or any of them, according to the interest so ex- pressed, and shall not, so long as any object of the trust remains, be subject to the control of the husband or to his creditors, or form part of his estate. But if it is proved that the policy was effected and premiums paid by the husband with intent to defraud his creditors, they are to receive out of the sum secured an amount equal to the premiums so paid. And sect. 6 of the same statute renders invalid any deposit or investment made by a married woman with her husband’s money in fraud of his creditors. All money so deposited or invested may be followed as if the act had not passed. 56 FRAUDULENT CONVEYANCES. CHAPTER V. Concerning Postnuptial Settlements which are sup- ported by Valuable Consideration—And concerning Bonds given in substitution for Voluntary Bonds. PosTtNUPTIAL settlements, which are executed in pursu- ance of an antenuptial agreement in writing, have been considered in a previous chapter. It has there been shown that such settlements cannot be treated as volun- tary, any more than if they had been executed before the marriage. In this chapter it is intended to speak of postnuptial settlements, which, though not in pursuance of any antenuptial agreement, may yet be enforced against creditors and subsequent purchasers, in conse- quence of valuable consideration having passed when the instruments were executed. Some remarks will be made in the first place upon settlements which have originated in some contract or arrangement between the settlor and his wife subsequently to their marriage; and afterwards postnuptial settlements resulting from trans- actions between the settlor and third parties will be considered. Although a husband and wife are looked upon as one person in the eye of the law, and therefore incapable of contracting together; nevertheless in equity a mar- ried woman may in many cases enter into a contract with her husband, not only with reference to her sepa- rate property over which she has a power of aliena- POSTNUPTIAL SETTLEMENTS SUPPORTED BY VALUE. 57 tion (a), but also with reference to other matters, as to which she can be regarded for the purposes of the con- tract as if she was a feme sole(b). Therefore if a hus- band after marriage makes a settlement on his wife and children, in consideration of the wife parting with some interest in property or in money for his benefit, this settlement cannot be avoided by his creditors; provided the value of the property settled be not grossly out of proportion to the value of the property relinquished by the wife(c). In Scott v. Bell (d), a feme covert joined in an alienation of the lands out of which her jointure issued for the purpose of effectuating a sale for the pay- ment of her husband’s debts. On the same day he settled other lands to the same uses as the former set- tlement. The debts were paid, and some time after- wards the husband mortgaged the lands comprised in the second settlement. It was held that the second settlement must be treated as if it had been made in pursuance of an agreement entered into when the pro- perty in the first settlement was aliened, and the jointure destroyed ; and that it was therefore not voluntary (e). (a) Walrond v. Walrond, Johnson, 18. (6) Vansittart v. Vansittart, 4 K. & J. 63, 70; 2DeG. & J. 249, S. C.; Hewison v. Negus, 16 Beav. 594, 598; Arundell v. Phipps, 10 Ves. 148; Bland v. Macculoch, 9 W. R. 65. (e) See Dolin v. Coltman, 1 Vernon, 294. (d) 2 Levinz, 70; 1 Cowper, 286, 8. C.; Cottle v. Fripp, 2 Vernon, 220; Lavender v. Blackstone, 2 Levinz, 146; Blake v. French, 5 Ir. Ch. Rep. 246. (e) The relinquishment by the wife of her dower (if she was married since the new act relating to dower came into operation) cannot be looked upon as a sufficient consideration to support a settlement upon her by the husband against his creditors. See 2 Dart, V. & P. 814, 4th edit. Dd 58 FRAUDULENT CONVEYANCES. In Ward v. Shallet( f), postnuptial settlement made by a husband in favour of his wife and children, upon the wife agreeing to part with a contingent interest under a bond given by the husband on their marriage, was held good against his creditors. In Carter v. Hind (g), the wife mortgaged her separate property to pay the husband’s debts, in consideration of his settling an estate upon her. ‘This settlement was held to be good against his creditors. And upon the same principle where the husband and wife have mutually agreed to surrender up their exist- ing interests under a settlement, for the purpose of re- settling the property upon themselves and their chil- dren ; or with a like object have mutually concurred in conveying, or in levying a fine of lands in which they had a joint interest, or in executing a joint power of appointment, the new settlement cannot be deemed to be without consideration, and therefore cannot be avoided by creditors or subsequent purchasers. In Joyce v. Hutton (h), a term was held in trust for the separate use of a married woman for life, with remainder in trust for her husband for life; with remainder in trust for their children. The husband and wife agreed to assign their respective interests to trustees upon certain trusts for the benefit of the children. The wife assigned her interest, and the husband covenanted that he would assign his interest also, if he survived the wife and the assignment was required by the trustees. The husband and wife afterwards sold the estate. It was held that (Ff) 2 Ves. sen. 16; and see Arundell v. Phipps, 10 Ves. 148. (9) 21L. T. 116; Clerk v. Nettleship, 2 Levinz, 148. (A) 12 Ir. Ch. Rep. 71; reversing 11 Ir. Ch. Rep. 123, S. C. POSTNUPTIAL SETTLEMENTS SUPPORTED BY VALUE. 59 the new settlement was not voluntary, but founded on valuable consideration; that consequently it was unaf- fected by the subsequent sale, and specific performance of the husband’s covenant might be enforced by the children. In Hewison v. Negus (i), the wife’s estate in fee simple was settled by a postnuptial settlement upon the wife for her separate use for life, with remain- der to the husband for life, with remainder to the chil- dren, with ultimate remainder in fee to the wife. It was held that this settlement was good against a subse- quent purchaser from the husband and wife, because the modification by the husband of his life estate in possession and by the wife of her inheritance formed a good and valuable consideration. In Atkinson v. Smith(k), a husband and wife by feoffment and fine in 1818 mortgaged in fee simple cer- tain lands of which they were tenants by entireties, and by the proviso for redemption the land was to be re- conveyed to the husband and wife and their heirs, or to such other persons or person and for such intents and purposes as the husband and wife or the survivor of them, or the heirs or assigns of such survivor, should nominate, direct or appoint. The mortgage money having been paid, a re-conveyance was executed in 1827, by which the mortgagee, by the direction and appointment of the mortgagor and his wife, released, and the husband and wife appointed and released the premises to the use of the wife for life, with remainder to the use of the husband for life, with remainder to uses in favour of their daughter and her children. After the death of the wife, the husband for valuable con- (4) 16 Beav. 594. (2) 3 De G. & J. 186; 28 L. J., Ch. 2, 8. C. 60 FRAUDULENT CONVEYANCES. sideration conveyed the property in fee to the plaintiff, from whom the daughter, when her father died, endea- voured to recover it by an action of ejectment. A suit was instituted in order to restrain the action, and to have the indenture of 1827 delivered up as voluntary, and therefore void against the plaintiff as a purchaser for value within 27 Eliz. c. 4. But it was held by Lord Chancellor Chelmsford (reversing the decision of Vice-Chancellor Kindersley), that the terms and pro- visions contained in the mortgage deed sufficiently indi- cated an intention to change or modify the wife’s estate, for the purpose of enabling her to deal with the equity of redemption without a fine; and that her concurrence in the settlement made by the re-conveyance was a suf- ficient consideration to sustain the instrument against subsequent purchasers. In Acraman v. Corbett (1), by an antenuptial settlement the wife’s property was settled according to the joint appointment of the hus- band and wife, and subject thereto to the husband in fee. The wife joined in appointments for the purpose of raising money for the purchase of other property which was settled on her and her husband. It was held that this second settlement was not voluntary. Sir W. P. Wood, Vice-Chancellor, said: “ The limi- tations were to the joint appointment of the husband and wife, and, subject thereto, to the husband in fee. That undoubtedly did give to the husband the power of disposing of the whole estate without his wife’s con- (2) 1J. & H. 410; and see Fitzmaurice v. Sadleir, 9 Ir. Eq. Rep. 595; Parker v. Carter, 4 Hare, 409; Whitbread v. Smith, 3 De G., M. & G. 727, 740; Harman v. Richards, 10 Hare, 81; Greene v. O’ Kearney, 2 Ir. C. L. Rep. 267; Muskerry v. Chinnery, Ll. & Go. Rep. temp. Sugden, 185, 221. POSTNUPTIAL SETTLEMENTS SUPPORTED BY VALUE. 61 sent, because a conveyance by him would prevent any future exercise of the joint power. On the other hand, there was something reserved to the wife, in the right of joining in an appointment, which it might or might not be worth her husband’s while to ask her todo. This privilege would have been more important if the old law of dower applied, but it had also some substantial value in its operation with respect to judgments. The wife may have considered that there might be judgments against her husband, and may have determined to re- serve to herself the power of executing a deed by which some portion of the property she had brought her hus- band might be made available for her against such judgment creditors. In the absence of any actual in- solvency at the time, there would certainly be nothing fraudulent in the wife taking this precaution; and even if the husband were insolvent, I doubt whether there would be anything to make an appointment for such a purpose, under a stipulation contained in a marriage settlement, fraudulent within the statute of Elizabeth.” But as a deed, though made for valuable considera- tion, may be affected by mala fides, a settlement which would otherwise have been supported against creditors in consequence of the concurrence of the husband and wife in the transaction may be invalidated, if a fraudu- lent intent to delay creditors can be proved (m). In cases where, if the husband were to seek the aid of equity in reaching his wife’s property, the Court of Chancery would compel him to make a suitable settle- ment upon her before rendering him its assistance, the husband may make such settlement as the court would (m) See Harman v. Richards, 10 Hare, p.89; Butterfield v. Heath, 15 Beav. 408. 62 FRAUDULENT CONVEYANCES. have enforced; and the transaction in such a case can- not be set aside as voluntary, either by creditors or sub- sequent purchasers(n). But if a woman is indebted before her marriage, she has no equity to a settlement out of her property until her debts incurred before her marriage have been provided for(o). Section 91 of the Bankruptcy Act, 1869, avoids voluntary settlements made by traders in the event of bankruptcy ensuing within a certain period after the date of such settle- ments; but there is an express exception in favour of any settlement which may be made by a trader upon his wife or children of property which has accrued to him after marriage in right of his wife. And a postnuptial settlement which is a part of an arrangement or bargain, not between the settlor and his wife, but between the settlor and other parties, may also be supported against creditors and subsequent pur- chasers, if the consideration for the settlement consists of an advance of money to the settlor, of the discharge of his debts, of litigation being suspended, or of any other benefit received by the settlor or of loss incurred in his behalf(p). And here it may be observed that a very slight consideration will be sufficient to support a settlement of real estate against subsequent purchasers, for the courts endeavour as much as possible to di- minish the evil produced by construing every voluntary (n) Spirett v. Willows, 1 L. R., Ch. 520; 34L. J., Ch. 365, 8. C, Turnley vy. Hooper, 3 Sm. & Giff. 349; Ash v. Lowe, H. & Jo. 287; Middlecombe vy. Marlow, 2 Atk. 519; Moor v. Rycault, 2 Atk. 448; 2 Bright’s Law of Husband and Wife, 99, 128. (0) Barnard v. Ford, 4 L. R., Ch. App. 247. (py) Brown v. Jones, 1 Atk. 90; Jones v. Marsh, Cases temp. Talbot, 64; Colvile v. Parker, Cro. Jac. 158; Ramsden v. Hylton, 2 Ves. sen. 308; Wheeler v. Caryl, Ambler, 121, POSTNUPTIAL SETTLEMENTS SUPPORTED BY VALUE. 63 settlement of realty to be fraudulent within the statute 27 Eliz. c. 4. In Bayspoole v. Collins(q), A. C. was the owner of a freehold estate, which was worth, beyond a mort- gage to which it was subject, about 1,300/. In order to induce him to make a postnuptial settlement of this estate on his wife and children, one of his wife’s rela- tions agreed to advance him 150/. on his promissory note to meet the interest on the mortgage, which was then in arrear. It was held that the loan was a suffi- cient consideration to support the settlement against subsequent purchasers and mortgagees. In Thompson v. Webster (r), 2 man who owed money applied to his mother for advances to pay his debts. She declined to assist him, unless he would settle his property upon his wife and children. After some delay he acceded to this and made the required settlement, by which he reserved a life interest, valued at 1,700/., to himself. The mother discharged his debts, except a sum of 3001., which had been concealed from her. The son then became insolvent, and died, leaving the debt of 300/. unpaid. In a suit by the assignee in insolvency to set aside the settlement as fraudulent, it was held that, as the settlor could procure his mother’s assistance only upon the terms of making the settlement, it could not be looked upon as his own spontaneous act and volun- tary, and that it was therefore not executed with intent to defraud creditors. In Ford v. Stuart(s), A. B: (q) 6L. R., Ch. 228. (r) 4 Drew. 628; 4 De G. & J. 600, S.C; Wriron v. Cotter, 1 Ridgw. P. C. 295, 305; Townend v. Toker, 1 L. R., Ch. 446; Hadley vy. Caswell, 15 L. T., N. 8. 516; see Slack v. Tolson, 1 Russ. 553. (8) 15 Beav, 493; and see Bayspoole v. Collins, 6 L. R., Ch. 228. 64 FRAUDULENT CONVEYANCES. mortgaged his own estate for the benefit of C. D., who (pursuant to an agreement to that effect with A. B.) conveyed real estate not only as an indemnity to A. B., but also to uses for the benefit of his (C. D.’s) own children and their issue. It was held that there was a sufficient valuable consideration as between A. B. and C. D. to support the limitations to C. D.’s children as against subsequent purchasers for valuable considera- tion from C. D. In Heap v. Tonge (t), an agreement was entered into between an heiress at law and a de- visee, in order to prevent litigation about a disputed will. It was agreed that the property comprised in the will should be vested in trustees for the benefit of the heiress at law, her husband and children, and the said devisee. The heiress at law and her husband after- wards mortgaged the property; but it was held, at the suit of the devisee and one of the children, that the assignment to the trustees could not be avoided by a subsequent sale, inasmuch as it was not voluntary but founded upon valuable consideration, the contracting parties being purchasers of each other’s interests. It may here be observed, that where a compromise of a doubtful claim is entered into deliberately and without fraud, the courts will not inquire into the suf- ficiency of the consideration which passed between the parties (w). And where a doubtful question has been once amicably settled by private arrangement, the (t) 9 Hare, 104; Williams v. Williams, 2 L. R., Ch. App. 294; Holmes v. Penney, 3 K. & J. 90; and see Penhall v. Elwin, 1 Sm. & Giff. 258, 270. (w) Naylor v. Winch, 28. & 8.555; Houghton v. Lees, 1 Jur., N.S. 862; Gordon v. Gordon, 3 Swans. 463; Cook v. Wright, 1 B. & 8. 559; Stapilton v. Stapilton, 1 Atk. 2; 2 W. & T., L. C. 745, & GC. POSTNUPTIAL SETTLEMENTS SUPPORTED BY VALUE. 65 matter will not be affected by a subsequent decision of the courts on the matters in dispute (x). It has been already shown (y), that re-settlements be- tween father tenant for life and son tenant in tail may generally be supported against creditors and subsequent purchasers, on the ground that, as the arrangement could not have been carried out without the concurrence of both parties, each must be supposed to have stipu- lated for the estates limited to himself and his relations, and to have threatened to withdraw from the matter altogether unless his proposals were acceded to (z). Of course these re-settlements between father and son may be avoided if an intent to defraud creditors plainly appears. In Tarleton v. Liddell (a), the father was tenant for life, and the son tenant in tail. The father fraudulently procured the son to join in a reco- very for the purpose of defeating the father’s creditors ; but the son was not privy to the fraud. It was held that, although the recovery was good, the uses declared upon it were void against the father’s creditors, who therefore took his life estate for the payment of their debts. Concerning Substituted Bonds. As the obligee of a voluntary bond may enforce pay- (x) Lawton v. Campion, 18 Beay. 87; Ex parte Lucy, 17 Jur. 1143; Callisher v. Bischoffsheim, 5 L. R., Q. B. 449; Brooke v. Lord Mostyn, 2 De G., J. & S. 278, and see p. 416. (y) Supra, p. 28. (2) Pulvertoft v. Pulvertoft, 18 Ves. 84, 92; Wakefield v. Gibbon, 1 Giff. 401; 26 L. J., Eq. 505, S. C. : (a) 17 Q. B. 890; 4 De G. & S. 538, 8. C.; Baverstock v. Rolfe, 8 A. & E. 650; 3.N. & P. 648, S. C.; Clement v. Eccles, 11 Ir. Eq. Rep. 229, 66 FRAUDULENT CONVEYANCES. ment of it by a process of law, the surrender up of the instrument to the obligor will constitute a valuable consideration for another bond substituted in leu of the first. The second bond therefore, not being voluntary, will be sustained against creditors, unless some special circumstances of fraud be shown(4). Upon the same principle a bond given to secure arrears which have accrued due on a voluntary bond cannot be treated as without consideration (c). (b) Ex parte Berry, 19 Ves. 218. (c) Gilham v. Locke, 9 Ves. 612; Stiles v. Att.-Gen., 2 Atk. 152; Meggison v. Foster, 2 Y¥. & C. C. C. 336; Mixon v. Hamilton, 1 Ir. Eq. Rep. 46, 49; La parte Hookins, 13 Jur. 114. ( 67 ) CHAPTER VI. Concerning Voluntary Settlements which are made good against Creditors and subsequent Purchasers by matters arising Ex post facto. A VOLUNTARY settlement cannot be avoided by the settlor’s creditors nor by subsequent purchasers from him if the voluntary grantee has parted with the estate to a bond fide purchaser for valuable consideration, or has settled the estate upon his marriage. Thus it is said in Prodgers v. Langham(a), if A. makes a frau- dulent feoffment to B., and B. enfeoffs C. for valuable consideration, and then A. enfeoffs some one else for valuable consideration, C. shall prevail over the second feoffee of A. In George v. Milbanke(b), a father and son limited an estate to trustees for a term of 3,000 years, upon trust after the father’s death to raise the sum of 5,000/. for such persons as the father should by deed or will appoint, and in default of appointment the same to go to the father’s executors and administrators. The (a) 1 Siderfin, 134; see Gibson v. Bruce, 5 M. & Gr. 399; Stevenson vy. Nennham, 13 C.B. 285, 303, per Parke, B.; Huguenin v. Baseley, 14 Ves. 273; Brown v. Carter, 5 Ves. 862, 878; Hoghton v. Hogh- ton, 15 Beav. 278, 316; Harris v. Tremenheere, 15 Ves. 34; Roddy v. Williams, 3 Jo. & Lat. 1; Doe v. Routledge, Cowper, 705. (4) 9 Ves. 190; Andrew Nemport’s Case, Skinner, 423; Wilson v. Wormald, Godbolt, 161, pl. 226; Doe v. Martyr, 1B. & P. N. R. 332; Parr v. Eliason, 1 East, 92; Lady Burg’s Case, Moore, 602; Ashley v. Ashley, 3 Simon, 149; Aldborough v. Trye, 7 C. & F. 486, 463; Talbot v. Staniforth, 1 J: & H. 484; Tottenham v. Green, 32 L. J., Ch. 201. 68 FRAUDULENT CONVEYANCES. father by deed directed and appointed that the sum of 5002., part of the sum of 5,000/., should after his de- cease be raised for the benefit of a natural son, who assigned the sum thus charged on the estate to a mort- gagee to secure an advance. Upon a bill filed by the administrator of the father to have the whole of the sum of 5,000. raised out of the estate for the payment of debts; it was held that, although the son being a volunteer would have been postponed to his father’s general creditors, nevertheless, the mortgagee had a right to be paid in preference to them, inasmuch as he stood in the position of a creditor for value against the father’s estate, and moreover had a specific charge on the property. In Morewood v. South Yorkshire and River Dun Railway Company (c), one Watson by bill of sale registered under 17 & 18 Vict. c. 36, assigned goods to Morewood, who, in the presence of Watson, assigned them to Bayne by way of mortgage to secure a bond fide advance of money made by Bayne to him- self. An action was pending against Watson when he assigned the goods to Morewood, and there was evi- dence to show that the assignment by him was fraudu- lent; but it was held that the sheriff could not seize the goods in the hands of Bayne under afi. fa. in the action against Watson. (c) 3H. & N. 798; see Richards v. Johnston, 4 H. & N. 660, which shows that an execution creditor is not bound by an estoppel which might have prevented the debtor himself from claiming the goods taken under the execution ; so that if Watson, in the above-cited case, had not actually assigned the goods to Morewood, but had merely stood by and allowed Morewood to represent himself as the owner of the goods, and to mortgage them to Bayne, the sheriff might nevertheless have seized the goods in the hands of Bayne under the ft: fa., which had been issued in the action against Watson. And see Low v. AM‘ Gill, 12 W. R. 826. EX POST FACTO CONSIDERATIONS. 