KD /^7 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN riEIIORY OF JUDGE DOUGLASS BOARDMAN FIRST OEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 2162.M46 1887 A treatise on the statutes of Elizabeth 3 1924 022 272 763 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022272763 A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES: THE BILLS OF SALE ACTS, 1878 and 1882; AND THE LAWS OF VOLUNTARY DISPOSITIONS OF PROPERTY; WITH gin ^ppmtlix CONTAINING THE ABOVE ACTS AND SOME UNPUBLISHED CASES (1700-1733) FROM THE COXE AND MELMOTH MS. REPORTS. By the late H7W. ,v MAY, B.A. ffvoro ifrje g tcovL& ^xiqUbK %&itian. By S. W. WOKTHItf GTO^, M.A. OP CHRIST CHURCH, OXFORD, AND THE INKER TEMPLE, BARRISTER-AT-LAW5 EDITOR OT THE FIFTH EDITION OF GRIFFITH'S " MARRIED WOMEN'S PROPERTY ACTS.' PHILADELPHIA: THE BLACKSTONE PUBLISHING COMPANY. 1887. Entered according to the Act of Congress, in the year 1887, by the BLACK- stone Publishing Company, in the office of the Librarian of Congress, at Washington, D. C. (5004) NOTE. We suggest to our patrons that, to facilitate the labor of the Judges and Reporters, they cite the TOP PAGING of books of our SERIES, and add [TEXT BOOK SERIES.]— Editor. (5005) —Q (5006) PREFACE TO THE SECOND EDITION. Since the First Edition of this book was published, there have been great changes in the law relating to its subject-matter. The law relating to bills of sale has — in consequence of the Bills of Sale Acts, 1878 and 1882, and of very numerous and important decisions upon these two statutes — undergone great alteration. The Married Women's Property Act, 1882, has expressly enacted that settlements by a married woman shall be void against her creditors in cases in which similar settlements by a man would be so void. It has also enabled a married woman to acquire and to confer any property by gift or contract; and, by giving her, as her separate property, property in which, but for that Act, her husband would have had an interest, will probably have the effect of making settlements by her voluntary which otherwise might have been deemed for value. The Bankruptcy Act, 1883, has also to some extent modified the law as to voluntary settlements. There have been many decisions of importance on the Statutes of lizabeth, such as Crossley v. Elworthy, Mackay v. Douglas, Ex parte Mercer, In re Eidler, Price v. Jenkins, Lee v. Matheivs (in Ireland), In re Foster and Lister, and Mackie v. Herbertson, which have materially altered or modified the law on the different points they dealt with. A large number of cases have beeD decided upon the complicated subject of voluntary dispositions of property unaffected by the Statutes of Elizabeth. No pains have been spared to make the revision of this book as perfect as possible, and to include every case which may appear to bear upon its subject-matter, so as to make it a complete and trustworthy book upon the subjects of which it treats. (5007) VI PREFACE TO THE SECOND EDITION. A. considerable portion of the book has been entirely re-written, as, for instance, the chapters on the Bills of Sale Acts, 1878 and 1882, on consideration between husband and wife, and on ex post facto consideration; and the more important parts of chapters iv. and v., part iv., being the chapters on the nature and extent of the consideration of marriage and on. post-nuptial settlements and ante-nuptial agreements. The -whole of that part of the book which treats of voluntary dispositions of property unaffected by the Statutes of Elizabeth has been practically re-written and very greatly enlarged. • Frequent reference has been made to the decisions of the Irish and American Courts, and in some cases reference has been made to the' divisions of the Upper Canadian Courts. The Statutes of Elizabeth, or statutes which correspond to them, are in force in these countries, and it is therefore hoped that the consideration of some of these decisions may help to the solution of many points which are still doubtful, or in which the English law appears un- settled. A full Table of Cases has been prefixed, with references to all the. contemporary Eeports, and a Table of Statutes Cited has been added. In the Appendix the two Statutes of Elizabeth against creditors and purchasers have been set out in full, as also the Bills of Sale Acts, 1878 and 1882, for convenience of reference. A new Index has been carefully prepared, which it is hoped will render this book practically useful. The cases have been brought down to the beginning of October, 1886. S. W. WORTHINGTON, 5 Stone Buildings, Lincoln's Inn, December, 1886. (5008) PKEFACE TO FIEST EDITION. To an eminent member of the Equity bar, whose pupil he was, the writer is gratefully indebted for the selection of the subject dis- cussed in these pages. It is one on which, although it has been incidentally touched upon by several writers of great repute and authority, no exhaustive treatise has appeared for more than seventy years. This fact, added to the importance and general interest of the subject, while shewing that such a work is really wanted, and therefore making apology less necessary, at the same time increases the diffidence honestly felt in submitting the present work to the profession. The writer cannot help expressing his surprise that the labours of some far abler pen than his own have not been attracted by a subject so full of interest. The law on the construction of the Statutes of Elizabeth, as it now stands, is the result of more than three hundred years of judi- cial exposition and decision. By working almost entirely from the reports of decided cases, the writer has aimed at attaining origi- nality, and, by taking every precaution to insure correctness and completeness, has done all in his power to produce a work of some value, as a convenient and trustworthy book of reference. Wherever practicable the opinions of the judges have been given in their own words, and no pains have been spared to make the book as concise and practical as possible without doing so at the expense of perspicuity, or by the omission of any important points. (5009) VU1 PREFACE TO THE FIKST EDITION. The writer can only throw himself on the indulgence of the learned members of the profession, in the hope that the honest and diligent endeavour to elucidate a subject by no means free from doubts and difficulties, may be allowed to weigh in the scale against faults and shortcomings which he fears will be found to exist in the execution of his undertaking. 3 Old Squabe, Lincoln's Inn, January, 1871. (5010) (is) TABLE OF CONTENTS. [The paging refers to the [*] pages.] PAET I. The General Operation of the Statutes of Elizabeth Against Fraudulent Conveyances, and the General Distinctions Be- tween Them. PAGE. 13 Eliz. c. 5, protects creditors and others — 27 Eliz. c. 4, protects purchas- ers^ — "What property they apply to — Re-enacted in Ireland — New York — Adopted in America — Upper Canada and elsewhere — 13 Eliz. c. 5, de- clares the common law— Simplicity of statutes, and liberal construction of — Construction of 27 Eliz. c. 4, in England and America — Construc- tive fraud under 13 Eliz. c. 5. and under 27 Eliz. c. 4 — 13 Eliz. c. 5, follows civil law — Works with Bankruptcy Acts— How it differs from them — Difference between 13 Eliz. c. 5, and 27 Eliz. c. 4 — The fraudu- lent intent shown by circumstances at different times, 1 PAET II. The Eights of Creditors Under the Statute 13 Elizabeth, Cap. 5. CHAPTER I. What Kinds of Property are within the Statute, and what Kinds of Conveyances. All property liable to be taken in execution by creditor at time of convey- ance — Purchase in name of child, wife, third person — Separate prop- erty of married women — Property subject to general power Of appoint- ment by deed — What kinds of settlements within the statute, .... 17 CHAPTER II. What Voluntary Conveyances are Void as Against Existing Cred- itors. All circumstances when deed executed to be regarded — Voluntary convey- ances by persons labeled, void — Test of indebtedness — Presumption of intention from all circumstances of settlor — Insolvency — Voluntaryvset- tlement, when void under Bankruptcy Acts — Only intent of donor ma- terial — Voluntary settlement, when good — Freeman v. Pope — Volun- tary settlements by traders — Orossley v. Elwnrthy — American law — Relative amounts of property settled and unsettled — Conveyances for meritorious considerations on same footing as purely voluntary — Lia- bilities of date of settlement— How estimated — Assets at date of settle- ment — Must be then available — Same rules in America, 35 (5011) X TABLE OF CONTENTS. [The paging refers to the [*] pages.] CHAPTER III. Voluntary Conveyances as Against Subsequent Creditors. page. Payment of debts due at date of settlement by substituting fresh ones — All creditors let in on void conveyance — Subsequent creditor may set aside, when — Statute includes creditors and others — Settlements by men about to trade — Mackay v. Douglas — Marks of fraud against future creditors — Generality — Continuance in possession — If fraudulent intent, indebtedness immaterial — Voluntary settlement void only against cred- itors — So in America — Executor de son tort — Voluntary settlement pendente lite — To avoid forfeiture — To defeat execution — Sequestration — Debt shortly due— jEe parte Mercer — Fraudulent intent, how shewn — Benefit to settlor — Powers of revocation — Conveyances on meritorious consideration on same footing as voluntary, . . . . . 61 CHAPTER IV. Conveyances for Value as Against Creditors. Deed for value only avoided if parties have notice of fraud — Who are with- in proviso in favour of bona fide purchasers without notice — In re John- son — Burden of proof on impeacher — -Must be actual and express intent to defraud — Proviso only extends to purchaser and persons claiming through him — Assignment to trustees to pay creditors — Marriage set- tlements avoided for fraud of parties — Kenan v. Crawford, 78 CHAPTER V. Badges of Fraud in Conveyances for Value. Generality of gift— Conveyance of whole property to trustees for creditors to secure past debts and future advances, or future advances only — Under Bankruptcy Act— Under 13 Eliz. c. 5 — Ex parte Games— Donor's continuance in possession — Secrecy — Conveyance pendente lite — To de- feat execution — Fraudulent preference — When it arises — What it is — Under Bankruptcy Acts— Preferences of creditors — Under 13 Eliz. c. 5 — Powers of revocation, ". . . . 93 CHAPTER VI. Continuance in Possession— How Far a Mark or Fraud. Difference between real and personal property — Such possession given as possible — Difference between absolute and conditional transfer of per- sonal property — Want of possession, when conclusive evidence of fraud —When not— Possession in pursuance of deed not presumptive evi- dence of fraud— Notoriety— Secrecy— Reputed ownership— Continu- ance in possession after sale by sheriff— Possession as tenant of pur- chaser, * (5012) 113 TABLE OF CONTENTS. XI [The paging refera to the [*] pages.] CHAPTER VII. Bills of Sale Acts, 1878 and 1882. PAGE. Reason for and objects of— Act of 1854— Act of 1878— Act of 1882 only ap- plies to bills of sale to secure payment of money — How bill of sale may , be avoided — Three classes of bills of sale — Requirements of Act of 1882 — Ex parte Stanford — Bill of sale under Act of 1882, if void, is so against all persons; — And in toto — Consideration — Proper amount of — Circum- stances under which made — Act of 1882 applies whether right to imme- diate possession given or not — What is a bill of sale under Act of 1878 — What is not— What are personal chattels — What are not — Apparent possession only under Act of 1878 — Reputed ownership — Execution — Registration — Priority of bills of sale — Attestation — Affidavit — What is sufficient description of grantor and attesting witness — Occupation — After-acquired property — Bill of sale by company — Debenture, .... 135 CHAPTER VIII. Who are Entitled to Rank as Creditors under the Statute 13 Elizabeth, c. 5. Creditors and others — General creditors — Mortgages — Husband and wife — Ancestor's creditors — Surety — Creditor under voluntary deed — Volun- tary assignee of debt — Forfeitures— Representatives of creditors — Trus- tee in bankruptcy — Sheriff — Creditors barred by acquiescence — Or con- currence — Or notice — By holding out deed to third parties as. valid — Delay only barred by Statutes of Limitation — Release when no bar, . . 