69 But if the purchase from or other transaction with the voluntary grantee be not bond fide and founded on valuable consideration, the voluntary settlement cannot be supported against the settlor’s creditors or against subsequent purchasers from him. In O’Connor v. Bernard (d), a person who was greatly indebted by a voluntary deed conveyed real estate to his daughter with the view of putting the property out of the reach of his creditors. The daughter sold the estate to the defendant, who had full notice of the circumstances under which the voluntary deed was executed. It was held that the conveyance to the daughter was fraudu- lent and void against the father’s creditors, and that the defendant could stand in no better position than his vendor. The voluntary settlor will not be able to defeat the settlement if he has allowed the voluntary grantee to expend money on the estate; or if he has induced other persons to contract or deal with the voluntary grantee on the faith of the latter being the absolute owner of the property. In Dillwyn v. Llewellwyn(e), a father devised his real estate to trustees to the use of his wife for life, with remainder to his son for life, with remain- ders over. The father afterwards gave the H. estate to the son, and signed a memorandum as follows: ** H., together with my other freehold estates, are left in my will to my dearly beloved wife; but it is her wish, and I hereby join in presenting the same to our son, for the purpose of furnishing him with a dwelling- house.” The son took possession of the estate, and with the approbation of his father expended 14,0002. in (d) 2 Jones, 654, (e) 4DeG., F. & J. 517; 31 L. J., Ch. 658, S.C, 70 FRAUDULENT CONVEYANCES. the erection of a dwelling-house. Upon the death of the father, it was held that the expenditure by the son with his father’s consent supplied a valuable considera- tion to the memorandum which was originally wanting, and that therefore the son was entitled to have a con- veyance to himself of the fee simple of the H. estate. In Kirk v. Clark (f), Sir Nicholas Clark, being tenant for life of copyhold lands, with remainder to his wife for life, with reversion to himself in fee, made a sur- render of the reversion to his eldest son in tail, with remainder to his own right heirs; which surrender was made to his son with intent only to lessen the fine he would have had to pay in case the reversion had come to him by descent from his father; he having it by this surrender as a purchase. Afterwards, upon the son’s marriage, the lady’s friends proposed to have these copyhold lands settled, together with some lease- holds; but the father said he had already settled the copyholds by the surrender. Thereupon the leaseholds only were settled. Afterwards, the wife of Sir Nicholas dying, he attempted to settle the copyholds on his second marriage, and to defeat the arrangement made upon the son’s marriage. But it was held that’as the son’s marriage took place on the faith of his having an estate tail in the copyhold lands, the surrender to him by the father, which was at first voluntary, became supported by valuable consideration, and could not be defeated by a subsequent disposition or sale. In a contention arising under the statute 27 Eliz. (f) Pr. Ch. 275; Prodgers v. Langham, 1 Siderfin, 133 ; Hast India Company v. Clavell, Pr. Ch. 377, cited in Payne v. Mortimer, 4 DeG. & J. 447, 455; 1 Giff. 118, S. C.; see Roberts on Voluntary Convey- ances, p. 504. , EX POST FACTO CONSIDERATIONS. 71 c. 4, between a purchaser, for valuable consideration from a voluntary grantee, and a purchaser for value from the voluntary grantor, he whose purchase was prior in point of time will prevail. In O'Donovan v. Rogers (g), a father made a voluntary settlement on his daughters. Subsequently he parted with the property comprised in the voluntary settlement to a purchaser for valuable consideration. Afterwards the voluntary grantees married, and their property (including the settled property) was conveyed to trustees upon the trusts of their respective marriage settlements. It was contended that the voluntary settlement, having been made good by matter ex post facto, had priority by relation over the purchase from the settlor; but this argument was overruled. (g) 7 Ir. Ch. Rep. 1; Goodright v. Moses, 2 W. Bl. 1019; Scott v. Scott, 4 H. of L. 1065; 11 Ir. Eq. Rep. 487, S. C. 72 FRAUDULENT CONVEYANCES. CHAPTER VII. As to how far Separation Deeds may be supported against Creditors and subsequent Purchasers. Ir has been shown in a preceding part of this work that a postnuptial settlement which is not supported by valuable consideration will be void against the set- tlor’s creditors if it hinders or delays them. In like manner a settlement made upon a separation between a husband and wife will be void against the settlor’s creditors if the transaction is not supported by some valuable consideration. A covenant in a separation deed on the part of the wife’s trustees to indemnify the husband against all debts which the wife may contract during the separation is a good consideration to support the covenants entered into and other provision made by the husband for the benefit of the wife; and so is a covenant by the wife’s trustees to pay an annuity to the husband, or to discharge the debts owing by him at the time of the separation (a). And where a husband, upon a separation from his wife, releases his marital right in her future-acquired pro- perty, this is a good consideration for an annuity granted to him by the wife out of her separate estate (0). (a) Wilson v. Wilson, 14 Simon, 174; 1 H. of L. 538; 5 H. of L. 40, S. C.; and see Jones v. Waite, 7 C. & F. 101; 5 Bing. N. C, 341; 1 Bing. N. C. 656, S.C. (b) Logan v. Birkett, 1 M, & K, 220. SEPARATION DEEDS. 73 In Worral v. Jacob (c), G. Wilkinson, being entitled to a contingent reversionary interest in fee in certain real estate, upon a separation from his wife covenanted with her trustee to pay her 70/. per annum during the sepa- ration, and to convey the real estate as she should by deed or will appoint. The trustee covenanted to in- demnify the husband from all debts and engagements the wife might contract during the separation, and from all claim for alimony. The wife appointed the estate in favour of the plaintiffs. G. Wilkinson became bank- rupt and died; thereupon a question arose between the plaintiffs and the assignees in bankruptcy of G. Wil- kinson, as to whether the before-mentioned deed exe- cuted by him could be supported against his creditors. Sir W. Grant, M. R., held that the covenant by the trustee to indemnify the husband was a sufficient con- sideration to support the deed, and in giving judgment he said: “It is contended that an indemnity against the wife’s debts is an indemnity against nothing, as the husband living apart from his wife and allowing her a separate maintenance is not liable to pay her debts. That, however, is too largely stated, for ques- tions frequently arise as to the husband’s liability, not- withstanding a separate maintenance is provided for the wife. The sufficiency of the maintenance, accord- ing to the condition and fortune of the parties, is held to be a question for the consideration of the jury. This covenant may, therefore, afford a most important pro- (c) 3 Mer. 256; and see also Stephens v. Olive, 2 Bro. C.C.90; The King v. Brewer, 2 Bro. C. C. 93, n.; Compton v. Collinson, 2 Bro. C.C. 377, 386; St. John v. St. John, 11 Vesey, 525; Logan v. Birkett, 1 M. & K. 220; Wellesley v. Wellesley,10 Sim. 256; Gibbs v. Harding, 5 L. R., Ch. 336. H.F. E 74 FRAUDULENT CONVEYANCES. tection to the husband, and throw a burdensome obli- gation on the trustee.” So where a separation deed contained a covenant on the part of the wife’s trustees that the wife should provide for, support and educate the children of the marriage, and that she should not sue the husband for alimony or other provision, it was held to be made for valuable consideration and not to be voluntary (d). In Cowsx v. Foster (e), the deed con- tained no covenant by the trustees to indemnify the husband against the wife’s debts, but only a covenant by them that the husband should be at liberty to reim- burse himself in respect of his wife’s debts out of an annuity charged by the same deed. upon the husband’s real estate for the benefit of the wife. It was held that the gift of the annuity was without consideration, and therefore void against a subsequent mortgage made by the husband ; inasmuch as the covenant by the trustees gave him nothing which he had not before, but merely conferred on him, a right to keep back a certain sum out of the voluntary gift which he had made: In cases where the husband has behaved in such a way towards his wife as to entitle her to claim a sepa- ration and alimony in the Divorce Court, he may, in order to avoid the consequences of a suit, execute a deed arranging the terms of a separation between the wife and himself, and making provision for the mainte- nance of her and the children. Such a deed cannot be set aside by the husband’s creditors on the ground that it is voluntary, and not founded on valuable considera- (d) Miwon v. Hamilton, 2 Dr. & Wal. 364; 1 Ir, Eq. R. 46, 9. (¢) 1J.& H. 30, see p. 36; and see also Clough v. Lambert, 10 Sim. 174; Fitzer v. Fitzer, 2 Atk. 511; Walrond v. Walrond, 1 Johns, 18; 4 Jur.,.N. §. 1099, 8. 4 SEPARATION DEEDS. 75 tion(f). In Hobbs v. Hull(g), the husband was in- debted to the plaintiffs on judgments and otherwise. Upon a separation between him and his wife, he settled a portion of his real estate upon her and their chil- dren. The plaintiffs endeavoured to avoid the settle- ment, as fraudulent against them within 13 Eliz. c. 5. The defence was that the husband had before the time of the separation lived in a state of adultery, and be- haved in such a way as to entitle the wife to a divorce a mensé et thoro, and to an allowance; and that this provision was in lieu of such allowance and to prevent litigation. It was held that the settlement was founded on good consideration, and not void against the hus- band’s creditors. The Master of the Rolls said: ““T have to decide the question, whether the husband having behaved so ill as to entitle the wife to obtain a divorce in the spiritual court &@ mensé et thoro, and to have a proper allowance from him, if the wife, instead of strictly prosecuting that right, meets the husband in the threshold, and says she will accept the maintenance proposed by him without litigation, whether this can be said to be such a voluntary act as to be fraudulent against creditors. Surely this settlement can never be said to be without consideration; a husband and wife may certainly in particular situations treat together effectually, if they treat upon fair and reasonable terms. When the wife in this case agrees to accept this settle- ment instead of resorting to the enforcing her rights in the Ecclesiastical Court, surely she is giving up something for it. I am therefore very clearly of opinion that this (f) 2 Roper, H. & W. 289; 2 Bright, H. & W. 323. (g) 1 Cox, Eq. Ca. 445; Munn v. Wilsmore, 8 T. R. 521; Fitzer v. Pitzer, 2 Atk, 511. E2 76 FRAUDULENT CONVEYANCES. is not one of those agreements which the statute of Elizabeth meant to prevent. I do not go upon any motives of compassion when I decree as I am now about to do, nor upon the conduct of the parties, but upon the rights in law which I take to exist between them.” A compromise of a suit in the Divorce Court is sufficient to support a separation deed against cre- ditors (h); and so is an agreement by a wife to with- draw an indictment against her husband for an assault or other injury, not being a felony (2). (h) Wilson v. Wilson, 14 Simon, 405; 1 H. of L. 588; 5 H. of L. 40, S. C.; Vansittart v. Vansittart, 4 K. & J. 68; 2 De G. & J. 249, S. C.; Jodrell v. Jodrell, 9 Beay. 45; 2 Bright on H. & W. 326. (i) Hlworthy v. Bird, 28. & St. 372; Garth v. Earnsham, 3 Y. & C. 584; 1 Russell on Crimes, 4th edit. 194. ( 77 ) CHAPTER VIII. As to how far Voluntary Appointments are good against Creditors. THE principles which have been before considered with respect to voluntary assignments in fraud of creditors by persons in embarrassed circumstances may be applied to voluntary appointments, which have the effect of dis- appointing and delaying creditors. Therefore, where a man who is indebted has vested in him a power of appointment and also an interest in default of appointment, he cannot by a voluntary in- strument execute the power in such a way as to prevent his creditors from reaching the property over which the appointment is exercised. In Whittington v. Jennings (a), certain mine shares were assigned to trustees in trust for one Tice for life, and after his decease for his wife for life, and after the decease of the survivor, in trust to raise 760/., and pay the same to such persons as Tice should by deed or will appoint, and in default of appointment to his executors. Tice’s wife died, and he, being at the time indebted to the plaintiff on the balance of a running account, made a voluntary appointment of the above-mentioned sum in favour of the defendants. Subsequently the trustees, at Tice’s request, assigned the trust property to the plaintiff in trust for Tice, who by his will appointed (a) 6 Simon, 493; White v. Sansom, 3 Atk. 410. 78 FRAUDULENT CONVEYANCES. the plaintiff his executor. After Tice’s death the de- fendants claimed to have the 760/. raised and paid to them; but, upon a bill filed by the plaintiff to have the appointment declared fraudulent and void, the court ordered it to be set aside, and held that the plaintiff was entitled to the aforesaid sum as part of his testator’s assets. If the power was originally exercised for valuable consideration, or if the property comprised in a volun- tary appointment has been sold by the appointee to a bond fide purchaser, the appointment cannot be dis- turbed by the appointor’s creditors (6). And if a man has a general power of appointment over a fund by will, and actually exercises the power(c), the appointed property will in equity form part of his assets for the payment of his debts(d). The same principle applies where the power is exercised over real estate; for the statute of Fraudulent Devises (e) expressly refers to lands, &c. which a person has power to dispose of by will, and it has been held that a power of appointment is an “ estate or interest in land” within the meaning of the statute 3 & 4 Will. 4, c. 104, which makes real estate assets for the payment of simple contract debts(f). An appointment by deed which is to take (b) George v. Milbanke, 9 Ves. 191; Hart y. Middlehurst, 3 Atk. 377; Martyn v. M'Namara, 4 Dr. & War. 411; Cutten v. Sanger, 2 Y. & J. 459; Sugden on Powers, 8th edit, 672. (ec) Sugden on Powers, 8th edit. 474, 540. (@) Holmes v. Coghill, 7 Ves. 499; 12 Ves. 206, S&S C.; Edie v. Babington, 3 Ir. Ch, Rep. 568; Petre v. Petre, 14 Beay. 197; Williams v, Somers, 16 Beav. 1; see early cases in 2 Chance on Powers, 144 et seq.; Sugden on Powers, 8th edit. 474. ° (¢) 3 & 4 Will. & M. c. 14, repealed and re-enacted by 11 Geo. 4 & 1 Will. 4, c. 47. (f) Fleming v. Buchanan, 3De G., M. & G. 976; Williamson Real Assets, 12, 38, VOLUNTARY APPOINTMENTS. 79 effect on the death of the appointor stands on the same footing as a will for the purpose of the rule under dis- cussion, and therefore the property over which the power is exercised will form part of thé appointor’s assets(g). Itis to be observed, however, that appointed property, whether real or personal, will not be appli- cable towards the discharge of the appointor’s debts until the whole of his own property of every kind has been exhausted (zh). ‘Where the person executing a general power of ap- pointment by will is a married woman, the appointed property is not part of her separate estate so as to be liable for the payment of her debts, unless they have been contracted by fraud (2). Property appointed by will is assets for the payment of those creditors only whose debts are recoverable at the time of the testator’s death. In Jenney v. Andrews (k), a man by his marriage settlement had power to appoint a sum of money in the stocks by will only. He exercised the power in favour of his wife. Shortly afterwards he was adjudicated a bankrupt, and obtained his certificate. After his death the assignees in bankruptcy claimed the appointed property, but it was held that the appointee was not lable for the pay- (g) Lord Townshend vy. Windham, 2 Ves.sen. 1; Pack v. Bathurst, 3 Atk. 269. (h) Fleming v. Buchanan, 3 De G., M. & G. 976; see Vaughan v. Vanderstegen, 2 Drew. p. 382. (i) Vaughan v. Vanderstegen, 2 Drew. 165, 289, 363, 408; Blach- Sord v. Woolley, 2 Dr. & Sm. 204; Shattock v. Shattock, 35 Beav. 489; 2L. R., Eq. 182, 8. C.; Johnson v. Gallagher, 3 De G., F. & J. 494; Hoare vy. Osborne, 10 Jur., N.S. 694. (2) 6 Madd. 264; Re Vizard’s Trusts, 1 L. R., Ch. 558; Duke of Marlborough v. Godolphin, 2 Ves. sen. 61. 80 FRAUDULENT CONVEYANCES. ment of any of the testator’s debts which did not exist at the time of his death, and that therefore the claim of the assignees was barred by the certificate. Grants and dispositions of land in which there is reserved any power of revocation at the will of the grantor are expressly made void against subsequent purchasers by the statute 27 Eliz. c. 4(/). There is no similar provision in the statute 13 Eliz. c. 5; but a settlement with a clause empowering the settlor to revoke or alter it at his pleasure appears to be clearly within the evil proposed to be remedied by the act (m). For such a reservation of dominion over the property comprised in the settlement is primd facie evidence of an intention on the part of the settlor to defraud his creditors by placing his property out of their reach, while he all the time retains to himself full disposition over it(n). There appears to be no doubt, therefore, that settlements and other assurances of property which the settlor or grantor can revoke at pleasure may be avoided by ecreditors(o). In Tarback v. Marbury(p), a settlement which reserved a power to the settlor to mortgage or charge to any extent was held to be void against creditors by statute and judgment. By the Bankruptcy Act, 1869 (32 & 33 Vict. ¢. 71), (2) See Chapter XX VL. (m) See 2 Chance on Powers, 150. (m) See Peacock v. Monk, 1 Ves. sen. 132, per Lord Hardwicke; Myers v. Duke of Leinster, 7 Ir. Eq. Rep. 146; Smith v. Fellows, 2 Atk. 62; and see Maddison v, Andrew, 1 Ves.61. As to the con- struction of powers reserved in voluntary settlements, see Sugden on Powers, 8th edit. 337; 2 Chance on Powers, 97, 98. (0) See Columbine v. Penhall, 1 Sm. & Giff. 228. (p) 2 Vernon, 510; see Smith v. Fellows, 2 Atk. 62, 377; Hunger- Jord v. Erle, 2 Freeman, 120. VOLUNTARY APPOINTMENTS. 81 s. 15, the trustee of the bankrupt’s estate may exercise all powers over property which the bankrupt might have exercised for his own benefit at the commencement of his bankruptcy or during its continuance, except the right of nomination to a vacant ecclesiastical bene- fice(qg). And the Crown has power by virtue of its prerogative to extend lands over which the king’s debtor has a power of revocation for his own benefit, whatever may be the formalities required for the exe- cution of the power, and although the donee may have died without executing it (r). (gq) And see sect. 25, sub-sect. 5. Whether the power of defeating a voluntary settlement which arises by virtue of the statute 27 Eliz. c. 4, is a power which the bankrupt may exercise for his own benefit within the meaning of the Bankrupt Act may be doubted since the decision of Beavan v. Lord Oxford, 6 De G., M. & G. 507, which was decided upon sect. 13 of 1 & 2 Vict.c. 110. See, however, Re Cross, 19 W.R. 153. (7) Sugden on Powers, 8th edit. 185, 186. ES 82 FRAUDULENT CONVEYANCES. CHAPTER IX. As to how far Transfers of Property without Trans- mutation of Possession are good against Creditors. VARIOUS circumstances indicating an intention on the part of the settlor of goods and chattels to hinder and delay his creditors are enumerated by Lord Coke in his report of Twyne’s case(a):—(lst.) The gift there was general, without any exception, of the debtor’s wear- ing apparel or anything of necessity ; and it is commonly said quod dolosus versatur in generalibus. (2ndly.) The debtor continued in possession and used the goods as his own, and by reason thereof he traded and traf- ficked with others, and defrauded and deceived them. (8rdly.) The gift was made in secret, et dona clan- destina sunt semper suspiciosa. (4thly.) The gift was made pending a writ. (5thly.) There was a trust be- tween the parties ; for the donor possessed all and used them as his proper goods, and fraud is always apparelled and clad with a trust, and trust is the cover of fraud. (6thly.) The deed contained a statement that the gift was made honestly, truly, and bond fide; et clausule inconsuet@ semper inducunt suspictonem. Various other indicia of fraud might be men- tioned (2), but those just alluded to will suffice to show (a) 3 Coke, Rep. 80. (b) See Shelford on Bankruptcy, 3rd edit. 188, 139; Dewey v. Bayn- tun, 6 East, 257; Arundell v. Phipps, 10 Ves. 139. To antedate 2 POSSESSION RETAINED AFTER ASSIGNMENT. 83 the nature of the deceit sought to be remedied by the statute 13 Eliz. c. 5. In this chapter it is proposed to consider those cases where an assignment of property has been treated as fraudulent against creditors by reason of the seller con- tinuing in possession after the sale. The subject of reputed ownership under the bankrupt laws will be reserved for a separate discussion (Chapter XI.). The Bills of Sale Act, which was passed in order to prevent frauds upon creditors by secret bills of sale of personal chattels, will be considered in Chapter X. It may be as well here to observe, that the remarks made in this chapter relate exclusively to transfers of personal property, such as goods and chattels, the own- ership of which is usually evidenced by possessibn. As the ownership of real property and chattels real depends on the title shown by the deeds relating to the estate, and not upon possession, no presumption of fraud can arise from the circumstance that the property has not changed hands after the sale. Where a man who is indebted makes an absolute assignment of his goods and chattels to another person, whether that person be a creditor or not(c), and no change of possession takes place, but the debtor is allowed to retain his property as before, a presumption arises that there is some secret understanding or trust between the debtor and his assignee, by which the deed for the purpose of defrauding creditors is a forgery, although the instrument is in fact made and executed by the parties by whom it purports to be made and executed. The Queen v. Ritson, 1 L.R., C. C. RB. 200; 11 Cox, C. C. 352, 8. C. (c) Meggot v. Mills, 1 Ld. Raym. 286; Kidd v. Rawlinson, 2 Bos. & Pul. 59; Martindale v. Booth, 3 B. & Ad. 504. 84 FRAUDULENT CONVEYANCES. former, although he remains in the enjoyment of his property, is nevertheless to be protected from the exe- cutions of his creditors; thus delaying them, and de- frauding them of their just demands. Upon the same principle it is evidence of fraud if an execution creditor, after having seized the goods of his debtor, allows him to remain in the possession and enjoyment of them (d). Unless the presumption of fraud which arises in such cases is rebutted, any other person suing out execution against the debtor may seize the goods in his hands, and will be allowed to retain them against the fraudu- lent assignee or creditor (e). In the case of Edwards v. Harben(f), it was laid down that, where an assignment is intended to have immediate operation, possession must accompany and follow the deed, or the transaction is fraudulent in point of law. This doctrine, however, has been repudiated in subsequent cases, and the circumstance that the pos- session of the assignor is inconsistent with the deed is now treated as merely primd facie evidence of fraud, to be left, with all the other circumstances of the case, to the consideration of the jury(g). In Twyne’s case (d) Graham vy. Furber, 14 C. B. 410; Edwards v. Harben, 2 T.R. 587; see Guthrie v. Wood, 1 Stark. N. P. 367; Burling v. Paterson, 9 C. & P. 570. (¢) West v. Skip, 1 Ves. 245,456; Bucknall v. Roiston, Pr. Ch. 286; Rice v. Serjeant, 7 Mod. 37; Meggot v. Mills, 1 Ld. Raym. 286. As to the sheriff’s liability under such circumstances, see Imray v. Magnay, 11M. & W. 267; Christopherson v. Burton, 3 Exch. 160; Remmett v. Lawrence, 15 Q. B. 1004; Lovick v. Cronder, 8 B. & C. 182; Hunt v. Hooper, 12 M. & W. 664. (f) 2 T.R.587; Stone v. Grubham, 2 Bulstrode, 218. (9) Martindale v. Booth, 3 B. & Ad. 498; Carr v. Burdiss, 5 Tyr. 309; Martin v. Podger, 2W.B. 701; Cadogan v. Kennett, Cowper, 434; Eastwood v. Brown, Ry. & Moo. 312; Woodham v. Baldock, 3 POSSESSION RETAINED AFTER ASSIGNMENT. 85 the possession of the assignor was treated as fraudulent because “ it was not a mere naked possession, but was @ possession implying ownership and jus disponendi with the knowledge and concurrence of the vendee. The vendor not only continued in possession of the goods, but he sold some of them; he shore the sheep, and marked them with his own mark” (h). It was, moreover, said by Lord Ellenborough, in Wardall v. Smith(7), that to render an assignment valid within the statute 13 Eliz. c. 5, there must be an exclusive possession under it, and that the concurrent possession of the assignor and assignee was colourable, and justified a presumption of fraud. However, if the assignor is merely acting as the assignee’s agent or ser- vant (#), or if there are other circumstances showing the joint possession to be consistent with bona fides in the parties concerned, the transaction may be sustained. In Benton v. Thornhill(1), a farmer gave a bill of sale of all his farming stock to secure a debt, and the creditor put in an agent who resided on the premises while he valued the stock for the purposes of the sale ; the debtor being allowed to continue in possession and exercise acts of ownership as before. It was held that a verdict of a jury finding it an honest transaction, Moore, 11; Gow, 35, S. C.; Paget v. Perchard, 1 Esp. 205; Hoffman v. Pitt, 5 Esp. 25; Lindon v. Sharp, 6 M. & G. 898; Pennell v. Dawson, 18 C. B. 355; Macdona v. Swiney, 8 Ir. C. L. R. 73. (h) Per Lefroy, C. J., Macdona v. Swiney, 8 Ir. C. L. R. 73, 83. (4) 1 Camp. 332; and see Paget v. Perchard, 1 Espin. 205. (hk) Jezeph v. Ingram, 8 Taunton, 838; Reeves v. Capper, 5 B. N.C. 136; Dawson v. Wood, 3 Taunt. 256; Latimer v. Batson, 4 B. & C. 652. (2) 7 Taunton, 149; 2 Marshall, 427, 8. C. 86 FRAUDULENT CONVEYANCES. and not fraudulent against creditors, could not be disturbed. And if trustees for the benefit of creditors are em- powered by the terms of the trust deed to allow the debtor to use any part of the trust property they may think fit until the debts are collected, here the debtor's possession being permitted by the creditors themselves cannot be considered fraudulent(m), any more than where his possession arises under a lease granted to him by the creditor after the property has been taken in execution (7). No presumption of fraud, within the statute 13 Eliz. c. 5, will arise from the fact that the mortgagor has been left in possession of the property comprised in a bill of sale (0). And the rule will be the same although the bill of sale contains no express stipulation that the mortgagor shall enjoy until default, for it is consistent with the nature of the transaction that the mortgagor should retain possession of the mortgaged property. “It would be not only a great personal inconvenience to a mortgagee to be compelled to occupy the mort- gaged property, but he might also thereby deprive the mortgagor of the fruits of his trade, which would enable (m) Woodham vy. Baldock, 8 Taunt. 676; 3 Moore, 11, S. G.; Goss vy. Neale, 5 Moore, 19; Neate v. Latimer, 2 Y. & C., Exch. Ca. 257; Burling v. Paterson, 9 C. & P.570; Fenn v. Bittlestone, 7 Exch. 152. (n) Watkins v. Birch, 4 Taunt. 823; Kidd vy. Rawlinson, 2 B. & P. 59; Reed v. Blades, 5 Taunton, 212; Baldwin v. Cawthorne, 19 Ves. 166; Law v. Skinner, 2 W. B. 996. (0) 2 Davidson’s Cony. 609, 2nd edit.; Minshall v. Lloyd, 2M. & W. 450; Stone v. Grubham, 2 Bulstr. 225; Reed v. Wilmott, 5 M. & P. 553; 7 Bing. 577, S. C.; Alton v. Harrison, 4 L.R., Ch. 622, affirming 20 L. T., N. 8. 1001. POSSESSION RETAINED AFTER ASSIGNMENT. 87 him to pay the interest and perhaps eventually the prin- cipal sum advanced to him” (p). Goods and chattels which are left in the hands of the mortgagor after default made in the payment of the mortgage money, so as to enable him to gain a false credit by appearing to the world as real owner, will pass to the trustee in bankruptcy, under the reputed ownership clauses in the Bankrupt Act, if the mort- gagor be a trader and become bankrupt while the goods remain in his possession(g). And it appears from some cases that the same result may follow where the mortgagor is in possession, and no default has yet been made in payment of the mortgage money (r). Where a man assigns furniture and household effects to trustees upon trust for his wife and children, no pre- sumption, either within the statute 13 Eliz. c. 5, or the Bankrupt Acts, will arise from his continuing in pos- session of the trust property with the beneficiaries ; because they can only enjoy it by its remaining in the house where they reside with their husband or pa- rent (s). If the fact of the fraudulent intent be found by the (p) Per Richardson, J., in Steward v. Lambe, 1 B. & B. 506; 4 Moore, 281, S. C.; and see Cook v. Walker, 3 W. R. 357; Weaver v. Joule, 3 C. B., N. S. 309. (q) Ashton v. Blackshaw, 9 L. R., Eq. 510; Le parte Homan, 12 L. R., Eq. 598. (r) See 2 Davidson’s Conv. 614, 619, in notis; 1 Griffiths & Holmes on Bankruptcy, 444, 453; the Bankruptcy Act, 1869, 8.15; Freshney v. Carrich, 1H. & N. 653; Hornsby v. Miller, 1 E.& B.192; Shuttle- worth v. Hernaman, 1 De G. & J. 322; Robinson v. M‘Donnell, 2 B. & Ald. 134. But see the cases cited in the last note. (s) Cadogan v. Kennett, Cowper, 434; Arundell v. Phipps, 10 Ves. 139; Dewey v. Bayntun, 6 East, 257; Lewin on Trusts, 5th edit. 196, 485. 88 FRAUDULENT CONVEYANCES. jury, the debtor will not be enabled to shield his pro- perty from his creditors by the mere fact that his pos- session is consistent with the terms of the deed of assignment (f). No presumption of fraud will arise from the fact that the seller has been left in possession of the property sold in cases where, from the nature of the thing trans- ferred or its situation, actual delivery is impossible, and the seller has done all that was in his power to transfer his right in the goods to the assignee (x). Thus, the delivery of the bill of sale of a ship is equi- valent to the delivery of the vessel itself, if it is at sea; though it is otherwise if the ship be in port in the country of its owner, for then, as actual delivery can be made, the fact of the seller being left in possession is evidence of fraud(x). It will also be deemed evidence of fraud, if the buyer allows the ship to return and start on another voyage without taking possession (v). The same principle applies to the delivery of goods while at sea, which pass by indorsement of the bill of lading ; but the buyer should not be guilty of laches in taking possession of the goods on their arrival. By the Merchant Shipping Act, 1854 (17 & 18 Vict. c. 104), s. 55, every registered ship or share therein is to be transferred by bill of sale, which must be exe- cuted in the presence of one or more witnesses, and contain such description of the ship as is pointed out (t) Riches v. Evans, 9 C. & P. 640; Nunn v. Wilsmore, 8 T. RB. 521, per Le Blanc, J. (u) See Manton v. Moore, 7 T. RB. 67. (@) Atkinson v. Maling, 2 T.R. 462; Abbott on Shipping, 11th edit. 25. (y) Ewe parte Matthews, 2 Ves. 272; Ex parte Batson, 3 Bro. C.C. 362. POSSESSION RETAINED AFTER ASSIGNMENT. 89 by the act. By section 57, every bill of sale of a ship must be entered in a register book, which by section 92 is to be open to inspection during the hours of official attendance upon payment of a small fee. Sections 66 —75 relate to mortgages of ships and the registration thereof. By section 72, no registered mortgage of a ship is to be affected by the subsequent bankruptcy of the mortgagor, notwithstanding he may be reputed owner of the ship at the time of his becoming bank- rupt. See also 18 & 19 Vict. c. 91, s. 11. One strong element in repelling the presumption of fraud which arises from the seller being left in posses- sion of his property after an absolute assignment is notoriety in the transfer; and therefore where the cir- cumstances of the sale are well known in the neigh- bourhood, the goods of the seller will not, by reason of his continuance in possession of them, be liable to be seized by his execution creditors. Lord Coke’s advice with respect to such transactions is contained in Twyne’s case(z); he says: (1) Let the transfer be made in a public manner and before the neighbours, and not in private, for secresy is a mark of fraud. (2) Let the goods and chattels be appraised by good people to the very value, and take a gift in particular in satisfaction of your debt. (3) Immediately after the gift take the possession of the goods, for continuance in possession is a sign of trust. (z) 3 Rep. 80; and see Latimer v. Batson, 4 B. & C. 652; Leonard v. Baker, 1 M. & 8. 251; Kidd v. Rawlinson, 2 B. & P. 59; Jezeph v. Ingram, 8 Taunton, 838; Armstrong v. Baldock, Gow, 33 and note, 37; Macdona v. Swiney, 8 Ir. C. L. Rep. 37; Lady Arundell v. Phipps, 10 Ves. 139. 90 FRAUDULENT CONVEYANCES. CHAPTER X. The Act for the Registration of Bills of Sale. Ir has been shown in the last chapter that assignments of personal property without transmutation of possession are looked upon by the law with suspicion; inasmuch as such transactions give rise to a presumption that there is some secret understanding or agreement be- tween the assignor and assignee, whereby the former, although he remains in the possession and enjoyment of his property, is nevertheless to be protected from his creditors, and the assignment set up to prevent them from taking the property in execution. The opportunities of committing frauds of this de- scription are materially lessened by the Bills of Sale Act, 1854 (17 & 18 Vict. c. 36), which is amended by the Bills of Sale Act, 1866 (29 & 30 Vict. c. 96), and is entitled “ An Act to prevent Frauds upon Creditors by secret Bills of Sale of personal Chattels” (a). By section 1, every bill of sale of personal chattels made after the passing of the act, either absolutely or conditionally, or subject or not subject to any trusts, and whereby the grantee or holder shall have power, either with or without notice, and either immediately after the making of such bill of sale or at any future time, to seize or take possession of any property and (a) The corresponding Irish act is 17 & 18 Vict. c. 55. THE BILLS OF SALE ACT. 91 effects comprised in or made subject to such bill of sale, and every schedule or inventory, which shall be thereto annexed or therein referred to, or a true copy thereof(d), and of every attestation of the execution thereof (c), shall, together with an affidavit of the time of such bill of sale being made or given, and a description of the residence and occupation of the person making or giv- ing the same, or, in case the same shall be made or given by any person under or in the execution of any process, then a description of the residence and occu- pation of the person against whom such process shall have issued, and of every attesting witness to such bill of sale, be filed with the officer acting as clerk of the docquets and judgments in the Court of Queen’s Bench, within twenty-one days after the making or giving of such bill of sale (in like manner as a warrant of attorney in any personal action given by a trader is now by law required to be filed), otherwise such bill of sale shall, as against all assignees of the estate and effects of the person whose goods or any of them are comprised in such bill of sale under the laws relating to bankruptcy or insolvency, or under any assignment for the benefit of the creditors of such person, and as against all sheriffs’ officers and other persons seizing any property or effects comprised in such bill of sale in the execution of any process of any court of law or equity authorizing the seizure of the goods of the person by whom or of whose goods such bill of sale shall have been made, and against every (6) Green v. Attenborough, 3H. & C. 468. (c) As to whether attestation is necessary to the validity of a bill of sale, see Byrne on Bills of Sale, 1,158; Deffell v. Miles, 15L.T., N.S. 293; Trousdale v. Sheppard, 14 Ir. C. L. Rep. 370, 374. 92 FRAUDULENT CONVEYANCES. person on whose behalf such process shall have been issued, be null and void to all intents and purposes whatever, so far as regards the property in or right to the possession of any personal chattels comprised in such bill of sale, which at or after the time of such bankruptcy (d), or of filing the insolvent’s petition’ in such insolvency, or of the execution by the debtor of such assignment for the benefit of his creditors, or of executing such process (as the case may be), and after the expiration of the said period of twenty-one days, shall be in the possession or apparent possession of the person making such bill of sale, or of any person against whom the process shall have issued under or in the execution of which such bill of sale shall have been made or given, as the case may be. By section 4 of 29 & 30 Vict. c. 96, the filing or registration of a bill of sale must be renewed every five years, in the manner required by section 5 of that act (e); otherwise such filing or registration will cease to be of any effect (f). By section 2, all defeasances or conditions or decla- rations of trust to which any bill of sale is subject must be written on the same paper or parchment on which the bill of sale itself is written, before the filing of the same or a copy thereof, otherwise such bill of sale will be null and void against the parties mentioned in the first section, just as if the instrument or a copy thereof (d) An unregistered bill of sale is good against an official liquidator of a company, for he is a mere receiver for all parties. In re Marine Mansions Company, 4 L. R., Eq. 601. (e) Affidavits of renewal must bear a common law stamp of 5s., by sect. 6 of 29 & 30 Vict. c. 96. (7) See Needham v. Johnson, 8 B. & S. 190. THE BILLS OF SALE ACT. 93 had not been filed in the manner required by the act (9). By sections 3 and 4 (amended by section 7 of the later act), the officer of the court is to keep a book con- taining the particulars of each bill of sale (/). By section 5, any person shall be entitled to have an office copy or an extract of every bill of sale, or of the copy thereof filed as aforesaid, upon paying for the same at the like rate as for office copies of judgments in the Court of Queen’s Bench. By section 8 of 29 & 30 Vict. c. 96, this provision is extended to office copies of such affidavits of the renewal of bills of sale as are required to be filed by the act. By section 6, when the money due on a bill of sale is paid off, a memorandum of satisfaction may be written upon the instrument or a copy thereof by order of a judge. By section 7, the expression “ bill of sale” is to in- clude bills of sale(7), assignments, transfers, declara- tions of trust without transfer, and other assurances of personal chattels; and also powers of attorney, autho- rities, or licences to take possession of personal chattels as security for any debt(A); but it is not to include assignments for the benefit of the creditors of the per- (g) This section applies only to trusts reserved or declared in favour of the grantor of the bill of sale. Robinson v. Collingwood, 17 C.B., N.S. 777; 34L. J.C. P.18, 8 6 (A) A certified copy of this book is admissible under 14 & 15 Vict. c. 99, 8. 14 (the Act to amend the Law of Evidence, 1851); Grindell v. Brendon, 6 C. B., N.S. 698. (4) An agreement to give a bill of sale need not be registered. Za parte Homan, 12 L. R., Eq. 578. (hk) Ex parte Hopcroft, 14 W. BR. 168; Morton v. Woods, 4 L. R., Q. B. 293. 94 FRAUDULENT CONVEYANCES. son making or giving the same (/); marriage settle- ments(m); transfers or assignments of any ship or vessel or any share thereof; transfers of goods in the ordinary course of business of any trade or calling; bills of sale of goods in foreign parts or at sea; bills of lading ; India warrants; warehouse keepers’ certificates ; warrants or orders for the delivery of goods, or any other documents used in the ordinary course of business as proof of the possession or control of goods, or autho- rizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented. The expression “ personal chattels” is to include goods, furniture, fixtures and other articles capable of complete transfer by delivery; but it is not to include chattel interests in real estate ; nor shares or interests in the stock, funds, or securities of any government; or in the capital or property of any incorporated or joint stock company; nor choses in action; nor any stock or produce upon any farm or lands, which, by virtue of any covenant or agreement or of the custom of the county, ought not to be removed from any farm where the same shall be at the time of the making or giving of such bill of sale. Personal chattels are to be deemed in the “ apparent possession” of the person giving the bill of sale, so long as they remain upon the premises occupied by him, or as they are used and enjoyed by him in any place what- (1) Ashford v. Tinte, 7Ir.C. L. Rep. 91; General Furnishing Com- pany v. Venn, 32 L. J., Exch. 220. (m) Postnuptial settlements are not within the exception, and must be filed. Svwler v. Foster, 28 L. J., Q. B. 210; Gugen v. Sampson, 4F. & F. 974, THE BILLS OF SALE ACT, 95 soever, notwithstanding that formal possession thereof may have been taken by or given to any other per- son (7). By section 8, the act is not to extend to Scotland or Ireland. The corresponding Irish act is 17 & 18 Vict. c. 55. By section 57 of 33 & 34 Vict. c. 97 (the Stamp Act, 1870), a copy of a bill of sale is not to be filed in any court, unless the original duly stamped is produced to the proper officer. Buta bill of sale, although not duly stamped at the time of filing the copy (0), may be given in evidence in any civil action, upon payment of the amount of unpaid duty, and the penalty payable by law on stamping the instrument, and of a further sum of one pound (section 16 (1) ). The Bills of Sale Act applies only to secret disposi- tions of goods, which remain after the assignment in the apparent possession of the party executing the bill of sale; and therefore where personal chattels are actually delivered to and retained by the assignee no registration is necessary ( p). The effect of registering a bill of sale is only to give notoriety to the transaction, and therefore the Bills of Sale Act does not interfere with the doctrine of reputed (n) See Ex parte Hooman, 10 L. R., Eq. 63; Ha parte Lewis, 6 L. R., Ch. 626; Gough v. Everard, 2 H.&C. 1; Smith v. Wall, 18 L. T., N.S. 182; Robinson v. Briggs, 6 L. R., Exch, I (0) See Bellamy v. Saull, 4 B. & S. 265; 32 L. J., Q. B. 366, 8. C, which was decided on 24 & 25 Vict. c. 91; the 34th section of which is similar to section 57 of the Stamp Act, 1870. (p) Piercy v. Humphreys, 17 L. T., N.S. 463; Beevor v. Savage, 16 L.T., N.S. 358; Minister v. Price, 1 ¥F. & F. 686; Hu parte Red- Sern, 19 W. R. 1058. 