163 PAET III. The Eights or Purchasers under the Statute 27 Elizabeth, Cap. 4. CHAPTER I. What Conveyances are Void against Subsequent Purchasers. All voluntary conveyances void against subsequent purchasers — Even if. with notice — American law as to notice — Conveyance for value, when void — Purchase in name of third person— What property within the statute — What not — Voluntary conveyance to public or private charity — Application of purchase-money of void settlement — Settlement, how far avoided by subsequent purchaser — Powers of revocation, 187 CHAPTER II. What Persons are Entitled to Relief as Purchasers within 27 Eliz- abeth, c. 4. , Qualification of purchaser — Mortgagee — Lessee — Assignee of lease — Pur- chaser by ex post facto consideration — Consideration of marriage — Hus- band not by jusmariti — Cestui que trust, when — Judgment creditor not a purchaser—So in America — Trustee for creditors — Grantee by general words — Trustee of voluntary deed — Voluntary grantor and vendor to purchaser must be same — So in America 217 (5013) Xll TABLE OF CONTENTS. [The paging refers to the [*] pages. J PAET IV. What is a Valuable Consideration under the Statutes or Elizabeth. CHAPTER I. Consideration Generally. page. Important only if deed bond fide — Consideration generally same under both statutes — What is a valuable consideration — Nominal — Inadequate — Meritorious — As between relations — Not strictly weighed — Different kinds of considerations — Assignments of leaseholds always for value in England, but not in Ireland, under 27 Eliz. c. 4 — Price v. Jenkins — Lee v. Mathews — Assignment of leaseholds not for value under 13 Eliz. c. 5 — In re Bidler — Settlements not on marriage, when not — Consideration not in deed may support it — Consideration tested when deed executed — Deed then for value cannot become voluntary — Paget v. Paget — Family arrangements, when upheld — No question of consideration until grantee knows of deed, 243 * CHAPTER II. Consideration between Husband and Wife. Contract between husband and wife before 1883 — After 1883 — Wife must have property at time of contract — Bargain between husband and. wife made post-nuptial settlement by wife for value — In re Foster and Lister — Shurmur v. Sedgwick — Same principles apply in Ireland — Effect of Mar- ried Women's Property Act, 1882 — Wife's equity to settlement — Separa- tion deeds — Covenant of indemnity by trustees for wife or now by her alone, voluntary or for value — Release by husband of marital rights, volun- tary or for value— Other considerations — Compromise of suit for divorce — Release of claim to alimony — Reciprocal covenant — Compromise of in- dictments and actions — Agreements for separation, when void — Subse- quent cohabitation avoids separation deed, 281 CHAPTER III. Voluntary Conveyance made good by Considerations arising subsequently. Deed originally voluntary may become a deed of value — Clarke v. Willottr- Voluntary deed voidable and not void — When sole and principal induce, ment for marrage — Presumption of such inducement — Against purchas- ers by sale or mortgage— When voluntary grantee has altered his position on faith of deed — Does same principle apply as against creditors? Rights of "creditors and others" and of purchasers, when lost— Proviso statutes protects purchaser from grantor or grantee — American view Consideration does not relate back to date of deed— Between voluntary conveyances priority of date gives title— When purchaser from grantee prevails over purchaser from grantor — American view — Creditors' deeds —Failure of Consideration by matter ex post facto does not make deed voluntary, 015 (5014) TABLE OF CONTENTS. XUL [The paging refers to the [*] pages. ] CHAPTER IV. The Nature and Extent op the Consideration of Marriage. PAGE. Marriage a contract — Highest consideration known to law — Differences be- tween marriage and other valuable consideration — Third persons inter- , ested — Married persons cannot be replaced in statu quo — What settle- ments upheld by marriage — Consideration supports all limitations to husband, wife, and issue of marriage only — Exceptions in favour of set- tlement by widow or widower on children or issue of former marriage — And by husband or wife on issne of future marriage — True view, all limitations in marriage contract question of bargain — Bargain only in- ferred in favour of husband, wife, or issne of then intended marriage — Presumption of bargain, when made — When not made — Limitations to collaterals, 331 CHAPTER V. Post-nuptial Settlements and Ante-nuptial Agreements. " Post-nuptial settlements, when for value — Release on disclaimer of power by married woman — Post-nuptial settlement by married woman whether now voluntary — In favour of whom for value — Ante-nuptial agreement — Post-nuptial settlement founded on parol ante-nuptial agreement be- > fore Statute of Frauds — Since — Marriage not part performance — Parol ante-nuptial agreement does not set up post-nuptial settlement— War- den v. Jones — Trowell v. SJienton — Nor recital of it in such settlement — Same view in America — Personal property transferred before marriage — Binding parol or written representation inducing marriage — Only of existing fact — Promise to reduce agreement to writing, when binding, 365 PAET V. Voluntary Disposition op Property independently or the Statutes of Elizabeth ; how validly made, and in what Instances they are liable to be set aside. CHAPTER I. Voluntary Agrbeements and Covenants ; Defective Execution of Power. Voluntary agreements and covenants not enforced — Contract for value gen- erally only enforcible by a party to it — By person benefited I, only if ante-nuptial — Rule in America — Voluntary agreement made good by subsequent act of donee — Defective execution of powers, supplied for whom — What defects aided — By married woman — Voluntary legal lia- bility — Voluntary covenants, 389 (5015) XIV TABLE OP CONTENTS. [The paging refers to the [*] pages. 3 CHAPTER II. Gift of Legal and Equitable Interest inter Vivos. page. Complete gift inter vivos, how made— Voluntary declaration of trust — Classification of cases — Gift of legal and equitable interest, when com- plete—Court will not alter intended mode of gift — Gift of chattels by parol, with or without delivery — By deed — Donation mortis causa — Choses in action when legally assignable — Leaseholds and real estate — Stocks and shares — Imperfect gift not upheld as trust — Warriner v. Rogers — Richards, v. Delbridge — Hewrtteg v. Nicholson — Transfer by hus- band to wife — Effect of Married "Women's Property Act, 1882 — In re Breton's Estate — Cases where donor equitable owner with power to pro- cure transfer of legal estate — Gift, when complete — True test, intention of settlor at time — Resulting trust to settlor — Transferee whether trus- tee — Strong v. Bird — Assignments to trustees to pay debts, 402 CHAPTER III. Gift of Equitable Interest Inter Vrvps. Donor, egal owner, declares self trustee for donee — What declaration of trust * must be — Declarations of trust, when valid — When invalid — Notice to cestui que trust not necessary — Trusts, how declared — Of lands, tene- ments, and hereditaments — Of personal estate — Evidence as to donor merely equitable owner — Assignment donee direct — Donor's trustee a trustee for donee — Assignment to new trustees for donee — Nature of in- terest — Meek v. Kettlewell — Kekewich v. Manning — Test of valid assign- ment — Notice to trustees and acceptance of trust, when necessary — Transfer of legal interest in property not at law assignable — Declaration of trust by settlor — In re King — Test whether donor has carried out pur- pose — Gift partly perfect — Voluntary deed operates from delivery — Donor's subsequent, acts immaterial — Probate duty, . . . ... 438 CHAPTER IV. When and to what Extent the Absence of a Valuable Consideration will invalidate a complete voluntary disposition of property. Complete disposition of property only void under Statutes of Elizabeth, Bankruptcy Act, or for fraud — Construction of voluntary deed same as if for value — Good between parties — Void against creditors and pur- chasers only so far as to satisfy their claims — Volunteer may redeem subseqent mortgage — Voluntary contracts void ab initio — No one may set up his own fraud to avoid his own deed — Deeds for special purposes only — deeds executed under mistake of law — Obtained by fraud of grantee — Subsequent acts of donor do not in general affect validity of deed — Subsequent dispositions of same property — Voluntary deeds to take effect on marriage, ... 460 CHAPTER V. Gifts voidable between the Parties for Fraud, Undue Influence, &c, practised on the Donor. Fraud between parties — Deed executed but not understood by donor — Vol- untary settlement, when rectified — Voluntary disposition in favour of (5016) TABLE OF CONTENTS. XV [The paging refers to the [•] pages.] PAGE, person in confidential relation to donor voidable — Burden of proof of undue influence, when cast on donee — When not — Principle applies generally — Child and parent — Child and person in loco parentis — Wife and husband — Cestui que trust and trustee — Client and solicitor — Ward and guardian — Miscellaneous cases — Trifling gift to person in such posi- tions upheld — Marks of undue in lluem-e — Intention of donor, how pro- duced — What is undue influence as to wills — Burden of proof, on whom — Powers of revocation — Absence of in voluntary settlement now only a circumstance to be considered — Who can set aside voidable deed — But only if confidential relation then existed — Third persons, how affected — Against whom inference of undue influence operates — Confirmation of voluntary disposition by act inter vivos, or will — By acquiescence — By delay — Delay when no bar, 480 PAET VI. Miscellaneous Points, Practice under the Statutes of Elizabeth, and Costs. CHAPTER I. Miscellaneous Points and Practice. Specific performance of contract for sale under 27 Eliz. c. 4, when enforced Parties to the action — Evidence of debts under 13 Eliz. c. 5 — Burden of proof generally on creditor — Inquiries as to debts — Who can bring ac- tion under 13 Eliz. c. 5 — Existing creditor — Subsequent creditor — Trus- tee in bankruptcy — Executor — Committee of lunatic — Corporation — Company — Liquidator of unregistered company — Trustee of settlor can impeach settlement — In what Court — Form of action — Whether by originating summons — Judgment or lien not now necessary for action — Court only declares settlement fraudulent and void against creditors or purchaser — Cancellation and reconveyance — Early concurrent jurisdic- tion of law and equity — Proceedings now usually in Chancery Divi- sion — Creditor not estopped by taking a benefit — Fraud must be al- leged — Settlement partly good, partly void — Marshalling applies only in favour of volunteers — Contribution, when enforced against volun- teer — Ker v. Ker — Construction of penal clauses of these statutes — Can defendant be compelled to answer any interrogatories — Production of documents — Whether enforced — Bunn v. Bunn — Parties grieved — Penal- ties under these statutes, 511 CHAPTER II. Costs. Costs now in discretion of Court — Under 13 Eliz. c. 5 — Under 27 Eliz. c. 4 — In cases of undue influence and fraud, 544 (5017) XVI TABLE OF CONTENTS. [The paging refers to the [*] pages.] APPENDIX. NO. PAGE. I. 13 Eliz. c. 5 (Creditors) (From " The Statutes at Large"), .... 555 II. 27 Eliz. c. 4 (Purchasers) " " " .... 557 III. 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878), 561 IV. 45 & 46 Vict. c. 43 (Bills of Sale Act, 1878, Amendment Act, 1882), . 569 Cases from the Coxe and Melmoth MSS., a.' d. 1700-33. V. Stokes v. Stokes — Article of separation — Covenant of Idemnity — Offer by husband to take wife back — Costs, v . . 573 VI. Vernon ». Yalden — Bond — Trust declared— Subsequent assignment, . 574 VII. Barnardiston v. Simpson — Deed of separation — Compromise of suit for divorce — Proof of consideration, 575 VIII. Stanfield v. Miller — Bond — Delivery — Incomplete gift, 576 IX. Cracherode v. Hallam — Husband - and wife — Marriage settlement — Post-nuptial resettlement — Consideration, 576 X. Higden v. Watkinson — Chose in action — Assignment — Assignees in bankruptcy, 577 XI. Witherden v. Jumper — Incomplete gifts — Subsequent creditors, . . . 