96 FRAUDULENT CONVEYANCES. ownership under the bankrupt laws(q). It was decided by Vice-Chancellor Malins, in the case of Ashton v. Blackshaw (r), that goods comprised in a bill of sale, which is properly registered, will not pass to the trustee in bankruptcy of the grantor of such bill of sale, unless his possession is inconsistent with the nature and terms of the instrument. Where a bill of sale is void against the persons men- tioned in the act for want of registration, it is also void against the grantee of a subsequent registered bill of sale(s). Registered bills of sale take rank inter se ac- cording to the date of registration, and their priorities will not be disturbed by the fact that the holder of one instrument has been the first to take possession of the goods comprised in his security, because the Bills of Sale Act does not require the grantee of a bill of sale to take possession in order to give him a complete title against the grantor’s creditors (¢). In Green v. Attenborough (u), the original schedule to a bill of sale was written on several pieces of paper. A fair copy of the schedule was made and annexed to the bill of sale. Then a copy of the bill of sale and of the new schedule was filed. This was held a valid registration. And in Gardnor v. Shaw(v), it was (q) Stansfield v. Cubitt, 2 De G. & J. 222; Badger v. Shan, 2 E. & E. 472; In re O’ Connor, 27 L. T. 27; Re Daniel, 25 L. T. 188. (rv) 9L. R., Eq. 516; He parte Homan, 12 L. R., Eq. 598. (8) Richards v. James, 2 L. R., Q. B. 285; Edwards v. English, 7 E. & B. 564; see Nicholson v. Cooper, 3 H. & N. 384; Morewood v. South Yorkshire Railway Company, 8 H. & N. 798. (t) Ex parte Allen, 11 L. R., Eq, 209. (w) 3H. & C. 468, (v) 19 W. R. 753. THE BILLS OF SALE ACT. 97 held that a true copy of a bill of sale is registered, al- though the grantee’s name may be misspelt. Any error, however, in spelling the name of the grantor will be fatal. The affidavit required by the act must state the time when the bill of sale was made, and contain a descrip- tion of the residence and occupation of’ the person making the same, and of every attesting witness thereto. The words of the act must be strictly complied with, and therefore loose inaccurate descriptions of persons and places must carefully be avoided. Thus, the word *‘ gentleman” does not describe the occupation of an attorney’s clerk (x), or of a clerk in the audit office (y); but it may be a sufficient description of a person who has for some time past been out of employment (z). “ Es- quire” is an insufficient description of a lessee and ma- nager of a theatre(a). Ifa public company gives a bill of sale its style and name are sufficient, without stating residence and occupation; and directors, who sign as directors and not as attesting witnesses, need not add their residences and occupations (5). A firm is suffi- ciently described as “partners and printers, New Street, Blackfriars,” although the wrong county may be (2) Brodrick v. Scale, 6 L. R., C. P. 98; Blackwell v. England, 8 E. & B. 56; Beales v. Tennant, 29 L. J., Q. B. 188; see Luckin v. Hambyn, 18 W. R. 43. (y) Allen v. Thompson, 1 H. & N. 15; 25 L. J., Ex. 249, 8. C.; Adams vy. Graham, 33 L. J., Q. B. 71. (z) Morewood v. 8. Y. R. § R. D. Co.,3 H. & N.798; 28 L. J., Exch. 114, 8. C.; Sutton v. Bath, 3H. & N. 382; 1 F. & F. 152, 8. C.; Gray y. Jones, 14 C. B., N.S. 743; Attenborough v. Thompson, 2 H. & C. 559. (a) Ex parte Hooman, 10 L. R., Eq. 63. (6) Shears v. Jacobs, 1L.R., C. P. 518; Deffell v. White, 36 L.J., C. P. 25; 2L. R., C. P. 144, 8. €. H.F. F 98 FRAUDULENT CONVEYANCES. added (c). It is sufficient if the affidavit states that the bill of sale was made between the parties residing at the places and of the occupations therein men- tioned (d); and the same strictness must be observed with respect to the residences and occupations of attest- ing witnesses as in the case of the party executing the bill of sale (e). The person to whom the bill of sale is given has twenty-one days to register in order to complete his title ; if he takes possession within this time he does not require to register. The goods comprised in the bill of sale cannot be seized by another creditor before the expiration of the twenty-one days(/ ). A bill of sale under this act must be an instrument by which property is intended to pass. A mere receipt’ for money is not a bill of sale within the statute (q); neither is an agreement in a building lease that all ma- terials brought on the land shall be considered as land and belong to the lessor, although such an assignment gives the landlord an equitable interest which cannot (ec) Hemer v. Cox, 30 L. J., Q. B. 73; Roe v. Bradshaw, 1L. B., Exch. 106. (d) Fouilger vy. Taylor, 5 H. & N. 202; Wileoronv. Searby, 29 L.J., Ex. 154; Pickard v. Bretts, 5 H. & N.9; Hatton v. English, 7 BE. & B. 94; Banbury v. White, 2H. & C. 300; M*Cue v. James, 19 W. R. 158. (¢) Trousedale v. Sheppard, 14 Ir. Rep., C.L. 370; Tuton v. Sanoner, 3H. & N. 280; Law v. M'Gill, 12 W.R. 826; Briggs v. Boss, 3 L.R., Q. B. 268. (f) Marples v. Hartley, 3 EK. & E. 60; 30 L. J., Q. B. 92, 8. CG; Hale v. Saloon Omnibus Company, 4 Drew, 492; Banbury v. White, 2H. & C. 300; 32 L. J., Ex. 258, 8. C.; Hollingsworth v. White, 10 W. R. 629. (g) Allsop v. Day, 7 H. & N, 457; Hale v. Saloon Omnibus Com- pany, supra; Dyerley v. Prevost, 6 L. R., C. P. 144. THE BILLS OF SALE ACT. 99 be interfered with by the lessee’s creditors(). An agreement to give a bill of sale need not be regis- tered (7). The word fixtures in the act applies to fixtures as chattels. Where they are attached to the soil and pass by a conveyance or mortgage of the land as part of it, the act does not apply(#). And here it may be ob- served, that although a tenant has a right during or at the end of the term to remove fixtures which have been erected for the purposes of trade or ornament, never- theless such fixtures are not chattels till they are actually separated from the soil. Consequently, an assignment by the tenant of the demised land, with the trade and ornamental fixtures thereon, will no more require regis- tration under the Bills of Sale Act than if he had made the assignment as owner in fee (/). (h) Brown v. Bateman, 2 L. R., C. P. 272; Blake v. Izard, 16 W. R. 108. (i) Ex parte Homan, 12 L. R., Ex. 578. (2) Mather v. Fraser, 2K. & J. 536; Waterfall v. Penistone, 6 E. & B. 876; see Morton v. Woods, 9 B. & S. 632, 659; 4 L. R., Q. B. 293, 307, S. C.; Begbie v. Fenwick, 19 W. R. 402. (1) Mather vy. Fraser, supra; Boyd v. Sharrock, 5 L. R., Eq. 72; Ez parte Barclay, 5 De G., M. & G. 403; Ew parte Scott, 29 L. T. 314; Ex parte Schroder, 29 L. T. 185; Climie v. Wood, 3 L. R., Ex. 257; 5 L. R., Ex. 828 (Exch. Chamber), 9. C.; He parte Ashbury, 4 L. R., Ch. 630. F2 100 FRAUDULENT CONVEYANCES. CHAPTER XI. Of reputed Ownership. By section 125 of the Bankrupt Act, 1849 (12 & 13 Vict. c. 106), it was enacted that, “ If any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sale, alteration, or disposition as owner, the court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy: provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mort- gage or assignment, duly registered according to the provisions of an act made in the parliament holden in the eighth and ninth years of the reign of her Majesty, intituled ‘ An Act for the Registering of British Vessels,’ or any of the acts therein mentioned.” The Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), repeals the foregoing statute; but by section 16 it is provided that “the property of the bankrupt divisible amongst the creditors, and in this act referred to as the property of the bankrupt, shall comprise (sub-section 5): all goods and chattels being, at the commencement of the bankruptcy, in the possession, order, or disposition REPUTED OWNERSHIP. 101 of the bankrupt, being a trader, by the consent and permission of the true owner, of which goods and chat- tels the bankrupt is reputed owner, or of which he has taken upon himself the sale or disposition as owner; provided that things in action, other than debts due to him in the course of his trade or business, shall not be deemed goods and chattels within the meaning of this clause.” The bankruptcy of a debtor commences at the time of the act of bankruptcy being completed on which the order is made adjudging him to be bankrupt (section 11); Under the repealed Act of 1849, unless the Court of Bankruptcy made an order directing the goods to be sold and disposed of, the bankrupt’s property in them was not divested (a). Under the new act the property of which the bankrupt is reputed owner ap- pears to be vested in the trustee in bankruptcy for the benefit of the creditors, without the necessity of any order by the court, or of any act on the part of such trustee (0). It will be observed, that there is no exception in the new act in favour of registered mortgages and assign- ments of ships; but it is presumed that the legislature did not intend in any way to interfere with the provisions of the Merchant Shipping Acts, in one of which, viz. the Act-of 1854, s. 72 (c), there is a special provision that no registered mortgage of a ship is to be affected by the subsequent bankruptcy of the mortgagor, notwithstand- (a) Heslop v. Baker, 6 Exch. 740; 8 Exch. 411, 8. C. (4) Williams on the Bankruptcy Act, 1869, p. 23, (ce) Vide supra p. 89. 102 FRAUDULENT CONVEYANCES. ing he may be reputed owner of the ship at the time of his becoming bankrupt. The words “ goods and chattels” in the above-cited sections of the Bankruptcy Acts do not extend to chat- tels real(d); or to fixtures, unless they are severed from the freehold (e). There appears to be some uncertainty as to whether they extend to shares in a company seised of real estate, when the shares are not expressly declared to be personalty by the act, charter or deed of settlement by which the company is constituted or regulated ( f ). * In order to bring a case within the statute there must be a real owner distinct from an apparent owner, and the real owner must consent to the apparent owner- ship assuch”(g). There is no consent where the bank- rupt has obtained the goods from the true owner by fraud; or in cases where the true owner is ignorant of the existence of the property, or of the extent of his rights in it (A). The true owner will be entitled to a return of his goods, if he has demanded them before he had any notice of an act of bankruptcy being committed; for such a demand is a dealing or transaction within sec- (d) Roe v. Galliers, 2 T. R. 133. (¢) Horn v. Baker, 9 East, 215 ; 2 Smith’s Leading Cases, 190, 6th edit. (Ff) See Lindley on Partnership, 2nd edit. 1129; Ha parte Lancaster Canal Company, Mont. 116; Mon. & BI. 94, S. C. (g) Per Parke, B., in Load v. Green, 15 M. & W. 216; see Re Bank- head’s Trust, 2 K. & J. 560; Mace vy. Cadell, Cowper, 232; and see Lord Redesdale’s observations in Joy v. Campbell, 1 Sch. & Lef. 336. (h) Load v. Green, supra; Re Rawbone’s Trust, 8 K. & J. 476, 300; Ha parte Richardson, Buck. 480; Ew parte Hinds, 3 DeG. & S. 613. : REPUTED OWNERSHIP. 103 tion 133 of 12 & 13 Vict. c. 106 (re-enacted by section 94, sub-section 3, of the new act) (7). Goods left after a sale in the temporary possession of the seller for the buyer’s convenience are not in the seller’s order and disposition(/). And the bankrupt will not be reputed owner of property which has been lodged with him for a specific purpose (/). A buyer has a reasonable time to choose from goods sent to him upon sale or return; if he is allowed to keep them long in his possession, he will be reputed owner, and, in the event of his bankruptcy, the goods will pass to his creditors (m). The bankrupt will be treated as having the order and disposition of goods left in his hands after an execu- tion, unless there has been a public sale of the goods by the sheriff(m). A mortgagor holding over after default in payment of the mortgage money will be reputed owner of the property in mortgage; and there are cases in which it has been held that he may be reputed owner before default (0); but such cases seem to be at variance with recent decisions ( p). (4) Brewin v. Short, 5 E. & B. 227; Pariente v. Pennell, 2M. & Rob. 517; Ex parte Styan, 1 Ph. 205; 2 M., D. & De G. 219, 8. C. (k) Flyn v. Matthen's,1 Atk. 185; Wilkins v. Bromhead, 6 M.& G. 963; Boddy v. Esdaile,1 C. & P. 62; Bartram v. Payne, 3 C. & P. 175. (1) Ex parte Aiken, 2 Madd. 192; Ex parte Pease, 19 Ves. 49; 1 Rose, 232, 8. C.; Ha parte Cotterill, 3M. & Ayr. 376. (m) Gibson vy. Bray, 8 Taunton, 76; Neate v. Ball, 2 Hast, 117; Livesay v. Hood, 2 Campb. 83. (n) Lingard v. Messiter, 1 B. & C. 308; Lingham v. Briggs, 1 B. & P. 82; Bryson v. Wylie, 1 B. & P. 83, n.; Hae parte Shuttle- worth, 1D. & C. 223; and see Barron v. Bell, 5 E. & B. 540; Fletcher vy. Manning, 12 M. & W. 571. (0) See cases cited ante, p. 87, note (7). (p) See Ashton v. Blackshaw, 9 L.R., Eq. 510; La parte Homan, 12 L. R., Eq. 598. 104 FRAUDULENT CONVEYANCES. Goods of which the bankrupt has possession as trus- tee(y), or in autre droit, as an executor or administra- tor, are not in his order and disposition(r). The same remark applies to goods deposited with him in the capacity of factor or agent; or in any other case where it is the known habit of one person to have the goods of others in his possession (s). Where a debt is assigned it is necessary that the assignee should give notice of the change of property to the debtor, otherwise the assignor will be reputed owner of the money which is payable, and it will, if he becomes bankrupt, pass to the trustee in bankruptcy (¢). The same rule applied, until the new act, to the assign- ment of policies of assurance(u), of shares in public companies (x), and indeed of all choses in action, except negociable instruments, such as bills of exchange and promissory notes(y). However, the order and dispo- (q) Winch v. Keeley, 1 T. R. 619; Ex parte Gillett, 3 Mad. 28; Ez parte Smith, 4D. & C. 679; Ex parte Witham, 1M.,D. & DeG. 624; but see Ha parte Burbidge, 1 Deac. 131. (r) Ex parte Ellis, 1 Atk.101; Ex parte Marsh, 1 Atk. 159; Ex parte Butler, Ambl.74; Viner v. Cadell, 3 Esp. 88; see Low v. Fisher, 3B. & Ald. 135; Ha parte Thomas, 3 M., D. & De G. 40; 2M.,D. & De G. 294, S.C. (s) Thackthwaite v. Cock, 8 Taunton, 487; Hamilton v. Beil, 10 Exch. 545; Whitjield vy. Brand, 16 M. & W. 282; Collins v. Forbes, 3 T. RB. 316. (4) Webb's Policy, 36 L. J., Ch. 341; Br parte Monro, Buck. 300; Ex parte Burton, 1G. & J. 207; Ex parte Usborne, 1G. & J. 358. (u) Ex parte Colvill, Mont. 110; affirmed nom. Er parte Tennyson, Mont. & Bl. 67; Williams v. Thorp, 2 Sim. 257; Ex parte Caldwell, 13 L. R., Eq. 188. (w) Hex parte Nutting, 2M., D. & DeG. 302; Ex parte Harrison, 3M. & Ayr. 506; Exe parte Vallance, 3 M. & Ayr. 224; Ha parte Union Bank of Manchester, 12 L. R., Eq. 354. (y) Ex parte Price, 3 M., D. & DeG. 586. As to the assignment of reversionary interests, see Bartlett v. Bartlett, 1 DeG. & J. 127; Re Rawbone’s Trust, 3 K. & J. 476. REPUTED OWNERSHIP. 105 sition clause in the new act (section 15, sub-section 5, cited above) contains an express proviso excluding from its operation things in action, other than debts due to the bankrupt in the course of his trade or business, It is not quite clear what is meant by the words “ things in action,” but it has been decided that they do not include shares in public companies and other similar interests, which are rather property than things in action (z). For further information on the subject treated of in this chapter reference may be made to the various text books on the Bankrupt Laws; and also to the work of Mr. Lindley on Partnership, and that of Mr. Smith on Mercantile Law. (z) Ea parte Union Bank of Manchester, 12 L. R., Eq. 354. FS 106 FRAUDULENT CONVEYANCES. CHAPTER XII. Concerning Conveyances and Assignments made during Litigation to defeat the Process of the Court. A VOLUNTARY conveyance or assignment made by a party to-a cause, for the purpose of protecting his pro- perty from being taken in execution, should the action or suit terminate adversely to him, is fraudulent and void against the party whose execution is sought to be hindered and delayed. Thus, in Blenkinsopp v. Blen- kinsopp (a), a husband, pending pfoceedings against him by his wife in the Ecclesiastical Court, executed a voluntary settlement of his real and personal estate. The wife obtained a decree for a divorce, and 3002. a year alimony was awarded to her. Writs of seques- tration were issued against the husband for the alimony - and arrears, and for the costs of the suit, but by reason of the voluntary settlement the writs could not be en- forced. Upon a bill filed by the wife in chancery the settlement was set aside as fraudulent and void, the court being of opinion that it was executed by the hus- band with the view of defeating the process which he (4) 12 Beay. 568; 1 De G., M. & G. 495, S. C.; see also Partridge v. Gopp, 1 Eden, 163; Muskedy Kazim’s Claim, Perry’s Oriental Cases, p. 85; Barling v. Bishopp, 29 Beay. 417; Coulston v. Gardiner, 3 Swans. 279; Northeliffe v. Warburton, 31 L.J., Ch. 777; 4 De G., F. & J. 449, S.C; Musadee Mahomed v. Meersa Ally Shoostry, 8 E. F. Moore, 90; 6 Moore, E. I. App. 27, 8. C. As to the fraudulent removal of goods in order to avoid a distress for rent, see 11 Geo. 2, ¢. 19. ASSIGNMENTS TO DEFEAT EXECUTION. 107 knew would issue from the Ecclesiastical Court, if the wife was successful in her suit there. The sequestration in the case just cited was issued under the authority of an act of parliament which had not passed when the voluntary settlement was executed, but the court held that this circumstance made no differ- ence. Lord Justice Knight Bruce said: “‘ We consider it to be demonstrated by the evidence that the deed was executed by the husband with the fraudulent intention of preventing the suit, if successful, from affecting his property. We think that it makes no difference that by a subsequent improvement or alteration in the law a better and more effectual, or a different mode of affect- ing the property by way of execution has been created, or that the wife has resorted to it rather than to the mode which was alone in force when the deed was exe- cuted.” The question whether an assignment for valuable consideration made during litigation can be supported must depend upon whether it was a bond fide trans- action, intended to have real operation according to the purport and character of the instrument by which the transfer was effected, or whether it was a mere colour- able affair got up for the purpose of protecting the pro- perty of the assignor from being taken in execution, if he was unsuccessful in the suit (0). (6) Wood v. Divie,7 Q. B. 892; Hale v. Saloon Omnibus Company, 4 Drewry, 492; Hveleigh v. Purssord, 2M. & R. 539; Cadogan v. Kennett, Cowper, 434; Dewey v. Bayntun, 6 East, 257; Low v. M‘ Gill, 12 W. R. 826; Marlow v. Orgill, 8 Jur., N.S. 789, 829; Sutton v. Bath, 1 F. & F. 152; Henderson y. Lloyd, 3 F. & F. 7; Young v. Barnett, 1 F. & ¥F. 320; Bunyard v. Seabrook, 1 F. & F. 321; Slad- den v. Serjeant, 1 ¥. & F. 322; Herne vy. Meeres, 1 Vernon, 465; see Bott v. Smith, 21 Beay. 511. 108 FRAUDULENT CONVEYANCES. By section 1 of the Mercantile Law Amendment Act, 1856 (19 & 20 Vict. c. 97), it is enacted, that no writ of fier facias or other writ of execution, and no writ of attachment against the goods of a debtor, shall prejudice the title to such goods acquired by any person bond fide and for a valuable consideration before the actual seizure (c) or attachment thereof by virtue of such writ; provided such person had not, at the time when he acquired such title, notice that such writ, or any other writ by virtue of which the goods of such owner might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff, under-sheriff, or coroner. In Hobson v. Thelluson(d), a debtor conveyed goods to two of his creditors for the benefit of themselves and his other creditors. It was held that the knowledge of the debtor, at the time of making the deed, that a writ of execution was out against his goods must be taken to be knowledge of the trustees within the proviso in section 1 of the statute just cited; and that conse- quently, as the title of the trustees was not protected by that section, the goods were bound by the delivery of the writ to the sheriff. A man who is not within the scope of the bankrupt laws may lawfully prefer one creditor to another; and therefore a debtor may lawfully assign the whole of his goods in discharge of a sum due to one of his creditors, although he may thereby disappoint all the rest, and although the others may have obtained judgment for their debts, and have issued execution thereon; pro- (c) As to what is actual seizure, see Gladstone v. Padwick, 6 L.R., Exch. 203. (@) 2L. RB, Q. B. 642. ASSIGNMENTS TO DEFEAT EXECUTION. 109 . vided, that is to say, the favoured creditor had no notice at the time he took the assignment that the writs had already been delivered into the hands of the sheriff, otherwise he will lose the protection given him by the statute which has just been referred to (e). In Holbird v. Anderson (f ), a debtor, against whom an execution was about to issue at the suit of one cre- ditor, went to another creditor, and voluntarily gave him a warrant of attorney to confess judgment for the debt he owed him. The second creditor immediately entered up judgment, issued execution, and seized the debtor’s goods before the other creditor could reach them. It was held that the preference given by the debtor to the one creditor over the other was not fraudu- lent. In Alton v. Harrison (g), a person, in expecta- tion that a writ of sequestration would issue against him for non-payment of a sum of money ordered to be paid by him into the Court of Chancery, executed a deed of mortgage, which was registered as a bill of sale, vesting substantially all his property in trustees for the benefit of five of his creditors. The deed contained a proviso that the debtor should remain in possession of his property for six months, but not sq as to let in any execution or sequestration, and in case any such should (e) Eastwick v. Caillaud, 5 T.R. 420; Collyer v. Fallon, 1 T. & R. 459; Lee v. Green, 6 De G., M. & G. 155; Goss v. Neale, 5 Moore, C. P. 19; Cookson v. Fryer, 1¥. & F. 328; Westbury v. Clapp, 12 W.R. 511; Stewart v. Moody, 1 C., M. & R. 777; see Cheesman v. Eeall, 6 Exch. 341. As to judgments affecting land, see infra, Chapter XX VII. (f) 5 T. R. 235; Wood v. Dixie, 7 Q. B. 892; Darvill v. Terry, 30 L. J., Ex. 355; see Bott v. Smith, 21 Beav. 511. (g) 4L.RB., Ch. 622; affirming 20 L. T., N.S. 1001; Allen v. Bonnet, 18 W. R. 183; Hill v. Cowdery, 1 H. & N. 360, 110 . FRAUDULENT CONVEYANCES. be enforced, his possession was to cease. A writ of sequestration was subsequently issued. It was held, in spite of the proviso, that the deed was not fraudulent within the statute 13 Eliz. c. 5, against the general creditors of the mortgagor(h). In the case of The Wolverhampton Banking Company v. Marston (i), an executrix, after probate and after judgment recovered against her for a debt due from her testator, by deed assigned all his property and effects to trustees for the benefit of his creditors, and the assignment was held valid as against the judgment creditor. Bagot v. Arnott and others(k) was an action of trover. The question was whether the defendants, as execution creditors of one S., were entitled to seize cer- tain goods which the plaintiff claimed as his, and of which he had taken possession under a bill a sale exe- cuted to him a few days before by 8. Part of the con- sideration for the bill of sale was money advanced by the plaintiff to S. for the bond fide purpose of obtaining security for a large pre-existing debt. At the time of the loan the plaintiff was aware that S. had committed felony, and that he intended to apply a portion of the money advanced to him in effecting his escape from this country. It was held that the transaction was valid; and that therefore the plaintiff's possession of the goods could not be disturbed. (2) No point was taken as to the mortgage being an act of bank- ruptcy. (4) 7H. & N.148; Hvans v. Jones, 3H. & C. 423; Riches v. Evans, 9C. & P. 640; Meux v. Howell, 4 East, 1; Pickstock v. Lyster, 3 M. & S. 3871; Bowen v. Bramidye, 6 C. & P. 140; see Symons v. George, 3H. & C. 68, and S. C. on appeal, p. 996. (hk) 2 Iv. Rep., C. L. 1. Cae: CHAPTER XIII. Concerning Conveyances and Assignments made in order to defeat the Crown. As the statute 13 Eliz. ¢. 5, speaks of creditors and others who may be defeated of their just and lawful actions, suits, accounts, &c., it has been held to extend to conveyances and assignments made by traitors, felons and other persons in order to avoid the forfeiture of their lands and goods to the crown. One of the earliest cases on this subject is Paunce- foot’s case(a), which was this: Pauncefoot, being in- dicted for recusancy for not coming to divine service, and having an intent to flee beyond the sea, and to defeat the Queen of all that might accrue to her for his recusancy or flight, made a gift of all his leases and goods of great value coloured with feigned considera- tion; he then fled beyond the sea, and afterwards was outlawed on the same indictment. Upon the question whether this gift was not void, either by the common law or by any statute, some of the judges conceived that the common law, which abhors all fraud, would make void this gift as against the Queen; and there was some doubt whether the statutes against fraudulent conveyances of the preceding reigns applied to such a (a) Lane, 44, 45; cited in Twyne’s case, 1 Smith’s L. C. 5, 6; see Ward vy. Lant, Pr. Ch. 182, which was the case of a fraudulent assignment to avoid the payment of taxes. 112 FRAUDULENT CONVEYANCES. case. But the whole court agreed that it was reached by the statute 13 Eliz. c. 5, in consequence of the use of words “ creditors and others” in that act; by which it appeared to them that its provisions were plainly intended to extend not only to creditors, but to all whose actions, suits, forfeitures or executions might be in anywise hindered or delayed. And the court further considered that the word forfeiture was not to be con- fined to the forfeiture of an obligation, recognizance, or the like, but that it was to be extended to everything which shall by law be forfeited to the king or a subject. Therefore, if a man makes a voluntary settlement of lands with intent that they shall not be forfeited, and afterwards commits treason or felony and is attainted,. the settlement is fraudulent and void against the crown(b). The time which elapsed between the exe- cution of the settlement and the commission of the offence may of course form an important element in considering the evidence of fraudulent intent. If only a few days intervened, the evidence of fraud would with-: out doubt be deemed conclusive (ec). In Sir Walter Raleigh's case, the act of treason upon which the attainder followed was long after the date of the set- tlement, but the instrument was nevertheless held void (d). Lands are not forfeited except upon attainder; and therefore, where no attainder follows upon conviction of an offence, a settlement by the prisoner of his lands cannot be impeached by the crown (e). (0) Viner’s Abrid., Fraud (A), 1, 3. (¢) Viner’s Abrid., Fraud (A), 1; Roberts on Voluntary Convey- ances, p. 582. (d) Lane, 48. (e) Rex y. Bridger, 1M. & W. 145, ASSIGNMENTS TO DEFEAT THE CROWN. 113 + The forfeiture of lands upon attainder relates back to the time when the act of treason or felony was com- mitted, so as to avoid all intermediate sales and incum- brances(f). But the forfeiture of goods, and of chattels, real or personal, operates only from the time of the conviction of the traitor or felon; and therefore a bond fide sale for value by the offender of his goods and chattels after the offence and before conviction will be supported. The question whether the sale was without fraud and for valuable consideration is to be left to the opinion of the jury, and is not to be pre- sumed by the court where it is not expressly found as a matter of fact(g). If the assignment is voluntary, or is made merely in pursuance of the moral obligation to provide for a wife or child, it will not be good (h); for nothing short of a valuable consideration will meet the requirements of section 5 of the statute 13 Eliz. c. 5. Therefore, where a felon who was afterwards convicted made a settlement of his goods, in order to make provision for his son, this was held to be fraudu- lent against the crown (7). But an assignment of funds by a prisoner charged with felony to secure the payment of an antecedent debt and the costs to be incurred in his defence is good, notwithstanding his subsequent conviction(/). In Chowne v. Baylis (1), a clerk having robbed his em- (7) 4 Bl. Comm. 381, 386; Axon., 2 Simon, N. §. 71. (yg) Hawkins, P. C., bk. 2, c. 49, s. 11. (h) Shaw v. Bran, 1 Starkie, 319. (i) Jones vy. Ashurst, Skinner, 357; and see Morewood v. Wilkes, 6 C. & P. 144; Re Saunder’s Estate, 4 Giffard, 179; 32 L. J., Eq. 224; 9 Cox, C. C. 279, 8. C. (2) Perkins v. Bradley, 1 Hare, 219. (2) 81 Beavan, 351; 31 L. J., Ch. 757, & C. 114 FRAUDULENT CONVEYANCES. ployers of money gave them, upon the discovery of his frauds, an equitable security on policies and on lands for the amount. He was afterwards prosecuted and convicted. It was held that the money abstracted formed a good consideration for the security, and that it was valid. In Bagot v. Arnott(m), a large sum was due from A. to B. In order to obtain a further ad- vance A. was obliged to execute a bill of sale to B. to cover the whole sum due. B. knew that A. intended to employ the money advanced in effecting his escape from this country, having committed felony. But it was held that the transaction was valid. An assignment of a felon’s goods bond fide made for a valuable consideration, after the commission day of the assizes, but before the day upon which he is actually tried and convicted, will pass the property (7). As a voluntary settlement is good against the party making it, and those who claim under him, the pro- perty comprised in it will not pass to the crown upon the subsequent outlawry of the settlor (0). By the recent statute, 33 & 34 Vict. c. 23 (4th July, 1870), it is enacted (section 1), that from and after the passing of this act no confession, verdict, inquest, con- viction, or judgment of or for any treason or felony or felo de se shall cause any attainder or corruption of blood, or any forfeiture or escheat; provided that nothing in the act shall affect the law of forfeiture consequent upon outlawry. By section 9, the crown is empowered to commit the custody and management (m) 2Tr. Rep., C.L. 1; see Pearce v. Brookes, 1 L. R., Exch. 213; Cannan v. Bryce, 3 B. & Ald. 179. (n) Whitaker v. Wisbey, 12 C. B. 44. (0) Goldsmith v. Russell, 5 De G., M. & G. 547, 555, ASSIGNMENTS TO DEFEAT THE CROWN. 115 of the property of any convict ( p), during her Majesty’s pleasure, to an administrator, who is to have full con- trol over such property, and may pay thereout all the convict’s debts and liabilities, and the costs of his pro- secution (7), and may also compensate those parties whom the convict has injured by his criminal acts, and make such allowances to the convict’s family and to the convict himself, while lawfully at large, as may be necessary (7). Subject as aforesaid the convict’s pro- perty is to be preserved, and the income thereof invested and accumulated for him or his representatives, until he has completed his term of imprisonment or obtained a pardon, or until his death (s). The crown may also appoint an interim curator to manage the convict’s property ; but on the appointment of an administrator the powers of the interim curator are to cease(t). The act does not apply to Scotland. (py) “Convict” in this act is defined to mean any person against whom, after the passing of the act, judgment of death or of penal ser- vitude shall have been pronounced or recorded by any court of compe- tent jurisdiction in England, Wales or Ireland upon any charge of treason or felony. (q) Sects. 13 and 14, (7) Sects. 15 and 16. (8) Sect. 18. (t) Sects. 21—26. 116 FRAUDULENT CONVEYANCES. CHAPTER XIV. As to Voluntary Settlements of Property which cannot be taken in Execution by Creditors. Tue ground on which a voluntary assignment is held to be fraudulent by virtue of the statute 13 Eliz. c. 5, ‘being that thereby the assignor’s creditors are defrauded and delayed in their just suits, actions, accounts, &c., it has been laid down that property which cannot be reached by creditors is not within the purview of the. statute, and that therefore a voluntary assignment of such property is not fraudulent(a). On this ground it was the rule before the statute 1 & 2 Vict. c. 110, s. 11 (by which copyholds are rendered liable to be extended under an elegit as well as frecholds), that a voluntary assignment of copyholds could not be avoided at the suit of creditors, inasmuch as copyholds were not liable to the debts of the copyholder, unless he charged them by his will, or unless they came within the provisions of the statute 3 & 4 Will. 4, c. 104, which makes copy- hold estates assets for the payment of debts (0). In like manner it was also held, that voluntary assignments of money, bank notes, stock and choses in (a) See the case of Bayard v. Hoffman, 4 Johnson, Ch. Rep. 450, for the opinion of Mr. Chancellor Kent on this subject, and see 1 Story on Eq. § 366—368, (6) Matthews v. Feaver, 1 Cox, 278; Doe d. Tunstill v. Bottriell, 5 B. & Ad. 131; Doe v. Routledge, Cowper, 705, 710; Scriven on Copyholds, 39, 122. ° PROPERTY NOT LIABLE TO EXECUTION. 117 action could not be impeached by creditors, as money, bank notes, &c., could not be taken in execution (c). Though an opinion has been intimated that such an assignment might have been avoided by creditors after the assignor’s death, in a suit against his executor, as choses in action have always been assets in the hands of an executor for the payment of debts (d). By section 12 of the statute 1 & 2 Vict. c. 110, the sheriff is empowered by virtue of any writ of 77. fa. to take in execution any money or bank notes (whether of the Governor and Company of the Bank of England, or of any other bank or bankers), and any cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money belonging to the person against whose effects any such writ shall be sued out. And by section 14 of the same act a judgment may by a Judge’s order be made a charge upon any government stock, funds or annuities, or any stock or shares of or in any public company in England (whether incorpo- rated or not), standing in the name of the person against whom such judgment shall have been entered up, or in the name of any person in trust for him (e); and such order is to entitle the judgment creditor to all the remedies he would have been entitled to if a charge had been made in his favour by the judgment debtor, but no proceedings are to be taken until six months (c) Duffin v. Furness, cases tem. Lord King, 97; Sims v. Thomas, 12 A. & EB. 536; Barrack v. M‘Culloch, 3K. & J. 110; 26 L. J., Ch. 105, S. C.; Nantes v. Carrock, 9 Ves. 189; Dundus y. Dutens, 1 Ves, jun. 196; MM Carthy v. Goold, 1B. & B. 387. (d) Norcutt v. Dodd, Cr. & Ph. 100; Rider v. Kidder, 10 Ves. jun. 360. (e) Warden v. Jones, 2 De G. & J. 76, 86; 23 Beavan, 487, S. C. 118 FRAUDULENT CONVEYANCES. after the date of the said order. By section 15, the order is to operate as a distringas upon the said stock, shares, &c., unless discharged by a judge of one of the superior courts at Westminster. The remedies of judg- ment creditors against stock, annuities, funds and shares are extended by 3 & 4 Vict. c. 82, s. 1; and by section 18 of 1 & 2 Vict. c. 110, decrees and orders of the Court of Chancery are to have the effect of judg- ments. The sheriff has no power under section 12 of the statute 1 & 2 Vict. c. 110, to seize money or securities for money while in the hands of a third person as trustee for the debtor(f). And neither money nor other goods taken in execution become by the seizure the property of the execution creditor. They cannot, therefore, be taken under a fi. fa. issued at the suit of a third person against the execution creditor, so long as they remain in the hands of the sheriff. The person levying the second fi. fa. must wait until the sheriff has paid over the money or the proceeds of the sale of the goods to the party suing out the execution (9). The foregoing observations respecting the exemption of money, stock, and choses in action from seizure under an execution applied also to policies of assurance (h). But it is decided that policies of assurance are securities for money within séction 12 of 1 & 2 Vict. c. 110, so (f) France v. Campbell, 6 Jur. 105; Robinson v. Pearce, 7 Dowl. 93; 2 Jurist, 896, S.C. As to money standing in the name of the accountant-general, see Courtoy vy. Vincent, 15 Beavan, 486; War- burton v. Hill, Kay, 470, 478. (g) Collinridge v. Paxton, 11 C. B. 683; Wood v. Wood, 4 Q. B. 397. (h) Grogan v. Cooke, 2 B. & B. 230. PROPERTY NOT LIABLE TO EXECUTION. 119 that they may now be taken in execution by the sheriff under that section (7). In consequence of money not being liable to be taken in execution, it was doubtful whether a purchase in the name of a wife or child was within the evil intended to be remedied by the statute 13 Eliz. c. 5; for it was said the debtor might have given the money to the parties intended to be benefited in order to enable them to purchase the estate for themselves(A). But as money, bank notes, cheques, &c. may now be taken in execution, it follows as a natural consequence that a purchase in the name of a wife or child cannot be sup- ported against creditors. In Barrack v. M‘Culloch(1), Wood, V.-C., said: “ The statute 1 & 2 Vict. c. 110 expressly enacts, that money and bank notes shall be capable of being taken in execution, and therefore I ap- prehend that a person largely indebted could not pass over to a child either money or bank notes for the pur- pose of making a purchase, or if he did, that his cre- ditors might follow the money. which he had so handed over covertly as against them into the land, or stock, or whatever else has been purchased therewith, and any voluntary gift of it would be void against them.” (i) Stokoe v. Cowan, 29 Beavan, 637; 30 L. J., Ch. 882, S. C.; see Law v. The Indisputable Life Assurance Society, 1 K. & J. 223; Robinson v. M‘ Creight, 25 Beavan, 272. (hk) Fletcher vy. Sedley, 2 Vernon, 490; Gluister v. Hemer, 8 Vesey, 199; Houghton v. Tate, 3 Y.& J. 486; Kingdon v. Bridges, 2 Vernon, 67; Procter v. Warren, Viner’s Abr., Fraud (Q a), 2; Select Cases, tem. Lord King, 78; but see Christ’s Hospital v. Budgin, 2 Vernon, 684; Stileman v. Ashdown, 2 Atk. 477, 481; Reddington v. Redding- ton, 8 Ridgw. P.C. 176; Peacock v. Monk, 1 Vesey, 127, 130. (1) 3K. & J. 110,117; 26 L. J., Ch. 105, S. C.; see also Sims v. Thomas, 12 A. & E, 586; Drew v. Martin, 2H. & M.130; Sugden, V. & P. 14th edit. 706. 120 FRAUDULENT CONVEYANCES. In Barton v. Vanheythuysen(m), a man contracted for the purchase of an estate, and afterwards directed it to be conveyed to trustees for the benefit of his wife and children. The transaction was held to be fraudulent and void against creditors; it not being an original purchase for the benefit of the volunteers, but a conveyance of the purchaser’s equitable interest to them. The statute 1 & 2 Vict. c. 110 was not re- ferred to. As money, stock, &c. may now be taken in execu- tion, it follows that purchase-money received upon a sale cannot be settled in such a way as to defeat the just rights of creditors. And the rule is the same, although the subject-matter of the sale could not itself have been taken in execution. In French v. French(n), a trader, being in insolvent circumstances, agreed to sell his business and stock in trade, in consideration of an annuity to himself during the joint lives of himself and his wife, and of a contingent annuity to the wife, if she survived him. After the trader’s death, a cre- ditor’s suit was instituted for the administration of his assets, and for the purpose of setting aside the annuity given to the widow on the ground that it was voluntary and fraudulent. The Lord Chancellor said: “ I consider the annuity so payable to the widow just in the same light as. if it was taken and applied to the husband’s own purposes, and abstracted from his creditors; and in my opinion it amounts to a voluntary settlement in favour of his wife. It formed clearly a portion of the consideration which, instead of keeping himself for the benefit of his creditors, he chose to keep for the benefit (m) 11 Hare, 126. (m) 6 De G., M. & G. 95; 25 L. J., Ch. 612, 8. 6 PROPERTY NOT LIABLE TO EXECUTION. 121 of his wife. The law is clear that such a transaction is fraudulent as against creditors, that is to say, it is an attempt to abstract from creditors what they are entitled to look to for payment of their debts”(o). It ap- peared from one of the exhibits in this case that the consideration for the annuity to the wife was the name and goodwill of the husband’s business, things which cannot be taken in execution; but as the settlement abstracted money, which can now be seized, from the creditors, it was looked upon as fraudulent and void against them. In Neale v. Day(p), an attorney, being in insolvent circumstances, assigned the good- will of his business in consideration of a sum of money paid down, and of an annuity secured by bond to be paid to his wife for life, with remainder to himself for life. The Vice-Chancellor, following French v. French, decided that the annuity was void against creditors, and said that it was very questionable whether, upon the older authorities alone, such a transaction would not be a fraud within the direct meaning of the statute 13 Eliz. ¢. 5. Creditors cannot follow money which has been volun- tarily expended by a husband on his wife’s estate in redeeming the land tax, in the enfranchisement of copy- holds, or in improvements, although the husband was insolvent at the time the expenditure was made (4). (0) 6 De G., M. & G. 102. (p) 28 L. J., Ch. 45. (q) Sugden, V. & P. 707, 14th edit.; Campion v. Cotton, 17 Ves. 264; Burrough’s case, 17 Ves. 267; see Hamer vy. Tilsey, 1 Johnson, 486; 29 L. J., Ch. 32, 8. C.; Stepney v. Biddulph, 13 W. RB. 576. 122 FRAUDULENT CONVEYANCES. CHAPTER XV. Who may take advantage of the Statute 13 Eliz. e. 5. THE statute 13 Eliz. c. 5, expressly declares a fraudu- lent gift or alienation to be void only against those per- sons, their heirs, successors, executors, administrators and assigns, whose actions, suits, debts, &c., are or may be in anywise disturbed, hindered or delayed. As a voluntary settlement is good against the party executing it and those who claim under him, the property com- prised in it which remains after satisfying the settlor’s creditors will be bound. by the trusts of the settle- ment (a). The executors and administrators of the voluntary settlor will be bound by the settlement (); and so will his heir, who will have no claim to contribution from the voluntary grantee, if an execution creditor realizes his debt solely out of the descended lands(c). In Packman’s case (d), it was held that a bond fide sale by an administrator could not be impeached, although it was made pending a citation by the next of kin to have the administration repealed, and with the intent (a) Ex parte Bell, 1 Gl. & Ja. 282; Curtis v. Price, 12 Ves. 103; Ramm v. Cartwright, 2 Freem. 183; see Shaw v. Jeffrey, 13 Moore, P. C. C. 482. (6) Hawes v. Leader, Cro. Jac. 270; Luff v. Horner, 3 F. & F. 480. (c) Sir W. Harbert’s case, 3 Rep. 12 b; Moore, 169, S. C.; see Ker v. Ker, 3 Ir. Eq. Rep. 489. (d) 6 Rep. 18 b. PARTIES GRIEVED WITHIN 13 Exiz. c. 5. 