579 XII. Anon. — Imperfect gift of money, 579 XIII. Kock v. Dade — Voluntary settlement — Power of revocation — Subsequent creditors — Children by former husband — Marshalling 579 INDEX, 581 (5018) (xvii) TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Abbott v. Burbage, — v. Stratten, Ackworth v. Kempe, Aeraman r. Corbett, Acton t . Woodgate, Adames v. Hallet, Adams v. Adams, . — v. Claxton, — v. Graham, Adney v. Field, Agra Bank r. Barry, Airey v. Hall, . Aldborough v. Tyre, Alden v. Gregory, . Alderson «. Maddison — v. Temple, Aldridgeu. Duke, . — v. Forbes, Alexander v. Brame, Alford v. Lea, . . Allam, Ex parte, . Allen v. Arme, . — v. Bonnett, — v. Gilby, — v. M'Pherson, — v. Stear, . . — v. Thompson, Allhusen v. Labouchie Allibon v. Attorney- General, Alsager v. Spalding, Alsop, Ex ■parte, . , Alton v. Harrison, Amiss v. Witt, 2 STAT. OP ELIZ. Where Reported. )789 { 2 Bing. N. C. 444; 2 Scott, 656; 1 Hodges, 448, . . . . 3 .T. & Lat. 603, 1 Doug. 40, 1 J. & H. 410 | 2 My. & K. 492, . . . . . ■' L. R. 6 Eq. 468; 18 L. T. (N.S.)7 ! ! 8 Ir. Ch, Rep. 41, .... 6 Ves 225 33 L. J. (N.S.) Q. B." 71;' 3 New Rep. 272; 9 L. T. (N.S.) 606, . . 2 Amb. 654, L. R. 7 H. L. 135, . 3 Sm. & Giff. 315, . . 7 CI. & F. 436, 2 Eden, 280, 8 App. Cas. 467; 7 Q. B. D. 174; 49 L. J. (N.S.) Ex. 801; 29 W. R. 105; 43 L. T. (N.S.) 349, . . 1 W. Bl. 660; 4 Burr. 2235, . . Finch, 439, .... 9 L. J. (N.S.) Ch. 37, .... 19 Beav. 436; 7 De G. M. & G. 525 . Cro. Eliz. 54; 2 Leon. Ill, .... 14 Q. B. D. 43; 33 W. R. 231, 1 Vern. 365 L. R. 5Ch.'577; 23 L. T. (N.S.) 437, 3 Dowl. 143, 1 H. L. C. 191, ... 2 Cro. Eliz. 645, 1 H. & N. 15; 25 L. J. (N.S.) Q. B. 3 Q. B. D. 654; 47 L. J. (N.S.) Q. B. 819;27W. R. 12;39L.T. (N.S.)207, Colles, P. C. 393, 4 Bing. N. C. 407, ID. F. &J. 289; 29 L. J. (N.S.) Bkcy. 7; 6 Jur. (N.S.) 281, . . . L. R. 4 Ch. 622; 38 L. J. (N.S.)! Ch. 669; 17 W. R. 1034; 21 L. T. [ (N.S.) 282), J 33 Beav. 619; 1 B. & S. 109; 30 L. J. (N.S.) Q. B. 318; 7 Jur. (N.S.) 499; 9 W. R. 691;4 L. T. (N.S.) 283 (5019) Page. 54 228 180 41, 56, 85, 111, 171, 264, 286, 294 107, 329, 433, 434, 435 18, 33, 167, 398, 476, 526, 531, 546 223, 368 390 160 212, 396 131 413, 420 184, 315 197, 202 385. 373, 375, 384, 101 196 535 167, 398 475 139, 145 222 97 179 498 542 160 539 170 104 181 11, 64, 72, 76, 96„ 98. 99, 100, 104,. Ill, 123, 125 409 xvm TABLE 0F ( CASES. [The paging refers to the [*] pages.} Names of Cases. Ancona v. Rogers, Anderson v. Elsworth, — v. Maltby, — v. Roberts, Andrew's Trusts, In re Andrews, In re, . . — v. Marris, . Angier v. Angier, . . Annandale v. Harris, Anonymous Case, . Antsey v. Newman, . Antis, In re, . Antrobus v. Smith, . Apharry u.Bodingham Appleton v. Campbell Archer v. Hudson, Ardglass v. Muschamp — v. Pitt, Argol v. Cheney, . Armitage. Ex parte, Armstrong, In re, — -o. Armstrong, — v. Baldock, — v. Tamperon, .Arnold?). Mayor oi"l Gravesend, . . J* Arthur v. Clarkson, . Artistic Colour 1 PrintingCo., Inrej Arundell v. Phipps, . Ashe v. Lowe, . . . Ashfield v. Ashfield, . Ashford v. Tuite, . . Ashton v. Buckshaw, — v. Bretland, Ashwell v. Lomi, Askew v. Lewis, Where Repobted. 1 Ex. D. 292; 46 L. J. (N.S.) Ex. 121; 24 W. R. 1000; 35 L. T. (N.S.) 115, 3 Giff. 166, { 2 Ves. 244, 18 Johns. 513, 7 Ch. D. 635; 26 W. R. 572; 38 L. T. (N.S.) 137, 30 Ch. D. 159; 54 L. J. (N.S.)Ch. 1049; 34 W. R. 62; 55 L. T. (N.S.) 428 1 Q. B. 3, . . . Prec. Ch. 497, 2 P. Wms. 432, Freem. Ch. 197, 1 Vent. 257, 2 Ro. Rep. 173, . . . Dyer, 294, ... . .... Co. Litt. 3b,.. Prec. Ch. 101, . App. No. XII., 39 L. J. (N. S.) Ch. 769, 31 Ch. D. 596; 54 L. T. (N.S.) 742 . 12 Ves. 39, Cro. Eliz. 350, 2 Car. & P. 347 7Beav. 551; 8 Jur. 761, . . . 1 Vern. 237, . 1 Vern. 238, Latch, 82, 17 Ch. D. 13; 29 W. R. 722; 44 L. T. (N.S.) 262, ... 17 Q. B. D. 521; 34 W. R. 709 Ir. R. 8 Eq. 1, . . Gow. 33, 19 W. R. 558; 24 L. T. (N. S.) 275, . 2K. & J. 574; 25 L. J. (N. S.) Ch. 530; 2 Jur. (N. S.) 703, . . 35 Beav. 458; 14 W. R. 754, 21 Ch. D. 510; 31 W. R. 149; 48 L. T. (N. S.) 46, 10 Ves. 139, ... •{ Page. ■{ I Hayes & J. 287, 2 Vern. 287, .... 7Ir. C. L. Rep. 91, L. R. 9 Eq. 510; 39 L. J. (N. S.)Ch. 205; 18 W. E. 307; 21 L. T. (N S.) 197, .... 9 Mod. 59, . : . . L. R. 2 P. & D. 477. . 10 Q. B. D. 477; 31 W. R. 567; 48 L T. (N. S.) 534, .... 151 241, 496,499, 502, 552 170 325, 326, 329 44 282 173 301 378, 383 394 34 69 70 203, 236 375 389, 476 468, 535 390 390, 413,414, 428, 454, 475 166, 333 469 485, 490, 504, 551 504 505 192 523 31 461, 485, 496, 497 500, 501 122, 126, 127 442, 458 226 398, 441 153 113,114,119,125, 281, 340, 532 204 17,21 149 125,128, 147, 151, 153, 340 220 498 148, 154 (5o.:c) TABLE OF CASES. [The paging refers to the [*] pages.] XIX Names of Cases. Where Eepoeted. Asphaltic Wood Pave- ment Co., In re, . Assaby v. Manners, Atkins v. Essex, Atkinson v. Maling, — - v. Smith, . . Attenborough v. \ Thompson, ... J Att. Gen. v. Corpora- tion of Newcastle, . Att. -Gen. v. Eastlake, — c. Magdalen College, — u.Whorwood Atwell r. Harris, . . At wood v. Chichester, Aulton v. Atkins, . Ayerstc. Jenkins, . Aylett v. Ashton, Ayliffe v. Tracy, . . Alyward v. Kearney, Baber's Trusts, In re Back v. Gooch, . . . Baddeley v. Baddeley, Bailey, Ex parte, — v. Gould, . . . Bainbridge v. Firm stone, Bainbridge v. Browne, Bainton v. "Ward, . Baker v. Bradley, . — v. Jennings, — v. Monk, . . — v. Loader, . — v. White, . Baldwin v. Cawthorne Bale v. Newton, Ball v. Burnford, . Bamford v. Baron, Banbury's Case, . Banbury v. White, 32 W. R. 16; 49 L. T. (N.S.) 159, . . Dyer, 235 a, 14 Ves. 542, 2 T. R. 462, 3 De G. & J. 18(i, 2 H. & N. 559; 27 L. J. Ex. 23; 3 Jur. (N.S.) 1307, 12 CI. & F. 402, 11 Hare, 205, 18 Beav. 223, 1 Ves. 535, 2 Ro. Rep. 91 ; 2 Ro. Ab. 790, . . 3 Q. B. D. 722; 47 L. J. (N.S) Q. B. 300; 26 W. R. 320; 38 L. T. (N.S.) 48, 18 C. B. 249, L. R. 16 Eq. 275; 42 L. J. (N.S.) Ch. 690; 21 W. R. 878; 39 L. T. (N.S.) 126, 1 My. & Cr. Ill, 2 P. Wms. 65, 2 Ball & B. 463, L. R. 10 Eq. 554; 18 W. R, 1131, . . 4 Camp. 232, 9 Ch. D. 113; 26 W. R. 850;. 38 L. T. (N.S.) 906, 3 De G. M. & G. 534; 22 L. J. Bkcy. 45; 17 Jur. 475, 4 Y. & C. Ex. Ca. 221, . ... 1 P. & D. 2; 8 A. & E. 743; 1 W. W. & H. 600, 18 Ch. D. 188 | 2 Atk. 172, 2 Sm. & Giff. 531 j Freem. Ch. 234, . •. 33 Beav. 419; 4 De G. J. & S. 388, . . L. R. 16 Eq., 49; 42 L. J. (N.S.) Ch. 113; 21 W. R., 167, 2 Vern. 215, 19 Ves. 166, 1 Vern. 464, Prec. Ch. 113 Cited 4 Camp. 234, Freem. Ch. 8 2 H. & C. 300; 32 L. J. Ex. 258; 9 Jur. (N.S.) 913; 11 W. R. 785; 8 L. T., 508, (5021) Page. 162 332 491 115 247, 284, 293 159 202, 206 206 531 412, 425 267 26, 27, 282 400 468, 469, 477 27 369, 389 494 435 181 407, 418, 421, 442 252 51 253 484, 385, 489, 490 496. 497, 504, 505, 551 535 265 276, 489, 491, 504, 549 394 248 493, 551 469 181 476 267, 285 120, 181 188, 212, 213 157 XX TABLE OF CASES. [The paging refers to the [*3 pages. 1 Names of Cases. Bandon v. Becher, Banfield v. Whipple, Bank of England v. Lunn, Banner, Ex parte, . . Barber r. Mitchell, . Barclay, Ex parte, Barham v. Clarendon, Barker's Estate, In re, Barkworth v. Young, Barling v. Bishopp, . Barlow i\ Heneage, . Barnard i. Ford, . . Barnardiston v. Simp- son, Barnes r. Hedley, . . Barrack v. McCulloch, Where Eepoeted. Barrett v. Hartley, . Barron v. Constable, . Barrow v. Barrow, . — v. Gray, . . . Bartlett v. Williams, Burton v. Vanhey thuy- sen, Barwick r. Eeade, . Basse v. Gray, .... Basset v. Nosworthy, Batcock v. Eckler, , Bateman v. Countess of Ross, Bates v. Dandy, . . — v. Graves, . . Bath and Montague's Case, Battersbee v. Far- "1 rington, . . . J Bawdes v. Amhurst, . Baxter v. Pritchard, . Bayley v. Boulcott, . Bayspoole v. Collins, Beaden v. King, 3 CI. & F. 479, . . 15 Allen (Mass.) 13, 15 Ves 569 2 Ch. D. 278; 45 L. '].', Bkcy.' 73; 34 W. E. 476; 34 L. T. 199, . . 2 Dowl. P. C. 574, 5 DeG. M. &G. 403; 25 L. J. Bkcy. 1; 1 Jur. (N.S.) 1145, 10 Hare, 126, ... ... 44 L. J. (N.S.) Ch. 487, . j 4 Drew. 1 ; 26 L. J. Ch. 153; 3 Jur. I (N.S.) 34, ... . \ Page. 29 Beav. 417, . . j Finch, Prec. Ch. 211, L. R. 4 Ch. 248; 38 L. J. (N.S.), Ch. 671; 17 W. E. 478; 20 L. T. (N.S.) 289, App. No. VII, . . 2 Taunt. 184, 3 K. & J. 117-8; 20 L. J. Ch. 105;/ 3 Jur. (N.S.) 180 \ L. E. 2 Eq. 789; 12 Jur. (N.S.) 426: 14 L. T. (N.S) 474 7 Ir. Ch. Eep. 467, . 18 Beav. 529, . 2 Cro. Eliz. 551, . 1 Pick. (Mass.) 288, . 507 99 18 276 174 11 Hare, 126, 1 Hi Bl. 627, . 2 Vern. 693, . Finch, 102. . . . 24 New York, 623, 1 Dow. 235, . . . 2 Atk. 207, . . . 2 Ves. Jun. 292, 3 Ch. Ca. 106, 1 Sw. 106, Prec. Ch. 402, .... 3 N. & M. 638; 1 A. & E. 456; 3 L , (N.S.) Q. B. 185, 4 Euss 345, L. E. 6 Ch. 228; 40 L. J. (N.S.). Ch. 289; 19 W. E. 363; 25 L. T. (N.S. ) 282, ' 9 Hare, 499, (5022) 115 341, 342, 361 188, 280, 323, 324, 393 379, 380, 381, 382, 383, 393 70, 72, 74, 107, 515, 521, 530 453 29, 300 266, 267, 310, 313 255 20, 21, 22, 24, 33, 164, 547 493 394 296, 333, 502 225 120 3, 7,21,192,193, 200, 201, 203,204, 219, 224, 225, 231, 233, 511, 530, 537 25 344, 389 183, 235, 248 54 308, 313 447 67, 531 394 36, 45, 324, 368, 378, 383, 517 369, 372 12, 96 444 82, 84, 190, 193, 218, 247. 250, 251, 266 508 TABLE OF CASES. [The paging refers to the [*] pages. ] XXI Names of Cases. Beak v. Beak, . . Beales t\ Tennant, . Beamish v. Phaire, . Beanland v. Bradley, Beard r. Nuttal, . . Beaseley i . Magrath, Beatson v. Beatson, . Beattie v. Lord Ebury, Beauchamp r. Winn, Beaumont v. Eeeve, — r. Thorpe. . . Beaven is.Earl of Ox- 1 ford, . . . / Beech v. Keep, Beecher v. Major, . Beetenson, Ex parte, Belcher v. Prittie, . Beldings v. Eeed, . . Bell, Ex parte, — e. Simpson, . — v. Stucker, . — v. Thompson, Bellamy v. Saull, Bellasis, In re, Bell's Estate, In re, Benbow v. Townsend, Benham v. Keane, Bennet v. Musgrove, Bennett v. Bernard, Bentley, Fx parte, — v. Mackay, Benton v. Thornhill, Benyon r. Benyon, Berdoe v. Dawson, Beresford v. Hobson, Berkeley, Be, . . Where Kepokted. L. R. 13 Eq. 489; 41 L. J. (N.S.) Ch. 470; 20 L. T. (N.S.) 81, . ... 29 L.J. (N.S.)Q. B. 188; 6 Jar. (N.S.) 628; 1 L. T. 295, . .... 11 Ir. Eq. Rep. 559, . ... 2Sm. &G. 339, 1 Vein. 427, 2 Sch. & L. 31, 12 Sim. 281, . . . . . . j 7 L. R. H. L. 102; L. R. 7 Ch. 777; 41 L. J. (N.S.)Ch. 804; 20 W. R. 994; 27 L. T. (N.S.) 398, L. R. 6 H. L. 234; 22 W. R. 193, . . 8 Q. B. 483; 15 L. J. (N.S.) Q. B. 141; 10 Jut. 284, ... 1 Yes. 27, 6 De G. M. & G. 492; 25 L. J. (N.S.) \ Ch. 299; 2 Jur. (N.S.) 121, ... J 18 Beav. 285; 23 L. J. (N.S.) Ch.539, 12 L. T. (N.S.) 562, 42 L. T. (N.S.) 808, 10 Bing. 408, 3 H. & C. 955; 34 L. J. Ex. 212; 11 Jur. (N.S.) 547; 13 W. R. 867; 13 L. T. 66, 1 Gl. & J. 282, 2 H. & N. 410; 26 L. J. Ex. 363, . . 10 Q. B. D. 129; 52 L. J. (N.S.) Q. B. 49; 31 W. R. 183; 47 L. T. (N. S.) 624, W. N. (1878) 121, 4 Best & S. 265; 32 L. J. (N.S.) Q. C. B. 366; 11 W. R. 800; 8 L. T. (N. S.) 534, L. R. 12 Eq. 218; 19 W. R. 699; 24 L. T. (N.S.) 466, 11 L. R. Ir. 512, 1 My. & K. 506, 3 D. F. & J. 318; 31 L. J. (N.S.) Ch. 129; 8Jur.(N.S.)604;lJ.&H. 685 2 Ves. 51, 10 Ir. Eq. Rep. 584, . ..... 34 W. R. 579, 15 Beav. 12, > j 7 Taunt. 149; 2 Mars. 427, . . . j 1 P. D. 447; 45 L. J. (N.S.) P. 93; 24 W. R. 950, 34 Beav. 603, 1 Mad. 362, L. R. 19 Eq. 467; 44 L. J. (N.S.) Ch. 554; 23 W. R. 687, (5023) Page. 409 160 229 485, 491 , 167, 390 490 222,405,445,447, 476, 477, 496 385 507 469 62, 63 213, 219, 224, 226, 227 413, 427, 429, 446 442, 459 142 33, 252 161 464 252 25, 29, 501 159 442 292 444 227 527, 532 235, 236, 263, 276 139 397,440,446,482, 504, 505 99, 100, 106, 118, 121, 130, 131 342 489, 504, 551 300 ' 526 XX11 TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Berry, Ex parte, Berwick, Ex parte, Besant v. Wood, Bessey v. "Windham, . Bethel v. Stanhope, Beverley's Case, . Beverley v. Gatacre, . Beyfus v. Bullock, Bianchi v. Offord, Biddulph v. Goold, . Bill v. Cureton, . . . Billage v. Southee, . Billiter v. Young, . . Bindley v. Mulloney, Binnington v. "Wallis, Birch v. Blagrave, Bird v. Blosse, . . Bird's Trusts, In re, . Biscoe v. Kennedy, . Bishop, Ex parte, Bissell v. Hopkins, Bizzeyw. Flight, . . Black & Co's Case, Blackie v. Clark, . , Blackburn, Ex parte, Blackborn v. Edgeley, Blackwell v. England, Blagrave v. Routh, Blaiberg, Ex parte, — v. Parke, . . — v. Parsons, . . Blake v. French, . . — v. Hyland, . . — v. Johnson, — Marcell, . . Blakelyu. Brady; . . Blandford v. Marl- borough, Blenkinsopp^.Blen- 1 kinsopp, . . . J Blount v. Doughty, . — v. Harris, . . 19 Ves. 218 29 W. R. 292;' 43 L. T. (N.S.j 576 '. 12 Ch. D. 605; 40 L. T. (N.S.) 445, j 6 Q. B. 166; 14 L. J. (N.S.) Q. B. 1 1, / 2 Cro. Eliz. 810, 2 Dyer (Vail, ed.), 245 b, n., ... 