123 to defeat the plaintiff in the spiritual court of the effect of his suit. And it was said that even if the assign- ment had been fraudulent, it would have remained good against a second administrator; although it would have been void by statute 13 Eliz. c. 5, against creditors. A voluntary settlement which hinders or delays cre- ditors cannot be sustained against the assignees in bankruptcy or insolvency of the settlor, for the assig- nees represent the creditors for whose benefit the statute was made (e). A voluntary settlement will be supported against those creditors who have been privy or have assented to the execution of it( f). Thus in Oliver v. King(q), two brothers, John King and James King, were in partnership as brewers. James purchased John’s share, and gave a bond to secure the unpaid purchase-money. Afterwards, James King being ill, upon the advice of John King, executed a voluntary settlement of part of his leasehold estates in favour of his (James King’s) two sons. The whole transaction was carried out with. the concurrence, and through the instrumentality of John King; and there was no evidence that he acted in ignorance of any fact material for him to know, or that any misrepresentation was made to him. No steps were taken to impeach the settlement during John King’s lifetime; but, on the contrary, he took part with (e) Doe d. Grimsby v. Ball, 11M. & W. 531; Robinson v. M‘Don- nell, 2B. & Ald. 134; Tyrrell v. Hope, 2 Atk. 562; see Dacia ys Snell, 6 Jur., N.S. 1184; 3 L. T., N.S. 394, S.C. (7) Steel v. Brown, 1 Taunton, 881; Bamford v. Brown, 2 T. R. 594, n. Creditors who have been in any way privy to a fraudulent assignment cannot set it up as an act of bankruptcy. Ew parte Alsop, 1DeG., F. & J. 289; Lx parte Stray, 2 L. R. Ch. App. 374. (g) 8DeG., M. & G. 110; 25 L. J., Eq. 427, 8. C. G2 124 FRAUDULENT CONVEYANCES. the grantees under the settlement in transactions which proceeded on the assumption of its validity. After John King’s death his executors filed a bill to set aside the deed as voluntary and fraudulent against their tes- tator, and the other creditors of James King; but it was held that the executors were without remedy in consequence of John King’s concurrence in the deed, and of the part he had taken in procuring it to be executed. A voluntary deed is also good against strangers, The sheriff or other officer executing process without proof of the legal authority under which he is acting is a stranger within the meaning of the rule. To prove his authority it is not sufficient to produce the writ of execution, but the judgment obtained by the execution creditor must also be proved (h). “It is an established rule of law,” said Jervis, C. J., in White v. Morris (7), “that the mere production of the writ and nothing more will not enable the sheriff to show that a deed, good as against all except creditors, is fraudulent and void. He must show that he represents a creditor. For this purpose the bare production of the writ is not enough. The writ merely authorizes and directs the sheriff to do a certain act, and his indorsement or return thereon is a mere statement that he has done as he was directed. There is no statement that a judg- ment exists; but only that somebody says that a judg- ment has been obtained. I think that the production of the writ in this case was not evidence that a, judg- ment existed.” (h) White v. Morris, 11 C. B. 1015; Bessey y. Windham, 6 Q. B. 166, contra. (i) 11 ©. B. 1028, 1029, PARTIES GRIEVED WITHIN 13 ELiz. c. 5. 125° The voluntary assignor of goods and chattels is bound by the assignment only when the property in the articles delivered is actually transferred to the assignee. If he can show that no real assignment ever took place, and that the whole transaction was a mere contrivance got up to delay creditors, he may recover back his goods from the assignee in an action of trover. In Bowes v. Foster (k), the plaintiff, being embarrassed and in fear of an execution against his goods, agreed with the de- fendant that there should be a pretended sale of the goods to him. A forged invoice and receipt having been made out, possession of the goods was delivered to the defendant, and he afterwards sold them as his own. It was held, in an action of trover for the goods bought by the plaintiff, that no property in the goods passed to the defendant ; and that the plaintiff might show that no money was in fact paid, and that the whole transac- tion was not a real but a fictitious sale. And although as a general rule equity will not inter- fere to assist a person in recovering back property which has been assigned to another for an illegal purpose, nevertheless this rule does not apply where the illegal purpose has not been carried into execution, and no- thing has been done under the deed of assignment (). Therefore, if a man assigns his property to a trustee with the view of defeating his creditors, and after- wards compounds with them or discharges their claims, equity will compel the trustee to restore the property to the assignor. In Symes v. Hughes(m), the plaintiff (k) 2H. & N. 779; see Cheesman v. Exall, 6 Exch. 341. (1) Davies v. Otty, 35 Beav. 208; see Coutwas v. Swan, 18 W. R. 746. (m) 9. R., Eq. 475. 126 FRAUDULENT CONVEYANCES. being embarrassed assigned certain leasehold property to a trustee in order to defeat his creditors. Shortly afterwards he was adjudicated a bankrupt, but obtained the sanction of the creditors under section 110 of the Bankrupt Act, 1861, to an arrangement by which his estate and effects were revested in him. At the same time he covenanted to prosecute a suit for the recovery of the assigned property, and to pay a compo- sition to his creditors, in case the suit should terminate successfully. It was held, that the plaintiff was entitled to have the property re-conveyed to him by the defen- dant, who claimed through the original assignee and trustee, ( 127 ) CHAPTER XVI. As to how far the Property comprised in a Fraudulent Conveyance is Assets in the hands of the Grantor’s Heir or Executor for the Payment of Debts—and herein of Donationes mortis causa. —~— Sect. 1.—As to Real Property. As the statute 13 Eliz. c. 5, declares that a fraudulent conveyance shall be void as against creditors and others, whose executions, &c. are delayed, hindered, or de- frauded, a voluntary conveyance, when it is declared fraudulent, is treated with respect to the parties injured as if it had never been made. Thus, where to a writ of formedon the defendant pleaded non tenure, and upon issue joined it was found that before the writ purchased the defendant enfeoffed divers persons to the intent to defraud them which had cause of action against the same lands, and notwith- standing he took the profits, a verdict was given for the demandant, for the feoffment was void by 13 Eliz. c.5(a). And so it is said in the Lex Pretoria(b): «Where a man makes a voluntary conveyance with power of revocation, and afterwards contracts bond or other debts, which only bind the person, such creditors (a) Leonard v. Bacon, Cro. Eliz. 234. (6) Cited in Roberts on Fraudulent Conveyances, 591. 128 FRAUDULENT CONVEYANCES, suing the debtor to judgment shall extend the lands in the hands of the voluntary conveyor, and make a title in an elegit to the lands in his hands notwithstanding such voluntary conveyance.” It is for this reason that the property comprised in a covinous conveyance is assets in the hands of the heir or devisee for the payment of the debts of the ancestor or testator. Ifthe heir plead riens per descent in an action brought against him by the creditors of the an- cestor, he cannot support his plea by setting up a volun- tary assurance which is proved to have been made by the ancestor for the purpose of defrauding creditors (c). In O'Connor v. Bernard(d), Roger O’Connor being indebted to Arthur O’Connor by specialty and simple contract, and being sued in equity for the amount, exe- cuted in 1816 a voluntary deed whereby he conveyed certain real estates to W. O’Connor and her heirs. In 1817 judgment was given in favour of Arthur O’Con- nor for payment of the money due to him, and there- upon a sequestration issued. The sequestrators entered into possession of the lands comprised in the deed of 1816, and so continued until the death of Roger O’Connor in 1834. In 1826 W. O’Connor sold the lands to the defendant, who had full notice of all the circumstances under which the deed of 1816 was exe- cuted. In 1833 the statute 3 & 4 Will. 4, c. 104, which makes real estate assets for the payment of sim- ple contract debts, was passed. A bill having been filed by Arthur O’Connor to have the deed of 1816, (c) Apharry v. Bodingham, Cro. Eliz. 350; Fermor’s case, 3 Rep. 78 b; Dyer, 295 b, pl. 16; Humberton v. Howgil, Hobart, 72; Sagittary v. Hide, 2 Vernon, 44; Sheppard’s Touchstone, 66. (d) 2 Jones, 654. PROPERTY FRAUDULENTLY ASSIGNED IS ASSETS. 129 and also the conveyance to the defendant declared fraudulent and void, the court set both instruments aside, and held that Roger O’Connor died seised of the lands intended to be conveyed by them. Consequently these lands were held to be assets for the payment not only of specialty, but also of simple contract debts. It follows from what has been said, that neither the heir nor devisee can make any voluntary disposition of the descended or devised property which has the effect of defeating the creditors of the ancestor or testator (e). A devise by the heir of the descended property is within the Statutes of Fraudulent Devises(f), and therefore void against the ancestor’s creditors (g). Before the Statutes of Fraudulent Devises(h), the (e) Gooch’s case, 5 Rep. 60; Dyer, 149 a, note 80; Apharry v. Bodingham, Cro. Eliz. 350. (f) 3 & 4 Will. & M. c. 14, repealed and re-enacted by 11 Geo. 4 & 1 Will. 4, c. 47. These statutes gave creditors by specialty in which the heirs were bound the same rights against the devisee of their debtor that they formerly had against his heir. “Before 3 & 4 Will. & M. ce. 14, if the debtor devised away his land, so that nothing descended, the right of the creditor was defeated. The heir was not liable, because by the act of the debtor in devising away his land the heir was enabled to plead riens per descent. The devisee was not liable, for the bond or other specialty in no way affected him. To remedy this evil the legislature interposed, by putting the creditor in all cases in the same situation as if no mill had been made; it declared all wills void as against him.’? Per curiam in Hunting v. Sheldrake, 9M. & W. 256, p- 263. The remedy of the creditor under 3 & 4 Will. & M. c. 14, was confined to actions of debt. By the later act his remedy is extended to actions of covenant. For further information on the Statutes of Frau- dulent Devises, see Williams on Real Assets; Shelford on the Real Property Statutes; and Chitty’s Collection of the Statutes. (g) Kinaston v. Clarke, 2 Atk. 205; 2 Cruise Dig. 352, 8. C.; Tyn- dale v. Warre, Jacob, 212, 218. (A) See note (/), supra. Gb 130 FRAUDULENT CONVEYANCES. ancestor’s creditors had no remedy against the heir if he disposed of the assets for valuable consideration before action brought, though in equity he was respon- sible for the value of the land aliened (7). By section 6 of 11 Geo. 4 & 1 Will. 4, c. 47 (A), it is enacted, that in all cases where any heir at law shall be liable to pay the debts or perform the covenants of his ancestors, in regard of any lands, tenements, or hereditaments de- scended to him, and shall sell, alien, or make over the same, before any action brought or process sued out against him, such heir at law shall be answerable for such debt or debts, or covenants, in an action or actions of debt or covenant, to the value of the said lands so by him sold, aliened, or made over, in which cases all creditors shall be preferred as in actions against exe- cutors and administrators; and such execution shall be taken out upon any judgment or judgments so obtained against such heir, to the value of the said lands, as if the same were his own proper debt or debts; saving that the lands, tenements and hereditaments, Jond fide aliened before the action brought, shall not be liable to such execution. Section 8 of the same statute (/) makes devisees liable and chargeable in the same manner as heirs at law, notwithstanding the lands, tenements and hereditaments devised to them shall be aliened before action brought. A marriage settlement executed by the heir or de- (i) Kinaston v. Clarke, 2 Atk. 204; Coleman v. Winch, 1 P. Wms. 777. (4) This section is a re-enactment, with some slight alterations, of, section 5 of 8 & 4 Will. & M.c. 14. (2) This is a re-enactment of 3 & 4 Will. & M.c. 14, s. 7. PROPERTY FRAUDULENTLY ASSIGNED IS ASSETS. 131 visee of the descended or devised lands will prevent them from being taken in execution(m); but a mere assignment to new trustees by devisees in trust will not, otherwise “a very easy method of evading the statute and protecting the land would always be open, and a renunciation by the trustees to whom the legal estate is devised, and a conveyance of it to new trustees would In every case render the liability of the devisee only a personal one” (n). Where an equitable interest only is aliened for valuable consideration before action brought, this will not prevent a judgment creditor from seizing the legal estate; though the courts of equity will, upon application oe made to them, prevent the equitable interest so aliened from being affected by the execu- tion (0). The foregoing remarks upon the Statutes of Fraudu- lent Devises apply with equal force since 3 & 4 Will. 4, c. 104, which makes the real estates of deceased persons liable to simple contract debts; because debts of this class are not made by the act a specific charge or lien on the real estates of the debtor any more than specialty debts were before. Lands, therefore, which are bond Jide aliened by the heir or devisee before action brought (m) Spackman v. Timbrell, 8 Simon, 253; Richardson v. Horton, 7 Beav. 112; Matthews v. Jones, 2 Anstr. 506; see Higgins v. Shan, 2 Dr. & War. 356; Hynes v. Redington, 10 Ir. Ch. Rep. 206, 207; Collyer v. Finch, 5 H. of L. 905, 923; Ball v. Harris, 4 M. & C. 264; Williams vy. Massey, 15 Ir. Ch. Rep. 47; Barrow v. Griffith, 13 W. R. 41; Bateman v. Bateman, 1 Eq. Ca. Abr. 149, (2) Per Lord Chelmsford in Coope v. Cresswell, 2 L. R., Ch. 112, 122; 2L. R., Eq. 106, 8. C. (0) Coope v. Cresswell, 2 L. R., Ch. 112, 122; 2 L.R., Eq. 106, 8. C; Ex parte Baine,1M., D. & De G. 492; but see Carter vy. Sanders, 2 Drew. 248, 256; Coope v. Cressnell, supra, when before the Vice- Chancellor; Pimm vy. Insall, 1 Mac. & Gor. 448; 7 Hare, 487, 8. C, 132 FRAUDULENT CONVEYANCES. cannot be taken in execution by simple contract cre- ditors ( p). Equity will grant an injunction at the suit of the creditors of the ancestor or devisor to prevent a pur- chaser of the descended or devised estates from paying over the purchase-money to the heir or devisee, if there is danger of such money being lost or misapplied (¢). As the heir or devisee takes an interest in the de- scended or devised estates only so far as they are not wanted for the payment of the ancestor’s or testator’s debts, even the simple contract creditors of a deceased person will be allowed priority over the judgment cre- ditors of his heir or devisee (7). The heir or devisee have, like an executor, the right of retaining their own debts out of the assets which have descended or been devised to them before paying other creditors of equal degree. They may also retain the debt of their trustee or cestui que trust; and if the devisee happens to be the executor of a deceased creditor he may retain the debt due to his testator (s). But in Bain v. Sadler (t), it was held that a devise (p) Spackman y. Timbrell, 8 Simon, 253; Woodgate v. Woodgate, Sugden, V. & P. 656, 14th edit.; Kinderley v. Jervis, 22 Beav. 1; 25 L.J., Eq. 538, S. C.; Jones v. Noyes, 4 Jur., N. 8. 1033; 2 Wms. Exors. 1563, 1564, 6th edit. The purchaser must see that legacies charged on the land are paid, for the statute has not altered his liability in this respect. Horn v. Horn, 28. & 8. 448. (q) Green v. Lowes, 3 Bro. C. C. 217; Matthews v. Jones, 2 Anstr. 506; Sugden on V. & P. 656, 14th edit.; Kerr on Injunctions, 596. (r) Kinderley v. Jervis, 23 Beav.1; 25 L. J., Eq. 5388, 8. C.; De Sorbein v. Bland, 2 De G. & J. 158; Chapman y. Ladbrooke, 4 Esp. 149. (s) Loomes vy. Stotherd, 18. & 8. 458; Player v. Fohall, 1 Russ. 538; 2 Wms. Exors. 973, 6th edit. (@) 12 L. R., Eq. 570. PROPERTY FRAUDULENTLY ASSIGNED IS ASSETS. 133 of real estate to a trustee for the payment of debts does not give him a right to retain a debt due to him from his testator, although the trustee may also be the exe- cutor of the will. It should be remembered, that by 32 & 33 Vict. c. 46 (1st January, 1870), specialty creditors have no longer any priority over simple contract creditors. —>— Sect. 2.—As to Personal Property. Personal property comprised in a settlement which is set aside as fraudulent within the statute 13 Eliz. ¢. 5, will be assets after the settlor’s death in the hands of his executor or administrator for the payment of his debts(w). A person to whom goods and chattels have been assigned for the purpose of defrauding creditors is liable to be charged as executor in his own wrong, if he disposes of the property after the assignor’s death (v). Where a sale by an executor is presumably made in discharge of his duty to administer his testator’s pro- perty, a purchaser from him is not bound to see to the application of the purchase-money(w); but where there (v) Shears vy. Rogers, 3 B. & Ad. 362; Hue v. French, 26 L. J., Ch. 817; Richards v. James, 2 L.R., Q. B. 285, 291; Roberts on Voluntary Conveyances, 595. (vw) Edwards v. Harben, 2 T. R. 587; Hawes y. Leader, Cro. Jac. 271. (w) Haynes v. Forshaw, 11 Hare, 93, 99; Scott v. Tyler, 2 Dickens, 724; 2 Bro. C. C. 431, 8. C.; Walker v. Taylor, 8 Jur., N.S. 681; Bonney v. Ridgard, 1 Cox, 145; Andrew v. Wrigley, 4 Bro. C. C. 125, 187; Cubbidge v. Boatwright, 1 Russ. 549; Collinson v. Lister, 7DeG., M. & G. 634; Vane v. Rigden, 5 L. R., Ch. 663; Hill v. Simpson, 7 Ves. 169; Keane v. Roberts, 4 Madd. 357; Collingwood v. Russell, 34 L. J., Ch. 22; Farhall v. Farhall, 7 L. R., Ch. 123; 12 L. R., Eq. 98, 8. C.; see Coles v. Miles, 10 Hare, 179, 134 FRAUDULENT CONVEYANCES. are circumstances amounting to fraud or to a breach of trust, as if the sale was at an undervalue (2), or the purchaser knew that it was made for the executor’s own private purposes, then the assets may be followed by the testator’s creditors (y). Where a legacy has been paid or delivered to a legatee, a purchaser from him cannot be called upon to pay any portion of a debt subsequently established against the testator’s estate(z). In Dilhes v. Broad- mead (a), assets, consisting of personalty which could be identified, were settled bond fide upon the marriage of a residuary legatee. It was held that the settled property ceased to be liable to subsequently-accruing claims against the testator’s estate, arising from the breach of certain covenants entered into by him during his lifetime; of the existence of which covenants the parties to the settlement had no notice at the time the settlement was made. —~—- Sect. 3.—As to the Position of a voluntary Creditor under an Administration. A voluntary bond or covenant is payable out of the (z) Rice v. Gordon, 11 Beav. 265. (y) Gavin v. Hadden, 3 L, R., Pr. C. 707; Haynes v. Forshan, 11 Hare, 93, 99; Watkins v. Cheek, 2S. & S.199. It has been at law that an executor may sell in consideration of his own private debt, if there is no fraud. Doe v. Fallows, 2 C. & J. 481; 2 Tyrw. 460, S. C; Whale v. Booth, 4 T. R. 625, note. (z) Noble v. Brett, 24 Beay. 499, 512. (a) 2 Giff. 118; 2De G., F. & J. 566, S.C; Spackman v. Timbrell, 8 Simon, 253, 260; Ward v. Ward, 4 Ir. Ch. Rep. 415; Williams v. Massey, 15 Ir. Ch. Rep. 47, 66; see 22 & 23 Vict. c. 35, s, 29. PROPERTY FRAUDULENTLY ASSIGNED IS ASSETS. 135 assets of the obligor or covenantor (6), although no breach occurred during his lifetime(c). A debt ac- cruing under a voluntary bond or covenant will be paid before legacies; but it will be postponed in favour of creditors for value, although their debts accrued by simple contract (d). The doctrines of equity with respect to the mar- shalling of securities and assets are allowed to prevail in favour of parties claiming under voluntary settlements and other instruments. In Hales y. Cox(e), Thomas Hales executed a voluntary settlement of real estate in trust for his children, and covenanted that the estate should remain to the uses declared and for quiet enjoy- ment. He afterwards mortgaged the same estates, together with some unsettled property, and died. Itwas held that the unsettled estates ought to bear the burden of the mortgage before the settled estates were charged (4) The same principle has been applied to a promissory note given by a testator without consideration. Danson v. Kearton, 3 Sm. & Giff. 186; but see the observations on this case in Lewin on Trusts, Ch. 6, § 9, note. (c) Jenkins v. Bryant, 6 Simon, 601; Watson v. Parker, 6 Beav. 283. If a covenant is broken (though the damages are unliquidated ) the covenantee is a specialty creditor against the covenantor’s estate. In re Dichson, 12 L. R., Eq. 154; Musson v. May, 3 V. & B. 194; Cox y. Barnard, 8 Hare, 310; but see Hervey v. Audland, 14 Simon, 531. (d) Ramsden v. Jackson, 1 Atk. 292; Drakeford v. Wilkes, 3 Atk. 540; Jones vy. Powell, 1 Eq. Abr. 84, pl. 2; Pairebeard v. Bowers, 2 Vernon, 202; Pr. Ch. 17, 8. C.; Patch v. Shore, 2D. & 8.589; Dening v. Ware, 22 Beay. 188; Garrard v. Lord Dinorben, 5 Hare, 215; Cox y. Barnard, 8 Hare, 310; 2 Wms. Exors. 949, 6th edit.; and see Hdwards y. Edwards, 2 Cr. & M. 612; 4 Tyrrw. 