2 Eolle, 305, .... .... L. R. 7 Eq. 391, 17 Q. B. D. 484, 11 W. R. 882; 2 New Rep. 420, . . 2 My. & K. 503, ... . . j 9 Hare, 534, 6 E. & B. 1 L. R. 7 Eq. 343; 17 W. R. 510; 20 L. T. (N.S.) 263, . . . . 2 B. & Aid. 650, 1 Amb. 264, 2 Vent. 361, . . . 3 Ch. D. 214 1 Bro. C. C. 17, n., L. R. 8 Ch. 718; 42 L. J. Bkcy. 107; 21 W. R. 716; 28 L. T. 862, . . 3 Co wen (Sup. Ct. of N. Y.) 166, 3 Ch. D. 269; 45 L. J. (N.S.) Ch. 852; 24 W. R. 957, . . L. R. 8 Ch. 262, . . . 15 Beav. 595, .... L. R. 12 Eq. 358; 40 L. J. Bkcv. 79; 19 W. R. 973; 25 L. T. 76, " 1 P. "W. 606, ... 8 E. & B. 541; 27 L. J. Q. B. 124; 3 Jur. (N.S.) 1302, . 2 K. & J. 509; 8 De G. M. & G. 620, 23 Ch. D. 254; 53 L. J. (N.S.) Ch. 461; 31 W. R. 906; 49 L. T.fN.S.) 16 10 Q. B. D. 94; 52 L. J. (N.S.) Q. B. 110; 31 W. R. 246; 48 L. T (N.S.) 311 17 Q. B. D. 337, .'..".'■' 5 Ir. Ch. Rep. 246, 2 Dr. & Wal. 397, Prec. Ch. 142, ... 2 B. & B. 38, n. (a), 2 Dr. & Wal. 311, . . Page. >8;j 2 Atk. 545, 1 De G. M. & G. 495; 12 Beav. 568; 21 L. J. Ch. 401, . . 3 Atk. 481, .... 4 Q. B. D. 603; 48 L. j. (N.S.) Q. B 159; 27 W.R.202; 39 L.T.(N.S.)465 (5024) 255 145 301,304,308,310, 314 171,172,173,176 178, 464, 470 111 34 221, 535 531 139 118 7, 204, 425, 434, 463, 476 487, 495, 496 12, 33, 315 312 312, 469 191, 471, 472, 473 375, 384 482 26 44 120 457, 506 525 505 103 491 159 507, 508 153 157 139, 140 281, 283 237, 239 412 396 418, 449, 454, 455 369 23,72,73,100,107, 167, 526, 529 67, 248, 398 158, 159 TABLE OF CASES. [The paging refers to the [*] pages;. xxm Names of Cases. Blundivell r. Lover- dall, Blunden v. Barker, . Boazman r. Johnston, Bold i: Hutchinson, Boldero r . London & \ Westminster Loan >■ & Discount Co. , . J Bolland, Ex parte, Bolton v. Bolton, — i'. Madden, . Bond r. Taylor, . . . — r. Walford, Bonfield v. Hassell, . Bonham v. Newcomb, Bonner v. Bonner, Bonny (Lessee of) v. Griffith, . . Booker, In re, . . Bores v. Booth, . Bosvil v. Brander, Bott i'. Smith, ■ Bottle r. Knocker, Boughton v. Boughton — v. Sandilands Bourne v. Fosbrooke, Bonstead v. Shaw, Bovy's Case, .... Bowen v. Bramidge, — v. Evans, — v. Kirwan, Bowman v. Rostron, — v. Taylor, . Boxall v. Boxall, . . Boyes, In re, . Boyse v. Rossborough, Brace v. Marlborough, Bracewell v. Williams Brackenbury v. Brack enbury, Bradley v. Wyndham, Bradshaw v. Bradshaw Bragg v. Hopkins, . Brandlyn v. Ord, . Brandon v. Robinson, Branton v. Phillips, Brearclin%. Dorrington Brenan v. Brenan, . Where Reported. 1 Sid. 21, . . 1 P. W. 639, . 3 Sim. 377, . . 5 De G. M. & G. 558, 5 Ex. D. 47; 28 W. R. 154; 42 L. T. (N.S.) 56 21 Ch. D. 543; 45 L. J. Bkcy. 133 ;\ 24 W. R. 932; 34 L. T. 66(i, j 3 Sw. 414, L. R. 9 Q. B. 55; 43 L. J. (N.S.) Q. B. 35;22W. R. 207; 29 L. T. (N.S.) 505 31 L. J. Ch. 784; 2 J. &H. 473, . 32 Ch. D. 238; 55 L. J. (N.S.) Ch 667; 54 L. T. (N.S.) 672, . . . 32 Beav. 217, 2 Vent. 365, 17 Beav. 86, Hayes, 115, . 34 W. R. 346, 2 W. Bl. 1226, 1 P. Wms. 459, 21 Beav. 511, . R. 46 L. J. (N.S.) Ch. 159; 25 W. 209; 35 L. T. (N.S.) 545, . . 1 Atk. 625, .. . 3 Taunt. 342, . . 18 C. B. (N.S.) 524, . . 27 Chy. 280, . 1 Vent. 193, .... 6 Car. & P. 140, . L. R. 2 H. L. 257, LI. & G. t. Sug. 47, 2 A. & E. 295, . . 2 A. & E. 278 27 Ch. D. 220, . . 26 Ch. D. 531, 6 H. L. C. 2; 3 Jnr. (N.S.) 373 2 P. Wms. 491 L. R. 2 C. P. 196; 12Jur. (N.S.) 1004; 15 W. R. 130; 15 L. T. (N.S.) 215, 2 Jac. & W. 391, ... 1 Wils. 44, 9 M. & W. 29, 2 Dowl. 151, 1 Atk. 571 18 Ves. 429 2 C. P. D. 212 4 De G. & Sm. 122, 2 Ir Eq. Rep. 266, Page. 108 491 535 368, 384, 386 32, 72, 88, 98, 99, 106, 110, 125, 126, 149 44,67,92,103, 142, 143, 144 476 248 341 477, 478, 479 398, 458, 472 391, 397 29, 300 218 459, 475, 502 538 296 22, 72, 85, 87, 99, 107, 529 07, 431, 440 399, 472, 476 478 407 520 368, 370 106 507 248 383 383 300 431 497, 498 225, 230. 253 459, 473 174 104 179 195 339 150 227 534 (5025) XXIV TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Breton's Estate, In re, Brett v Geeenwell, Brewell, Ex parte . Bridge v. Bridge, . . Bridgman v. Green, . Briggs v. Boss, . . . — v. Jones, . — v. Parkman, Bright v. Eynon, . . British India Steam Navigation Co. v. Commissioners of Inland Revenue, . Brittain v. Brown, . Britten v. Britten, . . Broeklehurst v. Eail- way Printing and Publishing Co., . . Brodrick v. Scale, . . Bromley?). Brunton, Brook v. Brook, . . Brookbank v. Brook bank, .... Brooke v. Pearson, Brookes v. Harrison Brooks v. Powers, Broun v. Kennedy. Brown v. Bellaris, . — v. Carter, . . — ■ v. Fryer, . . . — v. Jones, . . . — v. Morgan, . . Browne v. Burton, — v. Cavendish, . Browne's Estate, In re Brownsmith v. Gil- borne, Bruce v. Bruce, . . . Brunsden v. Stratton, Buckland v. Bose, . Buckle v. Mitchell, . Buckley v. Arnold, . Wheee Reported. 17 Ch. D. 416 ; 50 L. J. (N. S. ) Ch. 369 ; 1 29 W. E. 777; 44 L. T. (N.S.) 337, / 3 Y. & C. Ex. 230, 16 Ch. D. 484; 50 L. J. (N.S.) Ch.384; 29 W. E. 299; 43 L. T. (N.S.) 580. 16 Beav. 315 2 Ves, 627; Wilm. 58, L. E. 3 Q. B. 268; 37 L. J. (N.S.) Q. B. 10), L. E. 10 Eq. 92; 22 L. T. (N.S.) 212, 2 Metcalf (Mass.), 258, 1 Burr. 395, Page. 7Q. B. D. 165,' . . 44 L. T. (N.S.) 504, 9 Beav. 143, W. N. (1884) 70, L. R. 6 C. P. 98; 40 L. J. (N.S.) C. P. 130; 19 W. E. 386; 23 L. T. (N.S.) 864, L. E. 6 Eq. 275; 37 L.J. (N.S.) Ch. 902, 9H. L. C. 193; 3 Sm, & Giff. 481, 1 Eq. C. Ab. 168, . . 5 Jur. (N.S.) 781, . . 6 L. E. Ir. 332, 15 Mass. Bep. 244, . 4 De G. J. & S. 217; 33 L. J. (N.S,) Ch. 342; 10 Jur. (N.S.) 141; 33 Beav. 133 5 Mad. 53, 5 Ves. 862, I 46 L. T. (N.S.) 637, . . . 1 Atk. 188, .... L. E. 12 Ir. 122 [ 5 Dow. & Low. 292, . . 1 J. &Lat. 637, . . 13 Ir. Ch. Eep. 295 [ \ 3 Stra. 738, .... L. E. 11 Eq. 371; 40 L. J. (N.S.') Ch'. 141; 24 L. T. (N.S.) 212, . . Prec. Ch. 520, . 7 Chy. 440, ■■.'.'.'.'.'.'. 18 Ves. 100, J 2 Eq. C. Ab. 752 (5026) 406, 407, 421, 422, 423 424, 441, 442 300 159 400,412,413,425, 426, 427, 428, 429, 438,446,451. 457 248, 267, 496, 504, 551 159, 160 198, 219 120 532 162 436 296 162 158, 160 410 477 475 338 149 120 481, 483, 495 17 229, 231, 319, 320, 321, 363 161 342, 365, 366, 384 26 458 425, 445 358, 360, 361 369, 389 394, 395, 396 11, 369 53 193, 195, 208, 219, 513, 514 205 TABLE OF CASES. [The paging refers to the [*] pages. ] XXV Names of Casks. Where Repoeted. Page. Bucknal r. Roiston, Budge r, Budge, . Budgen v. Sage, . Buller v. Waterhouse, Bullock r. Sadlier, — v. Thome, Bulmera. Hunter, . Bunn v. Bunn, — v. Markham, Bunyard v. Seabrook, Burbridge, Ex parte, Burg's (Lady) Case, Burgh v. Francis, Burke v. Dawson, Burkitt v. Ransom, Burling v. Patterson, Burlinson v. Hall, . . Burrel's Case, . . Burrell, Ex parte,' Burrough's Case, . Bursill v. Tanner, . Burton, Ex parte, Bury v. Oppenheim, Butcher v. Harrison, — v. Stead, . . Butler v. Butler, . . Butler's and Baker's Case, Butterfield v. Heath, Butters, Ex parte, . . Button v. O'Neill, . . i v. Byas, .... Byrne v. Carew, . . . Cadell v. Bewley, Prec. Ch. 2S7, 16 Beav. 34 3 My. Cr. 683, 3 Keb. 751; T. Jo. 94. Amb. 764, . . .... F. Moo. 615, | L. R. 8 Eq. 46; 38 L. J. (N.S.) Ch. \ 543; 20 L. T. (N.S.) 942, . . / 4 De G. & Sm. 316; 3 New Rep. 679; 12 W. R. 561, 7 Taunt. 226; 2 Mars. 532; Holt. 352, 1 F. & F. 321, 1 Deac. Bkcy. 131, F. Moo. 602, . . . . . .' 1 Eq. C. Ab. 320, Rolls March 1805 (MS.), 2 Coll. 395, .... 9 C. & P. 574, .- 12 Q. B. D. 347; 53 L. J. (N.S.) Q. B. 222; 32 "W. R. 492; 50 L. T. (N.S.) 723, 6 Rep. 722, j 1 Ch. D. 537; 45 L. J. (N.S.) Bkcy. 68; 24 W. R. 353; 34 L. T. (N.S.) 198, . 17Ves. 267, 13 Q. B. D. 691; 55 L. J. (N.S.) Q. B. 53; 34 W. R. 35;53L.T. (N.S.) 445. 13 Ch. D. 102; 28 W. R. 268; 41 L. T. (N.S.) 571, 26 Beav. 594, 4 B. & Ad. 129; 1 Nev. & M. 677, . . L. R. 7 H. L. 846; 44 L. J. (N.S. ) Bkcy. 129; 24 W. R. 463; 33 L. T. (N.S.) 541, 16 Q. B. D. 374; 55 L. J. (N.S,) Q. B. 55; 34 W. R. 132; 54 L. T. (N.S.) 591, . . 3 Rep. 25 a, . 15 Beav. 408; 22 L. J. (N.S.) Ch. 270 j 14 Ch. D. 265; 28 W. R. 876; 43 L. T. (N.S.) 2, 4 C. P. D. 354; 48 L. J. C. P. 368; 27 W. R. 592; 40 L. T. (N.S.) 799, . . 2 Ves. 164, : . . 13 Ir. Eq.Rep. 1, 117, 120, 171, 178 398 110 32, 210, 212 218 202, 210, 214,242, 537 32, 78, 79, 90, 91, 333 540, 541 407 100, 110 17 218, 315, 327 227 512 168 119, 126 412 197, 203, 237, 238, 240, 329 385 22 26, 31 95, 96 489 170, 541, 542 15 W. R. 703, 102 281, 282 406 231, 284, 288, 289, 513, 514 171, 523 157 394 312 233 (5027) XXVI TABLE OF CASES. [The paging refers to the [*J pages. ] Names of Cases. Cadogan v. Kennett, Cahill v. Cahill, . . Callaghan v. Callaghan Callishera.Bischoffs- \ heim, . . . . / Campbell v. Ingilby, — v. Leach, . Campions. Cotton, . Cane's Trusts, In re, Caney r. Bond, Cann, In re, — v. CanD, Capel !-. Powell, Caplen's Estate, In re, Carey v. Stafford, . . . Carpenter v. Buller, . — v. Carpenter — v. Heriot. . — v. Snelling, Carr v. Burdiss, . . — v. Taylor, . . Carriek v. Ford, Carter, Ex parte, . . — v. Hind, . . . — v. Palmer, . . Carteret v. Paschal, . Casson v. Churchley, Castle v. Downton, . Cathcart v. Robinson, Caton v. Caton, . . . Cave v. Cave, .... Cawkwell, Ex parte, Cecil v. Butcher, Chadwick v. Doleman Challinor, Ex parte, . Chamberlayne v. Twyne, .... Chambers v. Crabbe, Chamley v. Dunsany, Chandos v. Talbot, . Chaplin, Ex parte, Where Reported. 2Cowp. 434; Moo. 617, Page. 8 App. Cas. 420; 31 W. R. 861; 49 L. T. (N.S.) 605, 7 CI. & Sim. 374, L. R. 5 Q. B. 449; 39. L. J. (N.S.) Q. B. 181; 18W.R. 1127, 1 De G. & J. 393; 21 Beav. 567, . . 2 Amb. 740, 17 Ves. 263, . . . . 36 L. J. (N.S.) Ch. 744, 6 Beav. 486, .... 13 Q. B. D. 36; 32 W. R. 1 P. Wins. 723, . . . 17 C. B. (N.S.) 743, . . 45 L. J. (N.S.) Ch. 280/ 3 Sw. 427, 8 M. & W. 209, . 1 Vern. 440, 1 Ed. 338,. 1 Browne (Mass.), 452, . 1 C. M. & R. 782; 5 Tyrw 10 Ves. 578, . ... L. R. 4 Ch. 247, 12 Ch. D. 908; 27 W. R. 943; 41 L. T. (N.S.) 37, 22 L. T. (N.S.) 116, 8 CI. & F. 657, 3 P. Wms. 197, 53 L. J. (N.S.) Q.B. 335, . . . 5 C. P. D. 56; 49 L. J. (N.S.) C. P. 6; 28 W. R. 257; 41 L. T.(N.S.)528 5 Peters (Amer.), 264, L. R. 2 H. L. 127; L. R. 1 Ch. 137; 36 L. J. (N.S.) Ch. 886; 16 W. R. 1, . 15 Ch. D. 639; 49 L.J. (N.S.) Ch. 505; 28 W. R. 798; 42 L. T. (N.S.) 730, 1 Rose, 313, 2 Jac. & W. 565, 2 Vern. 530 16 Ch. D. 260; 29 "W. R. 205; 44 L. T. (N.S.) 122 F. Moo. 638, 34 Beav. 457, . . . . . . 2Sch.&Lef.690, 2 P. Wms. 608, 26 Ch. D. 319; 53 L. J. (N.S.) Ch. I 732; 32 W. R. Dig. 10, 1 (5028) 3, 4, 5, 6, 33, 79, 85, 87, 89, 99, 111, 113, 125, 190, 198, 340, 537 301, 308, 309, 314 472 276 337, 534 203 22, 89, 91, 333, 335 441 51 144 264, 505 29 441, 455 401, 468 378, 383 223 489 120 114, 122,123,127, 131, 408 341 523 143, 146, 157 284, 286 503 450 138 158, 159, 160 5 372, 374, 387 78 181 459, 472 476 141,142,143,144 08 489 518, 527 447 12, 38, 41, 72, 85, 95, 97, 99, 110, 111,113,124,127, 171 TABLE OF CASES. [The paging refers to the [•] pages.] XXVU Names of Cases. Chapman, Ex parte, . — v. Biggs, . — v. Bradley, — v. Emery, — r. Gibson, — v. Knight, Charing Cross Adv. \ Bank, Ex parte, . j Cheale v. Kerwood, Chesterfield v. Jans- sen, . • • ■ Child v. Sands, . Childers v. Childers, Chilliner v. Chilliner, Cholmley's Case, . . Chowne v. Bay lis, Christ's Hospital v. Budgin, . ... Christopherson v. Bur- ton, Christy v. Courtenay, Chubb v. Stretch, . . Churchman v. Harvey Citizens' Bank of Louisiana v. First I National Bank of | New Orleans, . . J Clanricarde v. Henn- "Wheee Reported. 45 L. T. (N.S.) 268 11 Q. B. D. 27; 48 L. T. (N.S.) 704, 4D. J. &S. 71, 1 Cowp. 278 mg, Claridge v. Hoare, Clark v. Clark, . — .v. Girdwood, . — v. Malpas, . . Clarke v. Chambers, . — r. Palmer, . . — v. Willott, . . — it. Wright, . . Clarkson v. Hanway, Clavering v. Clavering Clavey v. Hazley, . 3 Bro. C. C. 229 5C. P. D. 308;49L. J. (N.S.)C. P.425; 28 W. R. 919; 42L. T. (N.S.) 538, . 16 Ch. D. 35;50L. J. (N.S.) Ch. 157; 29 W. R. 204 ; 44 L. T. (N. S. ) 113, . 6W. R.494, 2Tes. 156, ISalk. 31, 1 DeG. & J. 482; 26 L. J. Ch. 743; 3 Jur. (N.S.) 1277, 2Ves 528 2 Rep. 51; 2 Roll. Abr! 393, . . . . . 31 L. J. Ch. 757; 31 Beav. 351; 8 Jur. N.S.) 1028; 11 "W. R. 5; 6 L. T. N.S.) 739, '. . 2 Vern. 683, Page. L. R. 3 Ex. 160 ; 18 L. J. (N. S. ) Ex. 60, 13 Beav. 96, L. R. 9 Eq. 555; 39 L. J. (N.S.) Ch 329; 18 W. R. 483; 22 L. T. 86, 1 Amb. 335, ... L. R. 6 H. L. 352; 43 L. J. (N.S.)Ch. 269; 22 "W. R. 194, 9 W. R. 912, 14 Ves. 59, 10 P. D. 188 7 Ch. D. 9; 47 L. J. (N.S.) Ch. 116; 26 W. R. 90; 37 L. T. (N.S.) 614, . 