438, 8. C. Voluntary creditors are postponed to creditors for value in bankruptcy. Gardner y. Shannon, 2 Sch. & Lef. 228; Ha parte Spurrier, Mont. 246.. (e) 82 Beay. 118; see Ker v, Ker, 3 Ir. R. Eq. 489; Anstey v. New- man, 39 L. J., Ch. 769, 136 FRAUDULENT CONVEYANCES. with it; and that the amount payable by the settled estates towards the mortgage constituted a debt under the covenant for quiet enjoyment, which was payable out of the settlor’s assets in preference to legatees, although after creditors for value. And in Lomas y. Wright(f), it was held that creditors by specialty, although volunteers, were entitled, as against devisees, to stand in the place of ‘mortgagees who had ex- hausted the whole of the fund provided by the testator for the payment of his debts. The voluntary assignee of a debt is not a creditor of the original debtor, and therefore cannot maintain a suit for the administration of the debtor’s estate after his decease(g). But an assignee for value of an equi- table interest in a sum of money payable under a volun- tary bond is entitled to claim as a specialty creditor for value against the assets of the obligor (/). In Tanner v. Byne(7), a husband made a postnup- tial settlement of 4,000/. in favour of his wife and children, and then, in consideration of the 4,000/. ex- pressed to have been lent to him by the trustees of the settlement, made a mortgage to them of real estate to secure that sum, and covenanted to repay it. The hus- band never, in fact, paid the 4,000/. to the trustees; but it was held that they were, notwithstanding, entitled to rank as specialty creditors for value against his estate, (f) 2M. & K. 769; and see Boazman vy. Johnston, 3 Sim. 377; Mills vy. Eden, 10 Mod. 487; 2 Eq. Ca. Abr. 251, S. C; Sneed v. Cul- pepper, T Viner’s Abridg. 52, pl. 7; 2 Eq. Ca. Abr. 255, S. C.; and Haylock v. Robotham, cited in 1 Seton on Decrees, 315, 3rd edit., and in a note to Dolphin v. Aylward, 4 L. R., H. L. 494, (g) Sewell v. Moaxsy, 2 Sim., N. 8. 189. (h) Payne v. Mortimer, 4 De G. & J. 447. (i) 1 Simon, 160. PROPERTY FRAUDULENTLY ASSIGNED IS ASSETS. 137 and that the transaction was substantially the same as if the 4,0007. had been actually paid by the husband, and then had been returned to him by way of loan. As to whether a voluntary bond which has been lost can be established against the obligor and his repre- sentatives, see 3 Jarman & Bythewood’s Conveyancing, 392, title Bond. —— Sect. 4.—Donationes Mortis Causé. A donatio mortis causé is a species of voluntary gift, which it is desirable to notice before concluding this chapter. A few short remarks in this place will suffice, as the subject is fully considered in the works of Mr. Roper, Jarman, and other writers. A donatio mortis causé is a voluntary gift of personal property made by a man in contemplation of the con- ceived approach of death(j). It is revocable during the donoyr’s lifetime, and will be void if he recover from his then existing disorder(&). The donor must part with all dominion over the property, and actually de- liver the gift into the hands of the donee or of the donee’s agent (/). If actual delivery is impossible it will be sufficient to assign the means of coming at or of making use of the thing transferred. Therefore the delivery of the key of a warehouse will pass the goods which are deposited in it(m). It was at one time con- sidered that there could be no good donatio mortis causd (j/) Duffield v. Elwes, 1 Bligh, N. 8S. 497, 530, per Lord Eldon; Lawson v. Lawson, 1 P. W. 441; Miller vy. Miller, 3 P. W. 357. (k) 1 Wms. Exors. 726, 6th edit.; 1 Roper on Legacies, 4, 4th edit. (2) 1 Wms. Exors. 728, 729, 6th edit. (m) Ward v. Turner, 2 Ves. sen. 431. 138 FRAUDULENT CONVEYANCES. of property which does not pass by delivery; and con- sequently that a gift of a policy of assurance, negociable instrument payable to order, or the like, was invalid (n). Now, however, it is held that where there is an actual transfer of a bond, policy, or other written security, or of the title deeds relating to property, this will create a trust in favour of the donee, which he may enforce in equity against the executors of the donor (0). There can be no good donatio mortis causdé where no property passes to the donee(p). Therefore the de- livery of the book of a depositor in a savings’ bank is not a sufficient donation of the money deposited (q); and the same has been held of a delivery of receipts for South Sea Annuities (7). A donatio mortis causé may be proved by the evi- dence of the donee himself(s); but as gifts of this nature open a wide door to fraud, they will not be supported unless the fairness of the transaction is made out by the clearest evidence (f). A donatio mortis causé differs from a legacy in this respect: that it need not be proved in the Ecclesiastical Court; that it cannot be revoked by the will or codicil of the donor; and that no assent on the part of the per- sonal representative is necessary to perfect the gift. The (n) 1 Wms. Exors. 733, 6th edit. (0) Roberts on Equity, 156, 2nd edit. (p) 1 Wms. Exors. 732, 6th edit. (q) M'Gonnell v. Murray, 3 Law Rep., Ir. Eq. 460. (7) Ward v. Turner, 2 Ves, sen. 431; but see Moore v. Darton, 20 L. J., Eq. 626; 4 De G. & 8.517, 5. 6 (8) MGonnell v. Murray, supra; Hayslep v. Gayner, 1 A, & E. 162. (t) Per Lord Chelmsford, in Cosnahan v. Grice, 15 Moo. P. C. 215, 223. DONATIONES MORTIS CAUSA. 139 reason of this is that the donee claims not under the will, but under a gift inter vivos completed during the lifetime of the donor (2). A donatio mortis causé so far resembles a legacy that it is liable to legacy duty, may be made to the donor’s wife, and may be revoked by him during his life. It is, moreover, like a legacy, subject to the debts of donor in case of his assets proving insufficient (x), (w) 1 Wms. Exors. 734, 6th edit, (2) 1 Wms, Exors, 735, 6th edit, 140 FRAUDULENT CONVEYANCES. CHAPTER XVII. Of the Provisions in the Bankrupt Acts respecting Voluntary and Fraudulent Conveyances and Assign- ments. By the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, s. 6 (a), it is enacted, that “ a single creditor, or two or more creditors if the debt due to such single creditor, or the aggregate amount of debts due to such several creditors, from any debtor, amount to a sum of not less than 50/., may present a petition to the court, praying that the debtor be adjudged a bankrupt, and alleging as the ground for such adjudication any one or more of the following acts or defaults, hereinafter deemed to be and included under the expression ‘ acts of bank- ruptey’ (d): (1) That the debtor has, in England or elsewhere, made a conveyance or assignment of his pro- perty to a trustee or trustees for the benefit of his creditors generally : (2) That the debtor has, in England or elsewhere, made a fraudulent conveyance, gift, delivery, or transfer of his property or of any part thereof (c): (a) The act does not apply to Scotland or Ireland, except where it is otherwise expressly provided. (4) Section 11 defines what is to be deemed the commencement of bankruptcy. This section is set out infra. (c) A deed may be admitted in evidence to prove an act of bank- ruptcy although not stamped. Ponsford v. Waiton, 3 L. Ri, C. P. FRAUDULENT CONVEYANCES IN BANKRUPTCY. 141 (3) That the debtor has, with intent to defeat or delay his creditors, done any of the following things, namely, departed out of England, or being out of England remained out of England; or being a trader departed from his dwelling-house, or otherwise absented himself; or began to keep house; or suffered himself to be outlawed : (4) That the debtor has filed in the prescribed manner in the court a declaration admitting his inability to pay his debts (d): (5) That execution issued against the debtor on any legal process for the purpose of obtaining pay- ment of not less than 50/. has in the case of a trader been levied by seizure and sale of his goods (e): (6) That the creditor presenting the petition has served in the prescribed manner on the debtor a debtor’s summons requiring the debtor to pay a sum due, of an amount not less than 50/., and the debtor being a trader has for the space of seven days, or not being a trader has for the space of three weeks succeeding the service of such summons, neglected to pay such sum, or to secure or compound for the same. But it is provided that no person shall be adjudged a bankrupt on any of the above grounds, unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of 167; Ee parte Wensley, 1DeG., J. & S. 273; Ex parte Squire, 4 L. R., Ch. 47, which overruled Hx parte Potter, 34 L. J., Bank. 46. (d@) This sub-section is a re-enactment of section 72 of the Act of 1861. (€) This sub-section, coupled with section 87, corresponds with sec- tion 73 of the Act of 1861. 142 FRAUDULENT CONVEYANCES. the petition for adjudication; moreover, the debt of the petitioning creditor must be a liquidated sum due at law or in equity, and must not be a secured debt, unless the petitioner state in his petition that he will be ready to give up such security for the benefit of the creditors in the event-of the debtor being adjudicated a bank- rupt, or unless the petitioner is willing to give an esti- mate of the value of his security, in which latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him after deducting the value so estimated, but he shall, on an application being made by the trustee within the pre- scribed time after the date of adjudication, give up his security to such trustee for the benefit of the creditors upon payment of such estimated value.” The foregoing enactment applies both to traders and non-traders, except where the former are specially men- tioned. The corresponding sections of the repealed acts relating to fraudulent conveyances are the 67th section of 12 & 13 Vict. c. 106 (the Bankrupt Law Consolidation Act, 1849), which applied to traders only, and the 70th section of 24 & 25 Vict. c. 134 (the Bank- ruptcy Act, 1861), which applied to non-traders. In the notes of Mr. J. W. Smith to Twyne’s case (f ) three rules are stated, by reference to which it may be determined how far an assignment is fraudulent and an act of bankruptcy under the Bankrupt Act, although it may happen to be unimpeachable by creditors under the statute 13 Eliz. c.5. These rules (slightly modified to suit the recent changes in the bankrupt law) are as follows :— (Ff) 1 Smith’s Leading Cases, 20, 6th edit.; and see the judgment of Parke, B., in Young v. Waud, 8 Exch, 221, 234, FRAUDULENT CONVEYANCES IN BANKRUPTCY. 143 (1) Any transfer, which is fraudulent within the meaning of the statute of Elizabeth, is also fraudulent, and an act of bankruptcy under the Bankrupt Act(g). (2) Any conveyance to a creditor by a debtor of his whole property, or of the whole with an exception merely nominal, in consideration of a bygone and pre- existing debt, though not fraudulent within the statute of Elizabeth, is fraudulent under the Bankrupt — A. ACCOUNT, directed of rents, &c. from lands fraudulently conveyed, 231. ADMINISTRATION, voluntary assignee of debt cannot maintain suit for, 186. position of voluntary creditor under, 134. voluntary creditor is entitled to have securities marshalled, 135. AGREEMENT, between husband and wife supported against creditors, 56—61. between husband and third parties also supported, 62—65. See ANTENUPTIAL AGREEMENT—COMPROMISE. ALIMONY, separation deed valid against creditors if wife entitled to, 74. ANTECEDENT DEBTS, assignment in consideration of, an act of bankruptcy, 143, 144, 151. ANTE-DATING, of deed to deceive creditors is forgery, 82, n. ANTENUPTIAL AGREEMENT, must be in writing to support postnuptial settlement, 31. See POSTNUPTIAL SETTLEMENT, ANTENUPTIAL SETTLEMENT, supported against settlor’s creditors and against purchasers, 9. although not made on settlor’s own marriage, 9. although settlor insolvent at date of execution, 10. unless wife party to the frand, 10, 12. as to agreements in, to settle future. property, 15. enforced although collateral acts not performed, 17. but not for benefit of party making default, 17. or of collateral relations, 17. to whom the marriage consideration extends, 18. not supported if marriage not valid, 9. postnuptial settlement not made, by re-celebration of marriage, 41. See COLLATERAL RELATIONS—MARRIAGE CONSIDERATION. 238 INDEX. APPOINTEE, seo z under power in marriage settlement is within marriage considera- tion, 18. See POWER. ARRANGEMENT, deed of, not an act of bankruptcy, 149. ASSETS, when property comprised in fraudulent settlement is, 127, 133. property appointed by will under general power is, 78, 79. unless appointor is married woman, 79. See EXECUTOR—HEIR. ASSIGNEE, voluntary settlement void against bankrupt’s, 54, 123, 164, 165. of debt for value is creditor of original debtor, 136. takes equities of assignor against previous voidable conveyance, 198. purchasing from voluntary grantee prevails over grantor’s creditors, 67, 78. purchasing from legatee prevails over testator’s creditors, 134. See GRANTEE. ASSIGNMENT (FRAUDULENT). See BankRuprcy—Crown— EXECUTION CREDITOR. ATTAINDER, formerly caused forfeiture of offender’s lands, 112. does not now follow on conviction of treason, 114. B. BANKRUPTCY, fraudulent conveyance is an act of, 140, 141. difference between Bankrupt Act and 13 Eliz. c. 5..142, 143, assignment of all a man’s property an act of, 144. although it was made under pressure, 147. although rights of trade creditors preserved, 147. although debtor never parted with deed, 148. although debtor only a surety, 148. different rule where debtor receives a present advance, 145, 146. or is made bankrupt on his own petition, 144, n. or owes no debts at date of assignment, 53, 150. or where all such debts have been paid, 144, n., 150. mere deed of arrangement, is not an act of, 149. law relating to fraudulent preferences, 151—158. no fraudulent preference where debtor was under pressure, 152. what constitutes pressure, 153, 156, 157. effect of pressure by surety, 155. no preference if payment in pursuance of contract, 157. or in ordinary course of business, 157. or in discharge of lien, 157. INDEX. 239 . BANKRUPTCY—continued. aa unction to restrain dealing with property fraudulently assigned, 158. as to transactions with bankrupt without notice of, 159, 161. as to executions against bankrupt’s goods without ‘notice, 162, what constitutes sufficient notice, 163. as to payments to bankrupt under legal process, 161. voluntary settlements by bankrupt traders made void, 54, 62, 165. covenants by trader to settle future property void, 15, 55, 165. certain acts of a debtor made misdemeanors, 166. trustee in, may exercise powers vested in bankrupt, 80, 81. See LIMITATIONS UNTIL BANKRUPTCY—REPUTED OWNER- SHIP. BANKRUPTCY (LIMITATIONS UNTIL ALIENATION OR), may be made determinable without limitation over, 172. limitation by person to himself until bankruptcy invalid, 168. secus of limitation until alienation, 168,169. settlement on stranger until his bankruptcy valid, 170, 171. so of property received by husband with his wife, 170, 171. effect of grantee’s bankruptcy at date of settlement, 172. construction of clauses contemplating cessio bonorum, 173, 174. contemplating voluntary alienation, 173. contemplating involuntary alienation, 174. specially worded, 172, 175, 177. effect of grantee’s marriage on clause restraining alienation, 175. effect of a general assignment on similar clause, 176. BILLS OF SALE ACT, clauses of, set out in extenso, 90—95. contents of affidavit required by, 97. instruments operating under, must actually transfer property, 98. must be properly stamped, 95. applies only to secret dispositions of property, 95. postnuptial settlements are not within, 94. does not interfere with doctrine of reputed ownership, 95. unregistered postponed to registered bill of sale, 96. instruments rank under, according to date of registration, 96. although possession taken by holder of one instrument, 96. BOND, in substitution for voluntary bond good against creditors, 65. effect of, if lost and without consideration, 137. c. CHAMPERTY. purchase of right to set aside fraudulent conveyance is, 198. CHARITY, voluntary settlement on, not defeasible by subsequent sale, 190. 240 INDEX. . CHILD, : purchase in name of, is within 13 Eliz. c. 5..119, 120. is not within 27 Eliz. c. 4..203, 204. CHOSE IN ACTION, . . assignor of, is reputed owner until notice to debtor, 104, 105, not liable to execution until 1 & 2 Vict. c. 110..117, 118, COLLATERAL RELATIONS, cannot enforce marriage agreement where consideration partial fails, 17. are not within marriage consideration, 18. but may be expressly stipulated for, 18, where such stipulation may be presumed, 18, 19, Mr. Dart’s remarks on this subject examined, 19—26, limitations to, supported after an estate tail, 28. supported where an estate resettled, 28. supported where third party’s consent given, 27. COMPROMISE, will support separation deed against creditors, 76. will support postnuptial settlement against creditors, 62. however matter in dispute may be eventually settled, 64. CONCURRENCE, of third party may support limitations to collaterals, 27. may support settlement against creditors, 63, 64. of husband and wife supplies a valuable consideration, 58. See RESETTLEMENT. CONSIDERATION, settlement supported by small, good against purchaser, 62, 196. postnuptial settlement supported by, good against creditors, 30, | 164, 165. supplied by matter arising after date of settlement, 67—71. may be proved although more appears in the deed, 217. if it fails instrument cannot be set up as voluntary, 217. See MARRIAGE CONSIDERATION. CONSTRUCTION, ' of antenuptial articles made liberally, 30. CONTRACT, vee putea and wife after marriage valid against creditc —61. pense Bashan and third parties valid against his creditc Pa by bankrupt in pursuance of, not fraudulent preferen See ANTENUPTIAL AGREEMENT— MISREPRESENTATION, COPYHOLDS, now liable to execution by 1 & 2 Vict. c. 110..116. are within statute 27 Eliz. c. 4..203. See HERIOT. INDEX. 241 COURT, voluntary settlement with sanction of, defeasible by sale, 188. infants may make postnuptial settlements with sanction of, 41, will grant injunction to protect lands fraudulently assigned, 158. See EQUITY—SPECIFIC PERFORMANCE, COVENANT, : to settle future-acquired property, 15. its operation in law and equity, 16. in marriage settlement good against creditors, 15. contra.as to marriage settlement of traders, 15, 165. by trustees of separation deed is valuable consideration, 72. to pay money out of property at death how construed, 15. CREDITORS, antenuptial settlement supported against, 9, 164, 165. 4 so of postnuptial settlement in pursuance of articles, 30. so of postnuptial settlement supported by valuable considera- tion, 56, 67. whether arrangement was between husband and wife, 56—61. or between husband and strangers, 62—65. antenuptial settlement supported against, although settlor in- solvent, 10. unless wife of settlor party to thefraud, 10, 12. existing, may avoid voluntary settlement which delays them, 41, 43, 47, 49. although debts not payable at date of instrument, 49. although no actual intent to defraud is proved, 43, 45. although settlor not indebted to insolvency, 43. rule where property left unsettled is inconvertible, 45, 46. or is squandered by settlor, 46—49. subsequent, may avoid voluntary settlement if express fraud found, 50, 51. existing and subsequent, share alike when settlement avoided, 52. subsequent, may file bill if existing creditors are unpaid, 52. cannot avoid settlement which provides for payment of debts, 53. or if their debts are secured, 53. who are parties grieved within 13 Eliz. c. 5..122—126. may avoid fraudulent settlement although they are volunteers, 53, 135. a rights of husband’s, saved by Married Women’s Property Act, 55. bond in substitution for voluntary bond good against, 65. ib should all join in suit to defeat fraudulent conveyance, 232, 233. may avoid fraudulent execution of power of appointment, 77. a property appointed by will is assets for payment of, 78, 79. bound by voluntary conveyance to which they are parties, 123. same principle applied in bankruptcy, 123, n. settlement defrauding, is an act of bankruptcy, 143, 144, 151. on voluntary instruments preferred to legatees, 53, 134, 135. but not to creditors for value, 53, 135. entitled to have securities marshalled, 135, position of, under an administration, 134. H.F. M 242 INDEX. CREDITORS—continued. ; voluntary assignees of, cannot maintain administration suits, 136. claiming under trust deed are purchasers within 27 Eliz. c.4..207 by judgment are not purchasers within 27 Eliz. c. 4..211—213. of voluntary settlor cannot enforce contract on purchaser, 216. not relieved against fraudulent assurance until debts established 228, 231. voluntary settlements of copyholds, &c. formerly valid against 116—119. different rule since 1 & 2 Vict. c. 110..116—119. See BANKRUPTCY—EXECUTION— EXECUTION CREDITOR CROWN, : is within the Statutes of Fraudulent Conveyances, 190. may extend lands over which king’s debtor has power of appoint- ment, 81. CROWN (ASSIGNMENT TO DEFEAT), made voluntarily previously to commission of treason void, 111, 112. of lands for value invalid after treason committed, 113. of goods for value valid before conviction, 113. effect of outlawry on voluntary settlement, 114. attainder and forfeiture upon treason or felony abolished, 114, 115. D. DEBT, creditor not relieved against fraudulent assurance without proving, 228. different rule after death of debtor, 231. DEBTS (TRUST FOR PAYMENT OF), affords valuable consideration in separation deed, 72, 73. in voluntary settlement protects it from being fraudulent, 53. enables settlor to exhaust the property, 197 DECLARATION, by mortgagor not receivable to prove advance of money, 209. DEED, : admitted to prove act of bankruptcy without a stamp, 140. See BOND— POSTNUPTIAL SETTLEMENT. DEVISEE. See FRAUDULENT DEVISES—HEIR. DILAPIDATIONS, assignment by parson to defeat action for, is fraudulent, 2. DISTRESS, payment by bankrupt to prevent, not fraudulent preference, 157. whether it is a dealing or transaction with bankrupt, 160. INDEX. 