4 De G. F. & J. 401; 31 Beav. 80; 10 W. R. 613, 8 Ir. Ch. Rep. 26, 21 Ch. D. 124; 51 L. J. (N.S.) Ch. 634, L. R. 7 Ex. 313; 41 L. J. Ex. 197: 21 W. R. 73 6 H. &N. 849; 30 L. J. Ex. 113; 7 Jur. (N.S.) 1032; 9W. R. 5571, . 2 P. Wins. 204, ." 2 Vern. 473, -[ 2Cowp. 427, (5029) 159, 160 282 334, 346, 477 190,192, 193,245, 266, 346 390, 394, 397 147, 150, 155 141,143,145 389 104, 248, 531 543 470, 472, 473 336 205 71 20, 86, 87 175, 176, 178, 179 33, 41, 87, 517 25, 26, 27, 29 332, 394 384 181, 508 539 306, 308 591 248 338 116, 198 194,219,241, 268, 315,316,476, 511, 512 187,189,191,195, 196,342,343,345, 347, 350,352,353, 354,356,357,358, 359, 360, 364 248, 266 222,326,453, 459, 472, 476 33 XXV111 TABLE OF CASES. [The paging refers to the [*] pages. : Names of Cases. Clayton v. Wilton, Cleaver, In re, . . Clements v. Cheesnian — «. Eccles, — v. Matthews, Clemson v. Townsend, Clennell v. Clennell, Clerk v. Nettleship, . — v. Rutland, . . Clifford v. Turrell, . Clifton v. Cockburn, . Clinch v. Financial Corporation, Clint, Be, ... Clough v. Lambert, Clow v. "Woods, Clubb v. Hutson, . Cochrane v. Chambers — v. Willis, Cocking v. Pratt, . . Cockshot v. Bennett, Cohen, Ex parte, Coke v. Bullock, . . Cokes v. Mascal, Cole i'. Davies, . . — v. Gibson, . . . Coleman, Be Exparte May, Colemere, In re, . . Where Reported. Collard v. Bennett, . Collet v. De Gols, . . Col lin gridge v. Paxton, Collins, Exparte, . . v. Burton, v. Locke, . Collinson v. Pattrick, Collis v. Tuson, . . Collyer v. Isaacs, 3 Mad. 302, n. ; 6 M. & S. 67, 55 L. J. (N.S.) Q. B. 455, 27 Ch. D. 631, 11 Ir. Eq. Rep. 229, . -j 11 Q. B. D. 808; 52 L. J. (N.S.) Q.B 772, 1 C. & E. 418, W. N. (.1884) 14, . . 2 Lev. 148, ... Lane, 113, 1 Y. & C. C. C. 138; 9 Jur. (N.S.)633; 3 My. & K. 76, L. R. 4 Ch. 117; 38 L. J. (N.S.) Ch. 1; 18 W. R. 84; 19 L. T. (N.S.)334 L. R. 5 Eq. 450, L. R. 17 Eq. 115; 43 L. J. Bkcy. 16; 22 W. R. 152; 29 L. T. (N.S) 543, 10 Sim. 179, 5 Serg. & Rawle (Pennsylv.), 375, . 18 C. B. (N.S.) 414, Amb 1 . 179, L. R. 1 Ch. 58; 35 L. J. (N.S.) Ch. 36; 11 Jur. (N.S.) 870; 14 W. R. 19; 13 L. T. (N.S.) 339, 1 Ves. 401, . ....." 2 T. R. 763, L. R. 7 Ch. 20; 41 L. J. (N.S.) Bkcy. 17; 20 W. R. 69; 25 L.T. (N.S.) 473 Cro. Jac. 49, 2 Vern. 34, 1 Ld. Raym. 724, 1 Ves. 503, 14 W. R. 315; 13 L. T. (N.S.) 685, . L. R. 1 Ch. 128; 35 L. J. (N.S.) Bkcy. 8; 12 Jur. (N.S.) 38; 14 W. R. 318; 13 L. T. (N.S.) 621, .... 28 Chy. 556, . Forr. Ca. T. 65, . . 11 C. B. (N.S.) 683, L. R. 10 Ch. 368; 44 L. J. (N.S.) Ch. 78; 23 W. R. 862; 32 L. T. (N.S.) 108, 28 L. J. (N.S.) Ch. 943; 5 Jur. (N.S.) S52; 4 De G. & J. 612 4 App. Cas. 674; 48 L. J. (X.S.) P. C. 68; 28 W. R. 189; 41 L. T. (N.S.) 292, 2 Keen, 123, 46 L. T. (N.S.) 387, .... 19 Ch. D. 342; 51 L. J. (N.S.)Ch. 14; 30 W. R. 70; 45 L. T. (N.S.) 567. (5030) Page. 343,348,350,351, 353,355,356, 357, 360 139 410 38, 42,46, 47 50, 51,55 150, 161 139. 482 281, 286 237,238, 327, 328 267 275 549 ■ 521 32, 301, 398 120 253 18 389 489, 506, 509 104 154 213 375, 384, 386 132, 178 505 96 520 233 22 147 223, 521, 527 469 438, 446 143 160, 161 TABLE OP CASES. [The paging refers to the [*] pages. ] XXIX Names of Cases. Column v. Croker, — r. Sarrel, . . . Colombine D.Penhall, Colt r. Wollaston, Colville r. Parker, . Colyear v. Mulgrave, Colyer r. Finch, . . . Compton v. Collinson, Conard r. Atlantic In- surance Co., . . . Conelly r. Steer, . . Conning, Ex parte, . Conolan v. Ley land, . Consolidated Credit and Mortgage Cor- poration (Limited t. Gosney, . . Constantein v. Blache, Conyngham r. Plunk- ett, Cook, Ex parte, . — r. Wright, Cooke v. Lamotte, . , — v. "Walker, Cooper, Ex parte, — v. Chitty, . . — r. Davis, . . . — v. Ibberson, — r. Martin, . . — v. Whitting- 1 ham, . J — v. "Wbrmald, . — r. Zeffert, . . Coote v. Jecks, . Copis v. Middleton, . Coppock v. Bower, . Corbett v. Brock, . . — v. Poelnitz, . . — v. Bowe, . . . Corlett v. Eadcliffe, . Cormick,'!;. Trapaud, Cornish v. Clark, . "Whehe Reported. 1 Ves. 160, , 3 Bro. C. C. 12; 1 Yes. 50, 1 Sm. & Giff. 228, 2 P. Wms. 154, Cro. Jac. 158; Prec. Ch. 101, 2 Keen, 81, 5 H. L. C. 905, . . . 2 Bro. C. C. 377, . . . 1 Peters (Amer.) 386 7 Q. B. D. 520; 50 L. J.(N.S.) Q. B. 326; 29 W. R. 529; 45 L. T. (N.S.) 402 . L. R. 16 Eq. 414; 42 L. J. (N.S.) Ch. 74;21"W. R. 784, 27 Ch. D. 632; 54 L. J. (N.S.j Ch. 123; 51 L. T. (N.S.) 895, .... 16 Q. B. D. 24; 55 L. J. (N.S.) Q. B. 61;34W. R. 106, 1 Cox, 287, 2 Y. & C. C. C. 245, 8 Ves. 353, 1 B. & S. 559; 30 L. J. Q. B. 321; 4 L. T. 704, . . ... 15Beav.241, j 3 W. R. 357, 10 Ch. D. 313; 48 L. J. (N.S.) Bkcy. 54; 27 W. R.299; 39L.T. (N.S.) 523, 1 Burr. 20; 1 W. Bl. 65, 32 W. R. 329; 48 L. T. (N.S.) 831, . 29 W. R. 566, L. R. 3 Ch. 47; 17 L. T. (N.S.) 587, . 15 Ch. D. 501; 49 L. J. (N.S.) Ch. 752; 28 "W. R. 720; 43 L. T. (N.S.) 16, . 27 Beav. 266, 32 W. R. 402, L. R. 13 Eq. 597; 41 L. J.(N.S.)Ch. 599, 2 Mad. 430 1 1M.&W. 361, 20 Beav. 530, 1 T. R. 5, ... 25 W. R. 59, . . 14 Moo. P. C. 121, 6 Dow. 860, . . L. R. 14 Eq. 184; 42 L. J. (N.S.) Ch. 14; 20 W. E. 897; 26 L. T. (N.S.) 494 Page. 525, 527 266, 390, 397, 398, 399, 405, 412. 413, 447 78, 89, 90 531 188, 221, 245, 365 390, 391, 403 197 301 120 155, 465 147 483 139 104 405, 443, 431 338 276 481, 485, 487, 496, 551 124, 252 101, 148 179 159 159 395, 396 545 373, 384 157 149 38, 56, 79, 80, 81 244, 245, 247 253, 311 492, 504, 505 303 159 1, 10, 84, 99,260 191, 219, 264, 534 32, 33, 40, 41, 45, 56, 67, 69, 246, 268,269,271,280, 522, 525, 526, 528, 529, 545 (5031)' XXX TABLE OF CASES. [The paging refers to the [*] page?.] Names of Cases. Cornthwaile v. Frith, Cory v. Cory, . . . . Cotes v. Michill, . . Cotteen v. Missing, . Cotterel v. Homer, Cottington v. Fletch er, Cottle v. Fripp, . . . Cotton v. King. . . Coulson v. Allison, Coulston v. Gardiner, Coultwas v. Swan, Count d'Epineuil, In, Coutts v. Acworth, . Coventry v. Coventry, Coward v. Meek, . . Cowx r. Foster, . . . Cox, Ex parte, — v. Bernard, . . Cox's (Lady) Case, . Cracherode v. Hallam, Cracknall v. Janson, Crampthorne v. Janson Cramer v. Moore, . . Craven, Ex parte, . . Crawcour, Ex parte, . Cray v. Mansfield, . . — r. Eooke, . Credit Co. v. Pott, . Creswell v. Cokes, Crickett v. Dolby, Crisp v. Pratt, . . . Croft v. Lumley, Crofton v. Ormsby, . Crofts v. Middleton, . Croker r. Martin, . . Crosbie v. Murphy, . Crosby v. Crouch, . . Cross, In re, . — In re, . — v. Cross, . . . — r. Faustenditch, Crosser and Long v. Maxwell, ... Crossley v. City of 1 Glasgow Co. j Where Eepoeted. 4 De G. & Sm. 552, 1 Ves. 19 3 Lev. 20, 1 Mad. 176, . . 13 Sim. 506, . . . 2 Atk. 155, .... 2 Vern. 220, 2 P. Wms. 358; 2Eq. C. Ab. 53, 2 De G. F. & J. 521, . 3Sw. 279 n., 19 W. E. 485, 22 L. T. (N.S.) 539, 20 Ch. D. 758, L. E. 9 Eq. 519; 39 L. J. (N.S.) Ch. 1 649; 18 W. E. 482, J Gilb. Eep. 160, 50 L. J. (N.S.) Ch. 187, U. & H. 30, I Ch. D. 302; 24 W. E. 302; 33 L. T. (N.S.) 757, 8 Hare, 310, 3 P. Wms. 338, App. No. IX, II Ch. D. 1;48L. J. (N.S.) Ch. 168; \ 27 W. E. 55; 39 L. T. (N.S.) 32, . J 6 L. J. (N.S.) Ch. 91, . . 3 Sm. & Giff. 141, 19 W. E. 137; L. E. 10 Eq. 648; 18 W. E. 1022; 23 L. T. (N.S.) 563, . . . 9 Ch. D. 419; 47 L. J. (N.S.) Bkcv. 94; 26 W. E. 733; 39 L. T. (N.S.) 2, 1 Ves. 379, Ca. t. Talb. Forr. 153, 6 Q. B. D. 299; 50 L. J. (N.S.) Q. B. 106; 29 W. E. 326; 44 L. T. (N.S.) 506, 2 Leon. 8, . ... .... 3 Ves. 12, Cro. Car. 550, 6 H. L. C. 672 3 Sch. & Lef. 583, 2 K. & J. 194; 5 D. M. & G. 192; 29 L. T. 114 1 Dow. & C. 15; 1 Bli. N. E. 573, . . 8 Ir. C. L. E. 301, 2 Camp. 166; 11 East, 256, ... 4 De G. & Sm. 364, 19 W. E. 153, 1 L. E. Ir. 389, Cro. Jac. 180, W. N. (1885) 95, 4 Ch. D. 421; 46 L. J. (N.S.) Ch. 65; 25 W. E. 264; 36 L. T. 285, . . . (5032) Page. 436 273 173 389, 440, 446 342, 361 470 283 474 334, 492 72 266, 267 161 405, 496, 499, 502, 551 365 145, 154, 155 305 285 167, 400 312 281, 284, 289 192, 198, 202, 219, 246, 280, 530 124 391 82, 85 149 494 312 142, 146 543 394 200 228 321, 386 293 209, 222, 464, 465 160 101 104, 234 76 409, 417 210, 220 139, 162 411 TABLE OF CASES. [The paging refers to the [*] pages.] XXXI Names of Cases. Crossleyi). El worthy, Crouch v. Martin, . Crow v Rogers, Crowe v. Ballard, . Croxton v. May, . Cullen's Estate, In re, Cullingworth v. Loyd Cunningham, In re, . Currie v. Misa, . . . — v. Nind, . . Curson v. Blackwall, Curteis' Trusts, In re, Curtis v. Perry, . . — v. Price, . . Cutler, In re, . . . Daking v. Whimper, Dale v. Hamilton, Dalrymple v. Dal- rymple, .... Dalston v. Coatsworth Damage v. White, Dame Burg's Case, Dame Ever's Case, D'Angibau, In re, Daniel, In re, ... Dann, Ex parte, D'Arcyw. D'Arcy, . Darston v. Lord Orford, Darvill v. Terry, . . Daubeny v. Cockburn. Dauglish v. Tennent, Davenport v. Bishopp, Davidson v. Eussel, . Davies v. Cooper, . . Where Reported. L. R. 12 Eq. 158; 40 L. J. (N.S.) Ch. 480; 19 W. R. 842; 24 L. T. (N.S.) 607, 2 Vern. 595, ," 1 Str. 592, 3 Bro. C. C. 117; 1 Ves. 215; 2 Cox; 253, 9 Ch. D. 388; 27 W. R. 327; 39 L. T. (N.S.) 461, 14 Ir. Ch. Rep. 506 j 2 Beav. 385, 28 Ch. D. 682; 54 L. J. (N.S.) Ch. \ 448:33W.R.389;52L.T.(N.S.)214J 1 App. Cas. 554: L. R. 10 Ex. 153; 44 L. J. (N.S.) Ex. 94; 23 W. R. 450, 1 My. & Cr. 17, { Toth. 257, L. R. 14 Eq. 217; 41 L. J. (N.S.) Ch. 631; 26 L. T. 863, 6 Ves. 739, 12 Ves. 89, 14 Beav. 220 26 Beav. 568, 5 Hare, 369; 2 Ph. 266, 2 Hag. Con. 54, 1 P. Wms. 731, 1 Sw. 137 F. Moo. 602, 2 Roll. Rep. 34, 15 Ch. D. 242;49L.J.(NS.)Ch.756; f 28 W. R. 930; 43 L. T. (N.S.) 135 \ 25 L. T. 188, 17 Ch. D. 276; 29 W. R. 771; 44 L. T. (N.S.) 760, 1 Hayes & J. 115, Colles, 229, 6H &N. 811, 1 Mer. 638, L. R. 2 Q. B. 49; 36 L. J. (N.S.) Q. B. 10; 15 W. R. 196, 1 Phil. 698; 2 Y. & C. C. C. 451, . -f 2 Dick. 761, ... 5 My. & Cr. 270 . (5033) Page. 39,40,41, 50, 52, 57, 58, 59, 64, 67, 71, |75, 223, 381, 516,519,621, 524, 525, 545, 548 450 391 505 300, 301 343,356,359, 360, 361 104 139,146, 147, 150, 162 244 204,285,287, 289, 293, 513, 514 203 441, 445, 452,453 470 68,69,464 300 208, 466,513,514, 529, 550 444 331 459 276 218 214 358, 361,390,391, 392 136 95, 96, 509 108 105, 107, 137,157 315, 317, 460 104 294, 391, 399,512 534 530, 531 248 XXX11 TABLK OP CASES. [The paging refers to the [*] pages.] Names of Casks. Davies v. Davies, . — r. Jones. . — «. Otty, ' . . — v. Eees, . . Davis v. Burton, . — v. Goodman, — v. Usher, Davy v. Garrett, . . Dawson, Ex parte, — r. Bank of 1 Whitehaven J — v. Kearton, — v. Massey, . Day v. Waldock, . . Dean v. Brown, . De Beil v. Thompson, Debenham v. Mellon Deffell v. White, . De Grouchy, Ex parte, De Hoghton v. Money De La Touohe's Set- tlement, In re, . De Medina v. Grove De Metton v. De Mel- lon, Den v. Ogle Dening r. Ware, . . Denison r. Tattersall. Dennis v. Whetham, Dent v. Bennett, . Dettmar v. Metropoli- tan & Provin. Bank Devon v. Watts, . . Dewey v. Bayntun, . Dias v. De Livera, Dickenson v. Wright, Dickinson v, Burrell, Whebe Beported. 4 Giff. 417, ... 10 W. E. 779, 35 Beav. 208, 17 Q. B. D. 408; 55 L. J. (N.S.) Q. B. 363; 34 W. R. 573; 54 L. T. (N.S.) 813, 11 Q. B. D. 537; 52 L. J. (N.S.) Q. B. 636; 32 W. E. 423, 5 C. P. D. 128; 49 L. J. (N.S.) C. P. 344; 28 W. E. 559; 42 L. T. (N.S.) 288 12 Q.'b. D. 490;' 53 L.' J. (N.s!) Q. B. 422; 32 W. E. 832; 51 L. T. (N.S.) 297 7 Ch. D. 473; 26 W. E. 110, .... L. E. 19 Eq. 433; 44 L. J. (N.S.) Bkcy. 49; 23 W. E. 354, 6 Ch. D. 218; 46 L. J. (N.S.) Ch. 884 26 W. E. 34; 37 L. T. (N.S.) 64, . 3 Sm. & Giff, 186, 1 Ball & B. 233. . 1 Dowl. 523, .... 8 Dowl. & Ey. 75; 5 B. & C. 336; 2 C. & P. 62, .... 3 Beav. 469, 5 Q. B. D. 394; 49 L. J. (N.S.) Q. B. 497; 28 W. E. 501; 42 L. T. (N.S.) L. E.Vc. P. 144; 36 L. J. (N.S.) C. P. 25 3 Mont.' & A. 27, ..'.'. L. E- 2 Ch. 164; L. R. 1 Eq. 154, . L. E. 10 Eq. 599; 40 L.J.(N.S.)Ch.85 10 Q. B. 152; 15 L. J. Q. B. 287; 10 Jur. 428, 2 Camp. 420; 12 East. 234, . . Lofft, 216 22 Beav. 185, . . . 18 L. T. (N.S.) 303, ... L. E. 9 Q. B. 345; 43 L. J. (N.S.) Q. B. 129; 22 W. E. 571; 30 L. T. (N. S.) 514, . . 4 My. & Cr. 269; 7 Sim. 539, .... Page. 1 H. & M. 641, 1 Doug. 86, 6 East. 257, . 5 App. Cas. 123; 49 L. J. (N.S.) P C. 26;42L. T. (N.S.) 367, . . 5 H. & N. 401; 29 L. J. (N.S.) Ex.150 L. R. 1 Eq. 337; 35 L. J. (N.S.) Ch. 371; 12 Jur.(N.S.)199; 14 W. E.412, (5034) 489 152 470 139, 140 138, 139, 140 150 138 533 43 283 168, 398 490, 494 174, 178, 180 339, 340 369, 384 302 159 256 529 481 171, 181 470 343, 345, 356 168, 390, 391, 398 39, 41, 58, 60, 517 177 487, 495, 496 490 12 47, 55, 81,87,244, 245, 340, 368 267, 281 347 412, 458, 461, 476 TABLE OP CASES. [The paging refers to the [*] pages.] xxxm Names of Cases. Where Reported. Dicks p. Yates, . . Dilkes v. Broadmead. Dillon r. Coppin, . . — r. Grace, . . . Dillwyn r. Llewellyn, Dilrow r. Bone, . . Dipple r. Corles, . Dobbyn r. Adams, Doble, E.r parte, Dolan c. Macdermot, Doe r. Ball, . — V- Bennett, — r. Bottriell, — r. Carter, — v. Fallows, — r. James, — r. Knight, — v. Lewis, — !'. Manning, . — :r. Martin, . . — r. Martyr, — r. Parratt, — c, Eolfe, — v. Routledge, — r. Rowe, — r. Rusham, . — r. Sherlock, — r. Webber, . — p. Weller, Dolin f. Coltman, , . Dolphin v. Aylward, Dommett v. Bedford, Donaldson v. Donald- son, . . — v. Gillot, . . , Dorman, Ex parte, . Doughty, In re, Douglas v. Culverwell, 3 STAT. OF ELIZ. 18 Ch. D. 76; 50 L. J. (N.S.) Ch. 809 44 L. T. (N.S.) 660, 2 De G. F. & J. 566; 30 L. J. (N.S.) Ch. 268; 3 L. T. 605 4 My. & Cr. 647 | 2 Sch. & Lef. 456, 4 D. F. & J. 517; 31 L. J. (N.S.) Ch. 658, . . 3 Giff. 538. . . 11 Hare, 183, 7 Ir. Ch. Rep. 193, 26 W. R. 407; 38 L. T. (N.S.) 183, . L. K. 3 Ch. 676; 16 W. R. 68, . 11 M. & W. 531, 8 C. & P. 124, 5 B. & Ad. 131, 8 T. R. 300, 2 Tyr. 460, . . . . . 16 East, 212 5 B. & C. 671 | 10 B. & C. 673 9 East, 70, j 4 T. R. 39, 1 B. & P. (N.R.) 332, . . -J 5 T. R. 652, . . 8 A. & E. 650 . . 2 Cowp. 705, 4 Bing. N. C. 737, . 17 Q. B. 723, . . . Fox&Sm. (Ir. Rep.) 90, 1 A. & E. 733, . . 7 T. R. 478, .... 1 Vern. 294, . • . L. R. 4H. L. 486; 23L.T. (X.S.)636, 3 Ves. 149, Kay, 718; 23 L. J. (N.S.) Ch. 788, j L. R. 3 Eq. 278; 15 W. R. 166; 15 L. T (~K S ) 382 L. R. 8Ch. 51;42L.'j. (N.S.) Bkcy.20; 21 W. R. 94; 27 L. T. (N.S.) 528, . 18 L. T. (N.S.) 188, 3 Giff. 251, (5035) Page. 545 332, 334, 357 272,389, 390,412, 413,419, 425.428, 453, 457, 458 396 322, 324, 390.393 425, 446 440, 444 223, 368 221, 257 206 116, 170, 522 480 204, 236 228 166 218 164,458,472,474, 475 220, 222, 223 187,189,190,191, 193, 195, 218 213 83, 195, 218, 242, 329 286 192, 247, 264, 286 84, 189, 190, 196, 198, 203, 218, 245, 315, 537 218, 245, 369 188, 193, 222, 237, 239,240,241,326, 327, 464, 475 266, 267 218, 219, 512 396 164 164,192,196,209, 218, 219, 227, 228, 235, 327, 466, 512, 529, 535 339 405,445,451,452, 458 459 129 160 245, 468 XXXIV TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Where Reported. Page. Douglas v. Douglas, . Douglasse v. Ward, . Dowell v. Dew, . . . Drakeford v. Wilks, . Draycott, Ex parte, Drew v. Martin, . Drewe v. Lainson, . . Drosier v. Brereton, . Dryden v. Hope, . . Duffield v. Scott, Duffin v. Furness, . . Dunbar v. Tredennick, Duncan v. Cashin, . . Dundas v. Dutens, . Dunkley v. Dunkley, Dunne v. Boyd, . . . Dunster v. Glengall, Durand v. Durand, . Dutton v. Morrison, . — v. Thompson, . Duvergier v. Fellowes, D'Wolf v. Harris, . Dye v. Dye, . . . Dyer v. Dyer, . . Dyke v. Elliott, . . Eales v. Gee, . Earl of Limerick, In re, East Grinstead's Case, East India Co. v. Clark, — v. Clavel, Eastland v. Burehell, Eastwood v. Brown, Edeu.Knowles, . . Eden v. Chalkhall, Edgell v. Haywood. Edwards v. Cooper, — v. Edwards, — v. Glyn, . . — v. Harben, . — v. Jones, . . 22 L. T. (KB.) 127, 1 Ch. Ca. 99, 1 Y. & C. C. C. 345, 3 Atk. 539, 2 Glyn. & J. 283 2 H. & M. 130 11 A & E. 529, 15 Beav. 221, 9 W. R. 18; 3 L. T. (N.S) 280, . . . 3 T. R. 374, Sel. Ca. Ch. 77, 3 Ball & B. 304, L. R. 10 C. P. 554; 44 L. J. (N.S.) C. P. 396; 23W.R. 561; 32 L. T. (N.S.) 497, 1 Ves. Jun. 198; 2 Cox, 235, . . j 2 De G. M. & G. 390, I. R. 8 Eq. 609, 3 Ir. Ch. Rep. 47, 2 Cox, 207, 17 Ves. 193 23 Ch. D. 278;' 52 L.'j! (N.'s.) Ch. ) 661; 31 W. R. 596, j 10 B. &. C. 826, 4 Mason (U. S. Circ. Ct.), 515, . 13 Q. B. D. 147, 2 Cox, 92; 1 Wat. Cop. 216, . . L. R. 4 P. C. 184; 41 L. J. (N.S. Adm. 65; 20 W. R. 497; 26 L. T, (N.S.) 45, Barn. Ch. 397, . . . 14 Ir. Jur. (7 N.S.) 65, . Duke (ed. 1676), 64, . . . Prec. Ch. 377; Gilb. Eq. Rep. 37, . . Gilb. Eq. Rep. 37; Prec. Ch. 377, . . 3 Q. B. D. 432; 47 L. J. (N.S.) Q. B. 500; 27 W. R. 290; 38 L. T. (N.S.) 568, . . Ry. & Mood. 312, j 2 Y. & C. C. C. 172 i Sir T. Raym. 25, . . 3 Atk. 352, .... 11 Q. B. 33, 2 Ch. D. 291; 45 L. J. (N.S.) Ch. 391; 24 W. R. 713, ... 2 E. & E. 29, 2 T. R. 587, 1 My. & Cr. 226; 7 Sim. 325, . . (5036) 408 222, 332 396 67 366 21, 200 175 405, 438, 460, 553 160 302 19, 20 506 149 19, 372, 377, 378 380, 381, 382, 383 300 409 227 312 94 480,481, 498, 499, 500, 501, 552 469 120 444 . 201 538 254 160 205 319 19, 47, 315 302 114,119, 123, 124, 131 17, 164, 219, 513, 519 327 18 17 147, 153 104 19, 69, 117, 118, 119, 121, 122, 124, 127, 130, 133, 178 447, 454 TABLE OF CASES. [The paging refers to the [*] pages. ] XXXV Names of Cases. Elibank v. Montolieu, Ellis, Ex parte, . . . — t: Barker, . . — (•. Nininio, . . Ellison v. Ellison, . . Elmslie v. McAulay, Elsey v. Cox, . — v. Lutens, Elton v. Elton, . Elwesfl. Mawle, . . . Elworthy r. Bird, — r. Wickstead, Emanuel v. Bridger, . Emby )•. Gny, . Emmett v. Norton, . Empress Engineer- \ ing Co., In re, . j Empringham v. Short, England v. Downs, . Erlanger r. New Sombrero Phos- phate Co., Espey v. Lake, . . Essery v. Cowlard, Estwick v. Caillaud, Evans v. Carrington, — v. Evans, — v. Grey, . . . — v. Jennings, — v. Jones, . . . — v. Llewellyn, . Eveleigh v. Purssford, Evelyn v. Templar, . Ever's (Dame) Case, Everitt v. Everitt, Exton v. Scott, . . . Eykyn, Be, ... Eyre, Ex parte, . . . — v. Green, . . . Where Eepoeted. 5 Ves. 737 L. R.6 Ch. 602; idll J. (N.S.) Bkcy. 77; 19 W. R. 913; 2i L. T. (N.S.) 819, L. E. 7Ch. 104; 41 L. J. (N.S.) Ch. 64; 20 W. R. 160; 25 L. T. (N.S.) 680, LI. &G. (t. S.)333, 6 Ves. 656, ... . j 3 Bro. C. C. 624, 26 Beav. 95, 8 Hare, 159, 3 Atk. 504, ... 2 Sm. L. C. 8th ed. 169, . . . 2 Sim. & S. 372, 1 Jac. & W. 69, L. R. 9 Q. B. 286; 43 L. J. (N.S.) Q. B. 96; 22 W. R. 404; 30 L. T. (N.S.) 195, 3 Mer. 702, . ... 8 C. & P. 506, 16 Ch. D. 125; 29 W. R. 342; 43 L. T. (N.S.) 742 3 Hare, 461, 2 Beav. 522, 3 App. Cas. 1218; 48 L. J. (N.S.) Ch. 73; 27 "W. R. 65; 39 L. T. (N.S.) 269, . . . . 10 Hare, 260, 26Ch. D. 191; 53 L. J. (N.S.), Ch. 661 32 W. R. 518; 51 L. T. (N.S.) 60, 5 T. R. 420, 29 L. J. (N.S.) Ch. 330, 2 Ir. Ch. Rep. 242, 9 L. R. Ir. 539, 6 "W. R. 616, . . 11 Jur. (N.S.) 784, .... 3 Bro. C. C. 150; 1 Cox, 333, . 2 M. & Rob. 539 2 Bro. C. C. 148, j 2 Roll. Rep. 34, L. R. 10 Eq. 405; 39 L. J. (N.S. ) Ch. ,\ 777;18W.R.1020;23L.T.(N.S.)136/ 6 Sim. 31, 6 Ch. D. 115; 37 L. T. (N.S.) 261, . 44 L. T. (N.S.) 922, j 2 Coll. 527, Fairebeard v. Bowers, Prec. Ch. 17; 2 Vem. 202, . (5037) Paoe. 296 95 , 493 272, 368, 390, 393 389, 395, 402, 403, 413, 414, 425, 433, 438, 445, 446, 449 525 545 545 394 149 301, 311 296 152 32 302 391 73 340, 348 507 484, 490, 504, 505, 549 334, 341, 477 100, 535 342 227 458 440 98 481 110,122,125 191,193,195, 207, 245, 390 214 477,480,494, 496, 499, 552 45, 47, 472 21 32,81,82, 272, 522 536 167, 398 XXXVI TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. "Where Reported. Page. Fane v. Fane, . . . L. E. 20 Eq. 698; 24 W. E. Dig. 260, 265, 491 , 545 Farington v. Parker, L. E. 4 Eq. 166; 16 L. T. (N.S.) 258, 410 Farley v. Bonham, . 2 J. & H. 177, 283 Farr v. Newman, . . 4 T. E. 621, 179 Farrer v. Close, . 10 B. & S. 553, 469 Faweett v. Oee, . . . 3 Anstr. 910, . . 104 Fenn v. Billeston, 7 Exch. 152, . . .... 156 Fen-wick v. Greenwell 10 Beav. 421, 51 — v. Laycock, 1 G. & D. 532; 2 Q. B. 108; 6 Jur. 346, 180 Fermor's Case, . . 3 Eep. 78 a; Jenk. 254, pi. 45, 197 Ferrars >>. Cherry, 2 Vern. 383, 207, 266, 368 Field, Ex parte, . . 13 Ch. D. 106; 28 W. E. 267, 95, 96, 252 — «i. Donoughmore 1 Dru. & War. 227, .... 435 — v. Lonsdale, . . 13 Beav. 78; 19 L. J. Ch. 560, . . . 437, 441 — v. Sowle, . . . 4 Euss. 112 491 Fife v. Bousfield, 6 Q. B. 100, 542 Filmer ». Gott, 4 Bro. P. C. 230, 266, 267, 2*0 Finch v. Shaw, . 19 Beav. 500, 197 — r. Winchilsea, 1 P. Wms. 277, 227 Firth, Ex parte, . . 19 Ch. D. 419; 51 L. J.(N.S.) Ch.473; 30 W. E. 529; 45 L. T. (N.S.) 120, 143, 144 Fisher, Ex parte, . L. E. 7 Ch. 636; 41 L. J. (N.S.)Bkcy. 62; 20 W. E. 849; 26 L.T.(N.S.)931 95,96,252 ' — o. Apollinaris Co., . . . L. E. 10 Ch. 297; 44 L. J. (N.S.) Ch. 500; 23 W. E. 460; 32 L. T. (N.S.) 628, ..... 311 — v. Owen, 8 Ch. D. 645; 47 L. J. (N.S.; Ch. 681; 26 W. E. 581; 38 L. T. (N.S.) 577, 539 Fitzer v. Fitzer, . . 2 Atk. 511, . . ... 33, 301, 310, 312 Fitzjames v. Moys, . 1 Sid. 133, . ... 192 Fitzmaurice r. Sadlier 9 Ir. Eq. Eep. 595, 247, 255, 283 Flavell, Be, Ex parte, Hopcraft, .... 14 W. E. 168 391 Fleetwood, In re, 15 Ch. D. 604; 49 L. J. (N.S.) Ch.514; 29 W. E. 45, 442 Fletcher, Ex parte, . 8 Ch. D. 218; 47 L. J. Bkcy. 70; 26 W. E. 439; 38 L. T. (N.S.) 229, . 149, 152 — n. Fletcher, 4 Hare, 67, . . . j 67, 167, 313, 390, 398,400, 458, 459 — v. Ketteman, 40 L. J. (N.S.) Ch. 624, 193. 514, 550 — v. Sedley, . 2 Vern. 490, . . . 18,20.279,546 Flory r. Denny, L. E. 7 Ex. 583; 21 L. J. Ex. 223, 113, 407 Flower v. Marten, 2 My. & Cr. 459 472, 473 — v. Sadler, 10 Q. B. D. 572; 9 Q. B. D. 83. 253, 311 Follett v. Wesley, . 10 Jur. (N.S.) 327, 99, 110 Forbes v. Forbes, . . 6 W. E. 92, .... 440 Ford v. Bayntnn, IDowl. 357, 180 — v. Gray, . . ., 1 Salk. 285, 383 — v. Kettle, . . 9 Q. B. D. 139; 51 L. J. (N.S.) Q. B. 558; 30 W. E. 741; 46 L. T. (N.S.) 666, 157 — r. Olden, L. E. 3 Eq. 461; 36 L. J. (N.S.) Ch. 651; 15 L. T. (N.S.) 558 502 — ; v. Stobridge, Nels. 24, 166 (5038) TABLE OF CASES. [The paging refers to the [*] pages.] XXXV11 Names of Cases. Ford v. Stuart, . . . Fordyce !•. Willis, Forshaw c. Welsby, . Forster r. Hale, . . Fort v. Clark, . . . Fortescue v. Barnett, Foster, In re, . . . — and Lister, In re — v. Great West- \ em Kail way Co., J Fothergill v. Fother- gill, Foulger v. Taylor, Fowkes v. Pascoe, Fowler r. Fowler, . — v. Foster, — v. Wyatt, Fox v. Hawks, — v. Mackreth, . . Foxley, Ex parte, Frampton v. Framp- ton, Francis v. Brooking, Franklin v. Thorne- bury, Fraser v. Thompson, Freeman v. Pope, . French v. French, Friends. Harrison, Fulton v. Andrews, Furber, Ex parte, — v. Abrey, . — v. Cobb, . Fursakera. Robin- son, Fury v. Smith, . . Where Eepoeted. 15Beav. 493, .... 3 Bro. C. C. 577, 30 Beav. 243; 30 L. J. (N.S.) Ch 331, 3 Yes. 696, . ... 1 Euss. 601, ... 3 My. & K. 36, 54 L. J. (N.S.) Ch. 73, 6 Ch. D. 87; 46 L. J. (N.S.)Ch.480; J •25 W. E. 553; 36 L. T. (N.S.)582| 8 Q. B. D. 515; 51 L. J. (N.S.) Q. B. 233; 30 W. E.398; 46 L.T.(N.S.)74, Freem. Ch. 257, 3 H. & N. 202; 1 L. T. (N.S.) 57, . . L. E. 10 Ch. 343; 44 L. J. (N.S.) Ch. 367; 23 AV. E. 538; 32 L. T. (N.S.) 545, .... 4 De G. & J. 250, 28 L. J. (N.S.) Q. B. 210, . . . 24 Beav. 232, 13 Ch. D. 822; 49 L. J. (N.S.)Ch.579; 28 W. E. 656; 42 L. T. (N.S.) 672,- Wh. & Tu. L. C. 6th ed. vol. 1, 141, L. E. 3 Ch. 515; 16 W. E. 831; 18 L. T. (N.S.) 862, 4 Beav. 287; 5 Jur. (N.S.) 980, . . . 19 Beav. 347, 1 Vern. 132, ... 4 De G. & J. 659; 1 Giff. 49, ... | L. E. 5 Ch. 538; L. E. 9 Eq. 206; 39 L. J. (N.S.) Ch. 148; 21 L, T.(N. S.) 816, 6 De G. M. Ch. 612, ;G. 95; 25 L. J. (N.S.) 2 C. & P. 584, L. E. 7 H. L. 472; 46 L. J. (N.S.)Ch. 131; 24 W. E. 979, 6 Ch. D. 181; 36 L. T. (N.S.) 668, . 1 C. & E. 186, 17 Q. B. D. 459, Prec. Ch. 475, 1 Hud. & Br. (Ir. Eep.) 735, . (5039) Page. 247,250,260, 266, 268,275,332, 342, 344 444 499, 501 444 383 449,450, 452, 454 258 218,224,247, 249, 284,285,287, 288, 290,292,293, 294, 295, 367 545 394 160 432, 445 482 147 487 422, 442 236' 95,96 32,312,446 I 300 476 79,89,91,332, 335, 337 14, 20, 36, 38, 39, 40, 42, 47, 49, 50. 51, 54, 55, 59, 60, 61,63,66,67,73, 75, 85, 163, 181, 519, 521, 545 14, 17, 22, 24, 32, 46, 47, 55, 59, 68, 69,79, 81,86,183, 464,530, 534, 535 469 498 154 139 139 390, 394 227 XXXV111 TABLE OF CASES. CThe paging refers to the [*] pages. ] Names of Cases. Gale v. Gale, — v. Lindo, . . — v. Williamson, Games, Ex parte, Gandy v. Gaudy, Gannon v. White, . . Gardiner v. Gar. diner, . — v. Painter, . . Gardner v. Marshall, — v. Shannon, . — -v. Smart, . . Gardnor v. Shaw, Gam v. Garn, . . . Garaett, In re, . — v. Bradley, . . Garrard v. Dinorben, — v. Landerdale, Garth v. Earnshaw, . — v. Ersfield. . . — v. Townsend, Gaskell v. Gaskell, . Gates v. Fabian, . . — v. Mowry, Gee v. Liddell, . . . General Meat Supply Assoc, v. Bouffler, George v. Milbank, . Gewen v. Eoll, . . Gibbins v. Phillips, . Gibbons v. Hickson, Gibbst). Grady, . — t - . Harding, Gibson v. Boutts, — v. Head, — r. Russell, Gilbert c. Overton, . Gilchrist, Ex parte, . — v. Cator, — i'. Herbert, . Giles ». Eoe, .... Gilham v. Locke, . . Wheee Reported. 6Ch. D. 144; 46 L. J.(N.S.)Ch. 809; 25 W. R. 772; 36 L. T. (NS.)690" 1 Vern. 475, . . 8 M. & W. 405, 12 Ch. D. 314; 27 W. R. 744; 40 L. J T. (N.S.) 789, ,. . 1 30 Ch. D. 57; 54 L. J. (N.S.) Ch. 1154; 33 W. R. 803; 53 L. T. (N.S.) 306. 