243 DONATIO MORTIS CAUSA, ceremonies requisite to perfect the gift, 137. may be proved by evidence of donee, 138. how it differs from a will, 138. and from a legacy, 139. E. ECCLESIASTIC, al he assignment by, to defeat action for dilapidations is fraudulent, 2. EQUITY, relieves if execution of antenuptial agreement is prevented, 35. relieves against fraudulent assurance if creditor’s debt established, 228; different rule after the death of the debtor, 231. as to whether creditor must proceed to execution, 228—231. relieves voluntary grantee against previous voidable conveyance, 198. will not direct sale of lands fraudulently assigned, 231. nor always direct account of mesne profits, 231, 232. See PARTIES— SPECIFIC PERFORMANCE. ESTATE TAIL, limitations to collaterals after, supported against creditors, 28. ESTOPPEL, binding on debtor but not on execution creditor, 68. EXECUTION, levied without notice of bankruptcy supported against trustee, 162. creditor relieved against fraudulent conveyance without taking out, 228—231. See EQUITY—EXECUTION CREDITOR. EXECUTION (ASSIGNMENTS MADE TO DEFEAT), supported if bond fide and for valuable consideration, 106, 107. whatever becomes of money received on the sale, 110. provisions of Mercantile Law Amendment Act as to, 108. debtor may prefer one execution creditor to another, 108, 109. See EXECUTION. EXECUTION (PROPERTY NOT LIABLE TO), assignment of, not fraudulent within 13 Eliz. c. 5..116. some comprised copyholds, choses in action, money, &c., 116— 119. also purchase in name of wife, &c., 119. also money received on a sale, 120, different rule since 1 & 2 Vict. c. 110. .116—119, comprises money expended on wife’s estate by husband, 121. See EXECUTION. M2 244 INDEX. EXECUTION CREDITOR, not bound by estoppel which binds the debtor, 68. leaving goods in possession of debtor commits a fraud, 82, 103. Sce EXECUTION—POSssESSION—REPUTED OWNERSHIP. EXECUTOR, of settlor bound by voluntary settlement, 122. takes property comprised in fraudulent instrument as assets, 133, 134. . when fraudulent assignee may be charged as, de son tort, 183. as to when a sale by him is valid, 133, 134. may retain his own debt out of the assets, 132. but not out of realty devised to him for payment of debts, 133. See HEIR—LEGATEE. F. FELON, assignment by, to defeat the crown is invalid, 111. : attainder and forfeiture on treason or felony abolished, 114. FIXTURES, meaning of, in Bills of Sale Act, 99. if severed may belong to bankrupt as reputed owner, 102. FORFEITURE, does not now take place upon treason or felony, 114. FORFEITURE CLAUSES, construction of, in both statutes of Elizabeth, 219. lord has action gui tam if defrauded of heriot, 5, 220. in consequence of penalties witness may refuse to answer, 221. who are parties grieved within, 222. in what court penalties imposed by, are recoverable, 222, assignment to defeat penalties in, void by statute, 222. FORGERY, ante-dating deed to defraud creditors is, 82, n. FRAUD, will invalidate a settlement made on marriage, 10, 12. existing creditors delayed by settlement need not prove, 43, 45. secus in case of subsequent creditors, 45, 50. what circumstances are looked upon as indicia of, 82. reservation of dominion over property is badge of, 80. indebtedness no badge of, within 27 Eliz. c. 4..184. ge! ee if execution of antenuptial agreement preventec Y, 30. FRAUDS (STATUTE OF), requires antenuptial agreement to be in writing, 31, does not apply to mutual promises to marry, 31, n. INDEX. 245 FRAUDULENT CONVEYANCE. See BANKRUPTCY—POSTNUP- TIAL SETTLEMENT. FRAUDULENT DEVISES (STATUTES OF), .- devise by heir of descended property is within, 129. — protects heir against ancestor’s creditors after alienation, 129, 130. what is a bond fide alienation, 130, 131. . no alteration in the law made by 3 & 4 Will. 4, c. 104..181. FRAUDULENT PREFERENCE. See BANKRUPTCY. FUTURE-ACQUIRED PROPERTY, cannot be assigned at law, 16. different rule in equity, 16. covenant to settle, when valid against creditors, 14. provisions in Bankrupt Act, 1869..15, 55, 165. . G. GOODWILL, money received on sale of, liable to execution, 120. GRANTEE (VOLUNTARY), takes equities of grantor against previous voidable conveyance, 198. sale by, valid against creditors of voluntary settlor, 67, 69. so of settlement on grantee’s marriage, 67, 134. has a lien for improvements if his estate defeated, 69, 202. cannot restrain grantor from selling under 27 Eliz. c. 4..215. money received on sale under 27 Eliz. c. 4, not paid to, 201. H. HEIR, of settlor is bound by a voluntary settlement, 122. and cannot defeat it by a sale under 27 Eliz. c. 4..199. devise by, is within Statutes of Fraudulent Devises, 129, liability of, after disposing of descended lands, 129, 130. may retain debt due to him by ancestor, 132. cannot defeat ancestor’s creditors by voluntary settlement, 129. creditors of, postponed to those of ancestor, 132. HERIOT, as to assignment by tenant to defeat lord of, 5. lord defrauded of, may have an action qui tam, 220. HUSBAND, not purchaser of his wife’s estate within 27 Eliz. c. 4..214. may make such settlement as court would enforce, 61, 62. same of deed executed on a separation, 74. interest of, under settlement not affected by his misrepresentations, 0. M3 246 INDEX. INDEBTEDNESS, no badge of fraud within 27 Eliz. c. 4..184. how far it is so within 13 Eliz. c. 5..42—44, INDEMNITY, covenant of, is valuable consideration in separation deed, 72. INFANT, may make postnuptial settlement with approbation of court, 41. INJUNCTION, issues if heir or devisee misapply assets, 132. issues to prevent dealings with property fraudulently assigned, 158, voluntary grantees cannot issue, to prevent settlor selling, 215. although suit depending between them and settlor, 216. INQUIRY, directed as to settlor’s circumstances at date of settlement, 53, 217. INSOLVENT, postnuptial settlement delaying creditors void although settlor not, 43, 44, antenuptial settlement by person who is, valid against creditors, 10. unless wife party to the fraud, 10, 12. ISSUE, directed to prove the consideration for a deed, 235. J. JUDGMENT CREDITOR, 3 as to relief given to, against fraudulent assurance, 228—231, is not a purchaser within 27 Eliz. c. 4..211—213. L. LEGATEE, purchaser from, not liable to testator’s debts, 134. LESSEE, at rack rent is a purchaser within 27 Eliz. c. 4..207. LIEN, payment in discharge of, not fraudulent preference, 157. voluntary grantee has, for improvements made by him, 69, 202. LITIGATION, settlement made during, to delay legal process, is void, 106. LORD OF MANOR. See Heriot, » INDEX, 247 M, MAINTENANCE. See CHAMPERTY, MANOR. See HERIOT. MARRIAGE, is not part performance of antenuptial agreement, 33. representations bringing about, must be made good, 36—39. MARRIAGE CONSIDERATION, creditors, &c. cannot impeach settlement supported by, 9, 30, 164, 165, unless husband and wife parties to fraudulent scheme, 10, 12. supports limitations to husband, wife, and issue, 17, 18. although collateral acts left unperformed, 17. does not support limitations to collateral relations, 18. but they may be expressly stipulated for, 18. Mr. Dart’s remarks on this subject examined, 19—27. supports settlement on voluntary grantee’s marriage, 67. supports appointment under a power in marriage settlement, 18. supports settlement by legatee against testator’s creditors, 134. See ANTENUPTIAL SETTLEMENT. : MARRIED WOMAN, entitled to settlement after paying debts contracted when single, 61, 62. Separate property of, liable to debts contracted when single, 13. contra of property appointed under general power, 79. provisions of Married Women’s Property Act, 1870..14, fraud by, will invalidate settlement on her marriage, 10, 12. may in equity contract with her husband, 56. le settlement on, arising out of contract, supported, 56-— voluntary settlement by, defeasible under 27 Eliz. c. 4..191. — stipulate in marriage settlement for collateral relations, 19, purchase in name of, is not within 27 Eliz. c. 4..203, 204. is within 13 Eliz. c. 5..119, 120, MARRIED WOMEN’S PROPERTY ACT, 1870, exonerates husband from wife’s debts contracted before marriage, 14, protects certain voluntary settlements by husband on wife, 55. powers in, not to be exercised in fraud of husband’s creditors, 55. MARSHALLING, doctrine of, applied to creditors under voluntary instruments, 135, 136. MERCANTILE LAW AMENDMENT ACT, protects bond fide purchasers against execution creditors, 108. 248 INDEX. MERCHANT SHIPPING ACT, ’ provisions as to transfers and mortgages of ships, 88, 101. MESNE PROFITS. See Account. MISDEMEANOR, certain acts of bankrupt made, 166. MISREPRESENTATIONS, enforced if they are the inducement to a marriage, 36—39. difference between, and contract in marriage negotiations, 37. not enforced against husband to injury of wife, 40. MONEY, received on sale under 27 Eliz. c. 4, is not settled, 201. advance of, not proved by declarations of mortgagor, 209. not liable to execution till 1 & 2 Vict. c. 110..116, 117. by mere seizure is not property of execution creditor, 118. spent by husband on wife’s estate cannot be followed, 121. expended by voluntary grantee in improvements remains a charge, ” 69, 202. spent in discharging lien, &c., not a fraudulent preference, 157. paid bond side by or to bankrupt, is a protected transaction, 159, 161. MORTGAGEE, is a purchaser pro tanto within 27 Eliz. c. 4..186, 209. leaving deeds with mortgagor defrauds subsequent purchasers, 192. equitable, is purchaser in equity within 27 Eliz. c. 4..210. redeemable by parties claiming under voluntary settlement, 211. See MORTGAGOR, MORTGAGOR, retaining mortgaged property commits no fraud within 13 Eliz. c. 5..86. whether he is reputed owner under Bankrupt Acts, 87, 95, 103. declarations by, not admitted to prove advance of money, 209. See MORTGAGEE. N, NOTICE, ea transactions without, supported in bankruptcy, 159, 16], NOTORIETY, ere only to assignment, although possession unchanged, 89, oO. ORDER AND DISPOSITION. See Rerutep OwneERSHIP. INDEX. 249 OUTLAWRY, forfeiture on, not affected by 33 & 34 Vict. c, 23..114. of settlor does not affect voluntary settlement, 114. P. PART PERFORMANCE, marriage is not, of an antenuptial agreement, 33. PARTIES, to suit not to claim under inconsistent titles, 232. who are parties grieved within 13 Eliz. c. 5..122—126, 222. voluntary grantees may be, to bill for specific performance, 233. all creditors should be, to suit complaining of fraudulent convey- ance, 232, 233. See EQUITY—SPECIFIC PERFORMANCE. PARTNERS, settlement by, which hinders creditors of firm, invalid, 44. . assigning all their property commit an act of bankruptcy, 144, n. shares of, not to be limited over on bankruptcy, 169. may purchase share of bankrupt member of firm, 169. PAYMENT, made bond fide by or to a bankrupt, protected, 159, 161. PENALTY. See FORFEITURE CLAUSES. PERSONAL PROPERTY, is not within statute 27 Eliz. c. 4..203. PETITIONING CREDITOR. See BANKRUPTCY. POLICY OF ASSURANCE, may now be taken in execution, 118. settlement of, under Married Women’s Property Act, 55. husband’s creditors not to be defrauded, 55. POSSESSION, fraud presumed if assignor retains, after assignment, 82. such fraud a question of fact not of law, 84. no fraud presumed where intention consistent with deed, 85, 87. where transaction proved to be bond fide, 85. where transfer of property is notorious, 89, 103. where property not transferable in specie, 88. provisions of Merchant Shipping Acts, 88. deed remaining in settlor’s, may be act of bankruptcy, 148. deeds remaining in mortgagor’s, raises presumption of fraud, 192. POSTNUPTIAL AND VOLUNTARY SETTLEMENT, 13 Eliz. ce. 5 void against creditors if consideration grossly inadequate, 54. void if it delays extsting creditors, 41, 43. although no actual fraud proved, 45, 250 INDEX. POSTNUPTIAL AND VOLUNTARY SETTLEMENT—contd. 13 Eliz. c, 5—continued. void although debts not immediately payable, 49. although debts accrued under voluntary instruments, 53. although settlor solvent at date of execution, 43, 44, void if property not settled is inconvertible, 45, 46. valid if transaction leaves settlor solvent, 46. unless he squanders unsettled property, 46—49. void against subsequent creditors if express fraud found, 50. what is evidence of express fraud, 50, 51. when subsequent creditors may file bill to set aside, 52. if void against existing creditors all creditors let in, 52. not void if payment of debts is secured, 53, 197. by traders avoided by Bankrupt Act, 1869. .54, 165. on wife protected by Married Women’s Property Act, 55. unless made in fraud of husband’s creditors, 55. by infants made with approbation of court valid, 41. not within the Bills of Sale Act, 94. not affected by subsequent outlawry of settlor, 114. when set aside property is part of settlor’s assets, 127, 133. binding on settlor and representatives after paying creditors, 4, 122, binding on creditors who are parties and on strangers, 123, 124. not binding on settlor where fraudulent purpose fails, 125. in such case he may recover back his property, 125. heir cannot defeat his ancestor’s creditors by, 129. not made antenuptial by re-celebration of marriage, 41. of copyholds, money, &c., formerly valid against creditors, 116— 119. different rule since 1 & 2 Vict. c. 110..116—119. made during litigation to defeat process is void, 106—110. made by traitor to defeat crown formerly void, 111—115. 27 Eliz. ¢. 4, void against subsequent purchasers for valuable consideration, 184, 185. although settlement not referred to in purchase deed, 187. although settlement made with sanction of court, 188. although estate settled was married woman’s, 191. although purchased estate is only surrendered, 194. although settlement in favour of crown, 190. different rule in case of charities, 190. void had purchasers only to extent of purchase, 186, 209, 21 who is a purchaser within 27 Eliz. c. 4. .205. not revoked by another voluntary instrument or will, 196. unless settlement contains power of revocation, 197. effect of trust for payment of settlor’s debts, 197. not avoided by a sale by settlor’s heir, 199. money received from purchaser not paid to voluntary grantees, 201. mortgagee leaving deeds with mortgagor defrauds subsequent pur- chasers, 192, INDEX. 251 BORE vee SETTLEMENT IN PURSUANCE OF Ah- ES, stands on same footing as antenuptial settlement, 9, 30. articles must embrace same class of persons as settlement, 30. voluntary, if articles not committed to writing, 31, 32. exception where execution of articles prevented by fraud, 35. where property transferred before marriage to trustees, 34. where marriage brought about by misrepresentation, 36—40. difference between misrepresentation and contract, 37. husband’s interest under, unaffected though marriage induced by his misrepresentations, 40. POSTNUPTIAL SETTLEMENT SUPPORTED BY VALUE, agreements between husband and wife good against creditors, 56— 61 2 between husband and strangers valid against creditors, 56, 62—65. unless fraudulent intent be found, 61. re-settlements between father and son valid against creditors, 65. husband may make such settlement as court would enforce, 62. as to bonds substituted for voluntary bonds, 65. consideration may arise after date of voluntary instrument, 67. as if voluntary grantee improves the estate, 69. or sells it for value, 67. or settles it on marriage, 67. rule where there is fraud, 69. priorities between purchasers from settlor and from voluntary grantee, 71. POWER, . voluntary execution of, void if it delays creditors, 77. unless appointee has sold appointed property, 78. property appointed by will part of appointor’s assets, 78, 79. but not till appointor’s own property exhausted, 79. property appointed by married woman not separate property, 79. trustee in bankruptcy may exercise, under Bankrupt Act, 80. but cannot defeat voluntary settlement under 27 Eliz. c. 4.. 81. vested in king’s debtor, is exercisable by crown, 81. reserving dominion over settled property is fraudulent, 80, 226. effect of giving the power to a stranger, 226. appointee under, in marriage settlement, is within marriage con- sideration, 18. POWER OF REVOCATION (within 27 Eliz. ¢. 4), settlement containing, is void against subsequent purchasers, 224. although settlement madeé for valuable consideration, 224. although power exercisable only by will of settlor, 226. effect of giving the power to a stranger, 226. 252 INDEX. POWER OF REVOCATION (within 27 Eliz. c. 4)—continued. settlement containing, void only to extent of power, 225. void unless power released for value, 225. powers of sale and exchange in settlement are valid, 227. effect of trust for payment of settlor’s debts, 197. See POWER. PRE-EXISTING DEBT, assignment in consideration of, is act of bankruptcy, 143, 144, 151. See BANKRUPTCY. PREFERENCE (FRAUDULENT), law relating to, only applicable in bankruptcy, 108. See BANKRUPTCY. PRESSURE. See BANKRUPTCY. PRIORITIES, between purchasers from settlor and from voluntary grantee, 71. PROCESS, yoluntary settlement during litigation to defeat, is void, 106. payments to bankrupt under coercion of, are valid, 161. PROPERTY, what kind of, is within 27 Eliz. c. 4..203. not liable to execution is not within 13 Eliz. c. 5..116. rule since 1 & 2 Vict. c. 110..116—119. in goods must be transferred to voluntary assignee, 125. or assignor may recover them back, 125. PURCHASE, in name of wife is within statute 13 Eliz. c. 5..119, 120. but is not within statute 27 Eliz. c. 4..208, 204. See PURCHASER. PURCHASE-MONEY, arising on sale under 27 Eliz. c. 4, is not settled, 201. PURCHASER, definition of, within 27 Eliz. c. 4..205, 206. lessee at rack rent is, 207, 208. mortgagee is, to extent of his security, 186, 209. equitable mortgagee is not, at law, 210. judgment creditor is not, 211—213. creditor taking under trust deed is, 207. husband acquiring estate by marital right is not, 214. surrenderee for value is, 194, can avoid voluntary settlement under 27 Eliz. c. 4..184, 185. although settlement not referred to in purchase deed, 187. although settled estate was married woman’s, 191. although settlement made with sanction of court, 188. a a ad into voluntary character of previous instrument, 217, INDEX. 253 PURCHASER—continued. a oe specific performance of contract against settlor, 183, » 216. cannot require voluntary deed to be delivered up, 235. from voluntary grantee prevails over grantor’s creditors, 67—71. from legatee prevails over testator’s creditors, 134. mortgage comprising settled and unsettled property to be dis- charged out of latter, 135. R. RECOVERY, bars remainderman, although uses declared void against cre- ditors, 7. REDEMPTION, voluntary grantee may redeem subsequent mortgagee, 211. REMAINDERMAN. See RECOVERY. REPUTED OWNERSHIP (DOCTRINE OF), Bills of Sale Act does not alter, 95, 96. clauses in Bankrupt Act relating to, 100, 101. no application where true owner demands possession, 102. or where goods left for temporary purpose, 103. or where goods deposited with factors, &c., 103, 104. applies where execution creditor leaves debtor in possession, 103. where mortgagee leaves mortgagor in possession, 103. prevented on assignment of chose in action by notice, 104, 105. RESERVATION, of dominion over property is a badge of frand, 80, 82. RE-SETTLEMENT, limitation to collaterals in, supported against creditors, 28, 65. between husband and wife supported against creditors, 58—61. between father and son supported against creditors, 28, 65. REVOCATION. See POWER OF REVOCATION. S. SALE, not directed of lands in a fraudulent conveyance, 231. not ordered of property of which bankrupt reputed owner, 101. See BILLS OF SALE. SEPARATE USE, , : woman’s property settled to, liable to her debts, 13. provisions of Married Women’s Property Act, 1870..14. distinction between, and property appointed under general power, 79. HLF. N 254 INDEX. SEPARATION DEED, void against creditors unless supported by valuable consideration, 72, 73. valid if husband indemnified against debts of wife, 72, 74. if husband’s debts paid by trustees, 72. if husband releases his marital rights, 72. if wife is entitled to alimony, 74. if made on the compromise of suit, 76. or on withdrawal of indictment, 76. SETTLOR, must himself make the subsequent sale under 27 Eliz. c. 4..199. cannot defeat voluntary instrument except under 27 Eliz. c. 4..122. different rule where no property passes to voluntary grantee, 125. or where fraudulent purpose altogether fails, 125. cannot enforce specific performance against purchaser for value, 215. semble, his creditors are in same position, 216. not presumed to stipulate for collateral relations, 19, 21. SHERIFF, cannot seize goods fraudulently assigned without proving autho- rity, 124, SHIP, transfer of, by bill of sale, valid against creditors, 88. See MERCHANT SHIPPING ACT. SPECIFIC PERFORMANCE, voluntary settlor cannot enforce, against subsequent purchaser, 215. unless there are special circumstances, 215. voluntary settlor’s creditors cannot enforce, against purchaser, 216. but purchaser may enforce, against voluntary settlor, 185, 215. unless there was consideration for the settlement, 217. purchaser may make voluntary grantees parties to bill for, 233. See EQUITY—PARTIES. — STAMP, deed admitted to prove act of bankruptcy without, 140. bill of sale must bear, before copy filed, 95. SUBSTITUTED BOND. See Bop. SURETY, . commits act of bankruptcy by assigning all his property, 148. pressure by, on debtor, prevents preference being fraudulent, 155. SURRENDER, for value ayoids voluntary settlement under 27 Eliz. c. 4..194. INDEX. 255 T. TRAITOR, assignment by, to defeat the crown, is invalid, 111. attainder and forfeiture on treason or felony abolished, 114. TREASON. See TRAITOR. TRUST, of property assigned before marriage may be declared by post- nuptial instrument, 35. See DEBTS—TRUSTEE. TRUSTEE, covenants by, in separation deed, are valuable consideration, 72, if frandulent purpose fails must re-convey to settlor, 125. See BANKRUPTCY—SEPARATION DEED. Vv. VOLUNTARY DEED, purchaser cannot compel delivery up of, 235. See BOND—POSTNUPTIAL SETTLEMENT. VOLUNTARY ASSIGNMENT, to defeat an execution is void, 106. to defeat rights of the crown is invalid, 111. when settlor may recover back property comprised in, 125. See POSTNUPTIAL SETTLEMENT. VOLUNTARY CREDITOR. See ADMINISTRATION—CREDITOR. Ww. WIFE. See MARRIED WOMAN. WILL, property appointed by, is assets for payment of debts, 78. voluntary settlement cannot be revoked by, 196. WITNESS, . liable to penalties in statutes of Elizabeth may refuse to answer, 221, London: Printed by C. Roworth & Sons, Newton Street, High Holborn, aa AtA A 2 i :