2 Ir. Eq. Rep. 207, . . fc . . . '. 12 Ir. C. L. R. 365, . . Sel. Ca. Ch. 65, 14 Sim. 575, 2 Sen. & Lef. 230, 1 C. & E. 14 19 W. E. 753; 24 L. T. (N.S.) 319, 16 Ves. 268, 31 Ch. D. 1, 3 App. Cas. 944; 48 L. J. (N.S.) Ex. 186; 26 W. R. 698: 39 L. T. (N.S.) 261 5 Hare, 213, 2Russ&My.451, 3 Y. & C. 584, .' . Sir J. Bridg. 22, . • • { L. R. 7 Eq. 220; 17 W. R. Dig. 123, 2 Y. & J. 502, . . 19 W. R. 61, ... 15 Gray (Mass.) 564, 35 Beav. 621, . . 41 L. T. (N.S.)719;40L.T. (N.S.)126, 9 Ves. 190, •1 Cro. Jac. 132, . 6L. J. (O.S.) K. B. 209, ... 55 L. J. (N.S.) Ch. 119, . 41 L. J. (N.S.) Ch. 163; 20 W. R. 257, L. R. 5 Ch. 336; L. R. 8 Eq. 490: 39 L.J. (N.S.)Ch. 374; 18 W. R. 361, 4 M. & G. 169, . 17 W. R. 986, . 2 Y. & C. C. C. 104, 2H&M. 110, ... 17 Q. B. D. 521: 34 W. R. 709, 1 De G. & Sm. 188, 20 W. R. 348; 26 L. T. 381,' ' ' 2 Dickens, 570, 9 Ves. 612, ■...'.'.'.'.'..[ (5040) Page. 342, 343, 345, 346, 347,349,350,351, 353,359,360,391, 392 375 171, 175, 266, 268 11, 58, 64, 72, 85, 97, 98, 99, 100, 104, 106, 107, 110 111, 118, 125 303, 392, 400 447 258 193, 367 300 464 160 156 394 480 544 398 107,433,435, 463 311 111,203,210,213, 224, 225, 232 395 437, 476 369 120 443 476, 511, 512 80, 163, 222, 230, 316, 319. 320, 322, 326 202, 468 180 151 361 301, 304, 307, 309 101 92 487, 495, 496 428, 429, 447, 453 31 300 369 398 249, 256 TABLE OF CASES. [The paging refers to the [*] pages. ] XXXIX Names of Cases. Gillespie !•. Van Eg- mont, Girardy r. Richardson, Girling r. Lowther, Girton i*. Champneys, Gladstone «. Gladstone — v. Padwick, Glaister v. Hewer, . Glanvill, In re, . . Glave v. Wentworth, Gleaves v. Paine, . . Glegg r. Pees, '■[ Glossop v. Pole, Gloucestershire Co r. Phillips, Glover, In re, Goddard v. Carlisle, Godsal v. Webb, Godwin v. Kilsha. Goldicutt u.Townsend Goldsmith v. Pnssell, Goldstrom v. Taller- man, . . . . Gooch'sCase, . . . . Gooch v. Deakin, . . Goodchild v. Dougal, — v. Moses, . Goodricke v. Taylor, Goodright v. Moses, . Goodwin v. Goodwin, Goodwyn v. Good- ■wyn, Gordon, In re, ... — v. Gordon, Gorge's Case, . . Goring v. Nash, . Goss v. Neale, . — v. Quinton, Gough v. Everard, Graham v. Chapman, "Where Eepoeted. 6 Chy. 533, 1 Esp. 13, 2 Rep. Ch. 136, j 1 Bing. 201, 1 P. D. 442; 45 L. J. (N.S.) P. 82; 24 W. Ii. 739; 35 L. T. (N.S.) 380, . L. R. 6 Ex. 293; 40 L. J. (N.S.) Ex. 154; 19 Vf. R. 1064; 25 L. J. (N.S.) 96, 8 Ves. 199, 31 Gh. D. 532, . .... 6 Q. B. 173 n 1 De G. J. &. S. 87, L. R. 7 Ch. 71; 41 L. J. (N.S.) Ch. 243; 20 W. R. 193; 25 L. T. (N.S.) 621, 3 M. & S. 175, 12 Q. B. D. 533; 53 L. J. (N.S.) Q. B. 493; 32 W. R. 522; 50 L. T. (N.S.) 360, 2 J. & H. 186, 9 Price, 169, 2 Keen, 99, 2 Amb. 684, 28 Beav. 445, j 5 D.G. M. &G. 547; 25 L. J. (N.S.) J Ch. 232, 1 17 Q. B. D. 80; 34 W. R. 459, .... 5 Rep. 60 a, j 1 New R. 95, 3 Ch. D. 652; 24 W. R. 960, .... 2 W. Bl. 1019, 2 De G. & Sm. 135, 2 W. Bl. 1019, | 1 Ch. Rep. 92. 1 Ves. 226, L. R. 10 Ch. 192; 44 L. J. (N.S.) Ch. 208; 23 W. R. 760; 32 L. T. (N.S.) 348, 3 Sw. 400 Cro. Car. 550, 3 Atk. 188, | 5 J. B. Moo. 19 3 Man. & G. 825; 4 Scott (N.S.) 471, 2 H. & C. 1; 32 L. J. (N.S.) Ex. 210, 12 C. B. (N.S.) 85, (5041) Pagk. 224 469 164, 224, 225, 232. 467 537, 538 342 106 20 282 172 296 433, 435 179 26, 31 440, 441 484 446 395 67, 167, 373, 379, 380, 386 23, 54, 75, 79, 86, 170. 245, 249, 524, 525, 526, 527, 530, 546, 547 139 166, 193, 195, 197, 333, 518 100 294 328 59, 171, 252 191,192,193,220, 284, 287, 289 476 394, 395 483 276 200, 202, 234 275, 368, 390, 391, 395, 399, 564 107, 110, 111, 126 172 115, 152 252 xl TABLE OF CASES. fThe paging refers to the [*J pages. ] Names of Cases. Grahhm v. Furber, . — v. Johnson, — r. O'Keefe, Grant v. Grant, — v. Shaw, . Gray r. Gray, — v. Jones, . . . — r. Legard, . . — v. Mathias, Great Western Ry. Co v. Cripps, . . . . Greaves r. Houlditeh, Green, In re, . . . . — v. Attenborough, — v. Brand, — v. Patterson, . Greene r. O'Kearney, Greener, Ex parte, Greenslade v. Dare, Greenwood v. Green- wood, . Greer, In re, . . Gresley r. Mousley, Grey v. Kentish, Griffin v. De Veuille. — v. Stanhope, Griffith, Ex parte, . — v. Ricketts, Griffiths v. Robins, Grigsby v. Cox, . Grogan v. Cooke, Grosvenor r. Sherratt. Grove's Trusts, Se, Groves v. Groves, . Guardian Assurance Co. v. Viscount Avonmore, .... Guardians of St. Leon ard's, Shoreditch v. Franklin Gugen t: Sampson, . Gully v. Bishop of Exeter, . . . . Guthrie v. Wood, . . Where Reported. 14 C. B. (N.S.) 410; 2 C. & P. 452; 23 L. J. (N.S.) C. P. 51; 18 Jur. 226, . L. R. 8Eq. 36;38L. J. (N.S.) Ch.374; 17 W. R. 810; 21 L. T. (N.S.) 77. . 16 Ir. Ch. Rep. 1, 34 Beav. 624; 13 W. R. 1057; 12 L. T. '(N.S) 721, L. R. 7 Q. B. 700; 41 L. J. (N.S.') Q. B. 305, .... 2 Sim. (N.S.) 273, 14 C. B. (N.S.) 743; 2 New Rep. 281, 9 L. J. (O.S.) Ch. 80, 5 Ves. 286, . . 5 Hare, 91, . . 2 Price, 147, ... . . 11 Ir. Eq. Rep. 502, 3 H. & C. 468; 34 L. J. (N.S.) Ex. 88; 11 Jur. (N.S.) 141; 13 W. R. 185; ll L. T. 513, . ... Times Rep. (1886) 79, . . \ 32 Ch. D. 95; 34 W. R. 724; 54 L. (N.S.) 738, 2 Ir. C. L. R. 267 46 L. J. (N.S.) Bkcy. 76; 36 L. T. (N.S.) 781, . 20 Beav. 284, . 2 De G. & 8m. 28 Ir. R. 11 Eq. 502, 4 De G. & J. 78, 1 Atk. 2*0, . . 3 P. Wms. 131, . Cro. Jac. 454, 23 Ch. D. 69; 52 L. J. (N.S.) Ch. 717; 31 W. R. 878; 48 L. T. (N.S.) 450, 7 Hare, 307, . 3 Mad. 191, . . 1 Ves. 217, . . 2 Ball. & B. 233, 28 Beav. 659, 3 Giff. 575, . 3 Y. & J. 163, Page. Ir. R. 6 Eq. 391, 3 C. P. D. 377, . . . 4 F. & F. 974, 5 Bing. 171; 2 Moo. & P. 105, 1 Stark. 367, . . . (5042) 50, 62, 68, 118 483 266 407, 409, 421, 442 158, 160 438, 440 160 344 469 275 256 353 123 88, 98, 99, 106, 110 38, 41, 51, 258, 259,368,389,391, 392, 443 283, 285, 289, 294 95 505 270 258 502, 508 447 494 99, 212, 213, 370 102, 103 435 496 491, 492 20, 247 480, 481 300 389, 390, 47:; 318, 320, 321 542 46, 50,62,160 262, 267 134 TABLE OF CASES. [The paging refers to the [*] pages.] xli Names op Cases. "Where Reported. Guy v. Pearkes, . . H !■. "W . . . Haigh c. Kaye, Hale v. Allnut, . — v. Lamb, — v. Metropoli-\ Saloon Co., J Hales v. Cox, Halfpenny v. Ballet, •Hall, In re, — Ex parte, — Ex parte, . — v. Dyson, — r. Hall, — v. Hall, — r. Palmer, Hallas v. Robinson, Halton v. English, Hamer v. Tilsey, . Hamilton v. Chaine, — v. Hector, — (Duke of) v. Lord Mohun, — v. Malloy, — v. Eussell, Hamlyn v. Betteley, Hammersley v. De Biel, ...... Hammond v. Hocking Hammonds r, Barrett, Hams, In re, ... . Hanks v. Palling, Hanley v. Pearson, . Harcourt, In re, . . . Hardey v. Green, . . Hardham v. Roberts, Harding, Ex parte, — v. Harding, Hardwick, In re, . . 18 Ves. 197, 3 K. & J. 38-2 L. R. 7 Ch. 469; 41 L. J. (N.S.) Ch. 567; 20 W. R. 597; 26 L. T. (N.S.) 675, 18 C. B. (N.S.) 505, 2 Ed. 292, 4 Drew. 492; 28'L. J. (N.S.)Ch.777J 32 Beav. 118; 1 N. R. 344, . . . . I 2 Vern. 373, 14 Q. B. D. 386; 54 L. J. (N.S.) Q. B. 43; 33 W. R. 228; 51 L. T. (N.S.) 795, 1 V. & B. 112, . 19 Ch. D. 580, 17 Q. B. 785; 21 L. J. Q. B. 22,4, . .' L. R. 1 P. & D. 481, .... L. R. 8Ch. 430; 42 L. J. (N.S.) Ch. 444; 21 V. R. 373; 28 L. T. (N.S.) 383 3 Hare, 532 15 Q. B. D. 288; 54 L. J. (N.S.) Q. B. 364; 33 "W. R. 426, . . . 7 E. & B. 94, 1 John. 486, 7 Q. B. D. 319; 50 L. J. (N.S.) Q. B. 456; 29 W. R. 676; 44 L. T. (N.S.) 764, . L. R. 6 Ch. 701; L. R. 13 Eq. 511, . 1 P. Wms. 118, . . . '. . 5 L. R. Ir. 339, 1 Crouch (Amer.) 309, 5 C. P. D. 327; 49 L. J. (N.S.) C. P. 465; 28 W.R. 956; 24 L.T.(N.S.)373 12 CI. & F. 45, 12 Q. B. D. 291; 53 L. J. (N.S.) Q. B. 205; 50 L. T. (N.S.) 267, .... 17 W. R. 1078; 21 L. T. (N.S.) 321, . 10 Ir. Ch. Rep. 100, 6 E. & B. 659; 25 L. J. (N.S.)Q..B.375 13 Ch. D. 545; 41 L. T. (N.S.) 673, 31 W. E. 578, 12 Beav. 182, 1 Vern. 132, L. R. 15 Eq. 223; 42 L. J.(N.S.)Bkcy 30; 28 L. T. (N.S.) 241, 17 Q. B. D. 442, 55 L. J. (N.S.) Q. B.492; 34 W.R.775 (5043) Page. 18 312 470 96, 244, 245, 252 389, 390, 534 72,79,80,93,100, 113, 545 209, 228, 235,398, 400, 468, 535, 536 384, 386 139, 146, 149 223, 368 103 104 480, 497 461, 500, 501 398, 458, 469, 472 161 15S 22 143 312 494 258 3,120,312 142, 145 321, 372, 373,384 139 339 159 268 481, 482 407, 408 89, 92 394 151, 153 402, 404, 446,451 146, 147, 149 xlii TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Harland v. Binks, Harman v. Fishar, . -j- v. Richards, . Harms v. Parsons, . Harris v. Petherick, . — v. Pickett, . . — i). Tremenheere Harrison v. Cohen, . — v. Guest, — v. Southcote, Hart v. Hart, — v. Middlehurst, Hartopp v. Hartopp, Harvey v. Ashley, — v. Mount, Haselinton v. Gill, Hassells v. Simpson, Hatch v. Hatch, . . Hatton v. English, . — v. Neal, . . . Hauxwell, Exparte, . Hawes v. Leader, . . — v. Wyatt, . . Hawkins v. Allen, — v. Gathercole, Hawkyns?;. Obyn, . Haworth v. Bostock, Hayes v. Alliance Co., Hayman, Exparte, Haynes v. Haytin, . Haythorn v. Bush, . Heap v. Tonge, . . Heartley v. Nicholson, Heath v. Chadwick, . Heathcote v. Crook- shanks, Hedges v. Clark, . . Hegarty v. King, . . Heisierti. Clark, . . Henderson r. Lloyd. Henriques v. Bensusan Henry v. Armstrong, Henshall v. Fereday, Hepworth v. Heslop, Herbert v. Powis, . . Where Reported. 15 Q. B. 713 . . . ... Lofft, 472 10 Hare, 81, I 32 Beav. 328; 32 L. J. (N.S.) Ch. 247, 4 Q. B. D. 611; 48 L. J. (N.S.) Q. B. 521; 41 L. T. (N.S.) 146 4 H. & N. 5; 28 L. J. (N.S.) Ex. 197, 15 Ves. 40, 32 L. T. (N.S.) 719, 6 De G. M. & G.' 424; 8 H. L. C. 481, 1 Atk. 528, ; 18 Ch. D. 670; 50 L. J. (N.S.) Ch.697; 30 W. R. 8; 45 L. T. (N.S.) 13, . . 3 Atk. 377, 21 Beav. 259, 3 Atk. 607, 8 Beav. 439, 3 T. R. 620, 1 Doug. 89, 9 Ves. 296, i 7 E. & E. 94; 26 L. J. Q. B. 161, . . B. N. P. 90 a, 261 ; 1 Brownlow, 45, 23 Ch. D. 626;52L.J.(N.S.)Ch.737;\ 31 W. R. 711; 48 L. T. (N.S.)742, / Cro. Jac. 271 3 Bro. C. C. 156, L. R. 10 Eq. 246; 40 L. J. (N.S.) Ch. 23; 23 L. T. (N.S.) 451, 1 Sim. (N.S.) 63, 2 Atk. 549 4 Y. & C. C. C. 1, 8 L. R. It. 154, 8 Ch. D. 11; 47 L. J. (N.S.) Bkcy.54; 26 W. R. 597; 38 L. T. (N.S.) 238, 6 L. J. (O.S.) K. B. 231, ..... 2 Dowl. 641, 9 Hare, 90, L. R. 19 Eq. 233; 44 L.J.(N.S.)Ch. f 277;23W.R.374;32L.T.(N.S.)821| 2 Ph. 649, 2 T. R. 27 1 De G. & Sin. 343, 7'L. R. Ir. 18; 5 L. R. Ir. 249, . 2 Eq. Ca. Ab. 46 3 F. & F. 7, . . 20 "W. R. 350, . . 18 Ch. D. 668; 44 L. T. (N.S.) 918, '. 21 W. R. 240, .... 6 Hare, 561, .... 1 Bro. P. C. 355, (5044) Page. 107, 435 94 32, 58,80,93, 164, 262, 263,266,267, 268, 269 469 545 93, 252 552 96 248 539 304, 308 315 491 334, 336, 342,343 495, 496, 551 120, 123, 339 12,18 484,493,494, 507, 509, 552 158 191, 203, 241 95, 96, 149, 154, 252 69, 70, 470, 525 489 412 227 450 307 422, 423, 441 128 172 180 360, 362 402,403,404, 406, 407,417,439, 440, 445 522 389 296 498 315, 319 14, 24, 33, 50, 66 433 461, 485, 500,501 499 398 256 TABLE OP CASES. CThe paging refers to the [*] pages. 1 xliii Names of Cases. Where Reported. Page. •{ Herman !'. Jenchner, Heme v. Heme, . . Heron v. Heron, . . Hertford v. Lowther, Hervey v. Audland, . — ■ v. Hervey, . Hetherington v. Groome, Hewer, In re, — v. Cox, . . . Hewison v. Negus, . Hewitt v. Kaye, . . — v. Loosemore, — v. Eobinson, . Hey don's Case, Hicks v. Barfitt, Hickson v. Darlow, . Higden v. Watkinson, — i'. Williamson Higginbotham v. Holme, Higgins v. Pitt, . . — v. York Build ings Co., Higginson v. Kelly, . Hill, Ex parte, . . . — Ex parte, . . . '.} — v. Campbell, — 13. Bishop of Exeter, — v. G-omnie, . — v. Kirkwood, — v. Lane, — v. Wilson, HLllman, Ex parte, Hills v. Downton, . Hilton v. Eckersley, Hinder. Collins, . Hinde's Lessee ■«. Longworth, . . Hindley v. Westmeath Hindson v. Weatherill Hinton, Ex parte, . . — v. Hinton, . 15 Q. B. D. 561;-54 L. J. (N.S.) Q. B. 340; 33 W. E. 606; 53 L.T.(N.S.)94 Barnard. Ch. 430, 2 Atk. 160, 7Beav. 1;13L. J. Ch. 41, ... 14 Sim. 531, 1 Atk. 561, 13 Q. B. D. 789; 53 L. J. (N.S.) Q. B. 577; 33 W. E. 103; 51 L. T. (N.S.) 412, 21 Ch. D. 871; 51 L. J. (N.S. Ch. 991 30 W. E. 954; 46 L. T. (N.S.) 856, 3 E. & E. 428; 30 L. J. (N.S.) Q.B.73 16 Beav. 594; 22 L. J. (N.S.)Ch.655 j L. E. 6 Eq. 198;' 37 L. J. (N.S.) Ch. 633; 16 W. E. 835, . ... 9 Hare, 449, 15 W. E. 77 3 Eep. 7 a, 8 a, 4 Camp. 235, 23 Ch. D. 690; 31 W. E. 417; 48 L. T (N.S.) 449, . . . '. App. No. X., App. No. X., 19 Ves. 88, 4 Ex. 312, 2 Atk. 107, 1 Ball. & B. 252, 17 Q. B. D. 74 23 Ch. D. 695; 52 L. J. (N.S.)Ch.903 32 W. E. 177; 49 L. T. (N.S.) 278, L. E. 10 C. P.222; 44 L.J. (N.S.)C.P 97; 23 W. E. 336; 32 L. T.(N.S.)59 2 Taunt. 69, 1 Beav. 540, 28 W. E. 358 L. E. 11 Eq. 215 L. E. 8 Ch. 888; 42 L. J. (N.S.) Ch. 817; 21 W. E. 757; 29 L. T. (N.S.) 238, . . ' 10 Ch. D. 622; 48 L. J. (N.S.) Bkcy. 77; 27 W. E. 567; 40 L.T.(N.S.)177 5 Ves. 557, 6,E. &B. 47 Cro. Jac. 181 11 Wheaton, 199, . . 6 B. & C. 200, . . 5 De G. M. & G. 301, 14 Ves. 598 2 Ves. 631, . . (5045) 469 489 489 17 167, 390, 398,400 396, 397 139 153, 156, 157 159 247,276,281, 283, 285, 288, 290 409, 410, 430 197 455 204 181 137, 154 450 577 89, 338 104 • 528, 529 338, 339 160 102, 103 , 541 203,218,220, 262, 533 391, 392 155, 156 531 407 43, 217, 257, 259 394, 397 469 220 54 313 497 338 512 xliv TABLE OF CASES. [The paging refers to the [«] pages.] Names of Cases. Hinton v. Scot, . — v. Toye, . . Hitchcock f. Coker, . — v. Giddings Hobbs r, Hull, — v. Norton, . Hobday v. Peters, Hobson v. Thelluson, Hockley v. Mawbey, Hodges ('. Hodges, Hodgkin, Ex parte, Hodgkinson v. Fletch er, .... Hodgson r. Hutchen son, . — v. Newman. Hoffman v. Pitt, Hogan v. Healey, . Hogarth v. Phillips, Hoghton v. Hoghton, Holbird v. Anderson, Holdcraft's Case, . . Holderness v. Rankin, Holford v. Holford, . Hollamby v. Oldrieve, Holland v. Hodgson, Hollingsworth v. White, . . . . Holloway v. Hedding- ton, — i. Millard, Holman v. Lynes, . Holmes' Estate, lie, . Holmes v. Penney, . Holroyd v. Marshall, Holt v. Kelly, Homan, Ex parte, Homer v. Ashford, Where Reported. ••{ Moseley, 336, . . 1 Atk. 465, . . 6 A. & E. 438, . ... 4 Price, 135, 1 Cox, 446, 1 Vern. 136, . . 28 Beav. 603, L. R. 2 Q. B. 648; 15 W. R. 1037; 16 L. T. (N.S.) 837, . . 1 Ves. 143, 25 W. R. 162, L. R. 20 Eq. 746; 44 L.J.(N.S.)Bkcv. 107; 24 W. R. 68; 32 L. T. (NS.)62 4 Campb. 20, . . . 5 Vin. Ab. 522, . . 5T. R. 236, n., . 5 Esp. 22, . . 11 Ir. C. L. R. 119, 4 Drew. 360, 15 Beav. 278; 21 L. J 482; 17 Jur. 99, . Page. (N.S.) Ch. J . . . . ( L. J. (N.S.) C. 990; 26 L. T. (N.S.) 604, 5 T. R. 235, . Dver, 203 a, . . 6 Jur. (N.S.) 928 1 Ch. Ca. '217, . W. N. (186(5) 95, L. R. 7 C. P. 328; 41 P. 146; 20 W. R (N.S.) 709, 10W. R. 619; 6 L. 8 Sim. 324, . 1 Mad. 414, 4 De G. M. & G. 270, 3 Giff. 345, . 3 K. & J. 90; 26 L. J. (N.S.)Ch.l79 10 H. L. C. 191; 33 L. J. (N.S.) Ch. 193; 11 W. R. 171; 7 L. T. (N.S.) 172; 9 Jur. (N.S.) 213, 13 Ir. L. Rep. 33, L. R. 12 Eq. 598; 19 W. R. 1078. . . 3Bing. 322, . (5046) 297 207 469 268 247,306,310, 312, 531 197 51 435 33 30 149, 252 302 375, 384 106 114, 119, 126 . 335 430 434 202,321,480, 485, 488,489,491, 507, 552 33, 99, 105, 106, 108,109,110, 125, 252 in 528, 533 189, 219, 514 39, 245 115 154 294, 368,390, 447 4, 13. 40, 45, 46, 50, 53, 56, 63,75, 77. 516, 519, 520 502 493, 503 14, 31, 40, 47,48, 61, 64, 76, 80,82, 85, 93, 110, 111, 163,171,247, 250, 252, 339, 520,545 160, 161 50 151 469 TABLE OF CASES. [The paging refers to the [*] pages,] xlv Names of Cases. Honey wood v. Selwin, Hooman, Ex parte, \ Be Vining, . . J Hooper's Trusts, Be, Hooper v. Parmenter, Hope r. Harnian, . . Hopkins v. Myall, Horan v. Macniahon, Horn v. Baker, . — r. Horn, . . . Hornblower r. Proud, Home !>. Hughes, . . Horroeks c. Rigby, Horseman v. Gibson, Hospital of St. Kath-\ erine, Ex parte, . ) Horton r. Riley, Houghton v. Tate, Howard v. Harris, — r. Hodges, Howes r. Leader, . . Hudson's Case, Lady, Hughes v. Little, . . — v. Seanor, . . — r. Stubhs, . . — v. Wills, . . . Haguenin v. Basely, Hulme v. Tenant, . . Humble v. Mitchell, Hume v. Rundell, Humphreys v. Green, — r. Pensam, . . Hungerford v. Earle, Hunning v. "William- son. . . . . Hunsden r. Cheney, . Hunt v. Gateley. . . — v. Hooper, . . — v. Hunt, . . . — v. Maunsell, Hunter v. Atkins, — v. "Walters, . . Husband v. Pollard, "Where Reported. 3 Atk. 276, L. R. 10 Eq. 63; 39 L. J. (X.S.)Bkey. 4; 18 W. R. 450; :« L. T. (N.S.) 179, 6 W. R. 8:24, . ... 10 "W. R. 64S, . . ... HJur. (N.S.) 1097 2 Russ. & My. 8(i, 15 L. R. lr. '471, Sm. L. C. 8th ed. vol. 2, 214, . . Amb. 79, 2 B. & Aid. 327, 6 Q. B. D. 676; 29 W. R.576; 44 L. T. (N.S.) 678, 9 Ch. D. 180; 47 L. J. (N.S.) Ch. 800; 26 "W. R. 714; 38 L. T. (N.S.) 782, Fortesc. 32; Plowd. 36, .... 17 Ch. D. 378; 29 W. R. 405; 44 L. T. (N.S.) 324, 11 M. & W. 492, 3 Y. & J. 486, 1 Vern. 190, 1 Selw. N. P. 80, . Cro. Jac. 271, Prec. Ch. 235, 17 Q. B. D. 204; 34 "W. R. 703, . 18 "W. E. 108, 1 Hare, 476, . ... 9 Hare, 749, 14 Ves. 290, I Bro. C. C. 17; 1 "Wh. & Tu. L. C. 6th ed. vol. 1. 536, II A. & E. 205, 6 Mad. 331, 10 Q. B. D. 148; 52 L. J. (N.S.) Q. B. 148; 48 L. T. (N.S.) 60; 47 J. P. 244 1 My'. & Cr. 580,' .'.'.. . '. '. 2 Vern. 261;Freem. Ch. 120, . . j 10 Q. B. D. 459; 52 L. J. (N.S.) Q. B. 400; 31 "W. E. 924;, 48 L. T. (N.S.) 392, 2 Vern. 150, F. Moo. 154, 12 M. & W. 664, 4 De G. F. & J. 221; 31 L. J. (N.S.) Ch. 161, 1 Dow, 211, 3 My. & K. 113, | L. R. 7 Ch. 75; 41 L. J. (N.S.) Ch. 175; 20 W. R. 218; 25 L. T. (N.S.) 765, 2 P. "Wms. 467, (5047) Page. 539 151, 158, 160 300 158 453 395 499, 501 135 18 17 148, 155 254, 257 537 544 104 37 467 469 19 459 139 267, 481, 496 436, 440, 444 395 461,480,483,487, 493, 495, 496, 497, 499, 503, 504, 551 26 17 394 374, 375 67, 75, 76, 112 210, 531 539 197 242 33 301, 309, 314, 331 167, 518 461, 485, 486, 493, 495, 502, 552 198 390 xlvi TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Hutson v. Cruttwell, Huxtable, Ex parte, . Hyde v. Price, . . . Hylton v. Hylton, . . Ibberson v. Neck, . Imray v. Magnay, Inglissi). Grant, . . Irn'ham i>. Child, . Ir.)ns o. Smallpiece, Irwin v. Rogers, Isaac v. Hughes, — v. Spilsbury, Ithell v. Beane, Izard, Ex parte, Jackman v. Marshall, Jackson, Ex parte, — In re, — v. Bowley, . — v. Lomas, . . — v. Town, . . James v. Bydder, . . — v. Couchrnan, — v. Holmes, . . — v. James, . . . Jameson v. Stein, . . Janes v. Whitbread, . Jarman v. Woolloton, Jarratt v. Aldam. Jason v. Jervis, . . Jay, Ex parte, . , . Jeffreys v. Jeffreys, . Jenkins v. Keymis, . Jenkinson, In re, . . Where Eepobted. 1 E. & B. 15, 2 Ch. D. 54 ; 45 L. J. (N. S. ) Bkcy. 59 ; \ 24 W. E. 685; 34 L. T. (N.S.)605, f 3 Tes. 446 2 Ves. 547 Times Eep. (1886) 411, 11 M. & W. 267, . . . 5 T. E. 530, 1 Bro. C. C. 92, 2 B. & Aid. 552, 12 Ir. Eq. Eep. 159, L. E. 9 Eq. 191; 39 L. J. (N.S.) Ch. 379; 22 L. T. (N.S.) 11, . . . 10 Bing. 3, 1 Ves. 215, | L. E. 9 Ch. 271 ; 43 L. J. (N.S.) Bkcy. 31; 22 W. E. 342; 30 L T. (N.S.) 7, 13 Ves. 581, 14 Ch. D. 725; 29 W. E. 253; 43 L. T. (N.S.) 272, 4Ch. D. 682; 46 L. J. (N.S.) Bkcy. 39; 25 W. E. 382; 35 L. T. (N.S.) 947, Car. & M. 97, 4 T. E. 166, 4 Cowen, 604, 4 Beav. 600, 29 Ch. D. 212; 54 L. J. (N.S.) Ch. V 838;33W.E.452;52L.T.(NS)344, / 4 De G. F. & J. 470; 31 L. J. (N.S.) Ch. 567 19 L. T. (N.S.) 809, 21 Beav. 5, 11 C. B. (N.S.) 406, 3 T. E. 620, L. E. 9 Eq. 463; 39 L. J. (N.S.) Ch. 349; 22 L. T. (N.S.) 192, 1 Vern. 284, L. E. 9 Ch. 697; 43 L. J. (N.S.) Bkcy. 122; 22 W. E. 907; 31 L. T. (N.S.) 260 Cr. & P. 138, J 1 Lev. 150; Hard. 395, 15Q. B.D. 441 ;54L. J. (N.S.) Q. B. 601^ (5048) Page. 252 32, 39, 42, 50, 58 163 303 484, 494 412 33, 171, 175, 176, 177, 178, 179 98 470 407 552 366, 412 180 343,346,352,353, 359 96, 152 104 140, 154 154 41, 47 104 54 405, 441 461, 477, 481, 482, 552 492 408 431 386 98, 99 124, 339, 340 477, 505, 506 369 151 272,389,390,391, 392, 393, 412,425, 457 112,191,214,343, 344, 345, 353, 356, 361, 363 135 TABLE OP CASES. [The pagtag refers to the [*] pages.] xlvii Names of Cases. Jenkyn v. Vaughan, Jenner v. Jenner, . . Jennings v. Selleck, . Jennings v. Throgmor- ton, Jerdein v. Knight, . Jeston v. Key, . . . Jewitt v. Eckhardt, Jewson r. Moulson, Jezeph c. Ingram, Jodrell i'. Jodrell, Johns r. James, . . Johnson, Ex parte, In re. — v. Ball, . . . — v. Holdsworth, — v. Legard, . — v. Ogilby, — v. Osenton, Johnston v. Johnston, Jones, Ex parte, . . — v. Ashurt, . . — v Badley, . . — v. Baugh, . . — v. Boulter. — v. Croucher, . — v. Godrieh, . . — v. Harris, . . — v. Jones, . . . — v. Lewis, . . . — v. Lock, . . — v. Marsh, 3 Drew. 419, 2 De G. F. & J. 359, 1 Vern. 467, Ry. & Mood. 251, 2 J. & H. 325, L. R. 6. Ch. 610; 40 L. J. (N.S.) Ch. 503; 19 W. R. 864; 25 L. T.,(N.S.) 552 8Ch.'L\ 404; 26 W. R. 415, . . . 3 Atk. 421, . .... 8 Taunt. 838, . ... 9 Beav. 53, 8 Ch. D. 744; 47 L. J. (N.S.) Ch. 853; \ 26 "W. R. 821; 39 L. T. (N.S.) 54, / 26 Ch. D. 348; 53 L. J. (N.S.) Ch. 763; 32 W. R. 693; 50 L. T. (N.S.) 214, 51 L. J. (N.S.) Ch. 503; 20 Ch. D 389; 51 L. J. (N.S.) Ch. 154; 46 L. i T. (N.S.) 772, ...... Where Reported. 5 De G. & Sm. 85, 1 Sim. (N.S.) 106, T. &R. 281; 3 Mad. 283, . . 3 P Wms. 279 L. R. 4 Ex. 107;' 38 L.'j.'(N.S.j Ex. 76; 17 W. R. 675; 19 L. T. (N.S.) 793 32 w. R. ibie," .......... 12 Ch. D. 484; 48 L. J. (N.S.) Bkcy. 109; 40 L. T. (N.S.) 790, Skin. 357, L. R 3 Ch. 362; 16 W. R. 713; 19 L. T. (N.S.) 106, Vin. Abr. vol. 22, E. 1, . 1 Cox, 288, | 1 S. & S. 315, 5 Moo. P. C. 40, L. R.7 Q. B. 157; 41 L. J. (N.S.) Q. B. 6 ; 20 W. R. 143; 25 L. T. (N.S.) 702, 31 L. J. (N.S.) Ch. 535; 23 W. R. 1, 2 Ves. 240, L. R. 1 Ch. 25; 11 Jur. (N.S.) 913; 35 L. J. (N.S.) Ch. 117; 14 W. R. 149; 13 L. T. (N.S.) 514, Ca. t. Talb. Forr. 64, { (5049) Page. 20, 57, 62, 63, 64, 74, 75, 111, 516, 518, 519, 520, 526 491 196 469 400 336, 337, 341 412 300, 450 129, 131. 133 301 107, 433, 434, 435, 463 ( 142, 252 13, 14, 15, 32, 34, 35, 38, 50, 56, 57, 78, 79, 80, 81,83, 84, 85, 86, 93, 99, 127, 246, 247, 249, 268,271,276,280, 522, 525 442- 227 246, 315, 316, 342, 344, 361, 512, 513, 534 311 99, 149 335 28 71 431 467 56, 79, 99, 247, 260, 283, 363, 539 7, 204 498 157, 158, 159 453, 458 51 405, 440, 443, 444 246, 247, 249, 365, 366 xlviii TABLE OP CASES. [The paging refers to the [*] pageB.] Names of Cases. Jones v. Purefoy, — v. White, — v. Whittaker, — v. Win-wood, Jordan v. Money, . Joseph v. Lyons, Joyce v. Hntton, . Judd v. Green, . Justice v. Wynne, Karet v. The Kosher } Meat Supply Asso- V ciation, Limited, . J Keenan v. Handley, . Keir v. Leeman, Keith r. Pratt, . . . Kekewictm Manning, Kelly, Ex parte, . . — ■ v. Walsh, Kelson v. Kelson, . Kempland v. Macaulay Kgmpson v. Ashbee, Kennard v. Kennard, Kennedy v. May, — v. Ross, . . Kenney v. Browne, . Kensington e. Chant- ler, Kent c. Prat, Wheke Reported. — v. Riley, Keoghu. M'Grath, Ker v. Ker, . Kerrison's Trusts, In re, — v. Dorrien, . . Kettle v. Townsend, Kevan v. Crawford, . 1 Vern. 46, 5 Bing. N. C. 341, . . . Longfield & T. Ir. Ex. 141, . . 10 Sim. 150, 5 H. L. C. 185, 15 Q. B. D. 280; 54 L. J. (N.S.) Q. B 1;33W. R. 145; 51 L. T. (N.S.) 740, 12 Ir. Ch. Rep. 71; 11 Ir. Ch. Rep. 123, 4 Ch. D. 784; 46 L. J. (N.S.) Ch. 257; 25 W. R. 293; 35 L. T. (N.S.) 873, 12 Ir. Ch. Rep. 289 2 Q. B. D. 361; 46 L. J. (N.S.) Q. B. 548; 25 W. R. 691; 36 L. T. (N.S.) 694, 2DeG. J. &S. 283, 13 L. J. (N.S.) Q. B. 359, . . . . 10 W. R. 296 . . 1 De G. M. & G. 176, . . . HCh.D. 306; 48 L. J. (N.S.) Bkcy.65 27 W. R. 830; 40 L. T. (N.S.) 404, 1 L. R. Ir. 275, 10 Hare, 385; 22 L. J. (N.S.) Ch.745 17 Jur. (N.S.) 129, . . . Peake, 65; 4 T. R. 436, .... L. R. 10 Ch. 15; 44 L. J. (N.S.) Ch. 195; 23 W. R. 38; 31 L. T. (N.S.) L. R.' 8Ch. 227; 42 L.' J.' (N.S.) Ch. 280; 21 W. R. 206; 28 L. T. (N.S.) 83, 11 W. R. 358; 7 L. T. 829, . . . 2 Const. (S.C.,Amer.) 125 3 Ridg. 518, . . 2 Man. & S. 36, 1 Brownl. 6, L. R. 14 Eq. 190; 41 L. J. (N.S.) f Ch. 569; 20 W. R. 852; 27 L. T. (N.S.) 263, , 5 L. R. Ir. 478, . ... I. R. 4 Eq. 21, L. R. 10 Eq. 422; 40 L. J. (N.S.) Ch. 637; 19 W. R. 967; 25 L. T. (N.S.) 57, . 9 Bing. 76, 1 Salk. 187; 1 Eq. Ca. Ab. 122, . 6 Ch. D. 29; 45 L. J. (N.S.) Ch. 658, { (5050) Page. 241 313 237, 239, 241 71 384 160 283, 293, 390, 391 219, 315 452 148, 154 249, 253, 313 311 458 204, 223, 361,389, 390,401,402,405, 418, 445, 449,452, 454, 458, 476 104 441 267 174 484, 489, 496, 504, 505. 5U6, 508 394, 395, 396 389 120 514 18 253 38, 39, 40, 42, 45, 46, 50, 51, 55, 61, 75,171, 522,546, 548 481 535. 536 76, 479 220 394, 397 79, 80, 91, 332, 335, 502, 522 TABLE OF CASES. [The paging refers to the [*] pages. J xlix Names of Cases. Kidd i: Rawlinson, . Kiddill v. Farnell, . Kidney v. Coussmaker Kincald's Trusts, In re Kinchant t>. Kinchant Kinderly v. Jervis, King, In re, . . . — Ex parte, — v. Anderson, — v. Brewen, . — r. Cotton, — v. Keating, — f. King, . — v. Marissal, Kingdom v. Bridges, Kinloeh v. Secretary ") of State for India [■ in Council, ) Kirk v. Clark, . Kirwan v. Cullen, — v. Richards, . Kitchen v. Dixon, . . Knatchhull u. Kis- sane, Knight v. Knight, Knightly, Ex parte, . Knott, Ex parte, . . Kyne v. Moore, Kronheim v. Johnson Lacey v. Lugle, . . . Lackersteen v. Lacker steen, Lacon v. Liifen, . Lainson v. Tremere, . Lake v. Billers, . . . Lalor v. Lalor, . . . Lamb v. Bruce, . . — 11. Munster, Lambe v. Orton, . . Lambert's Case, Lambert v. Northern Railway of Buenos Ayers Co., . . 4 STAT. OF ELIZ. Where Reported. 2 B. & P. 59, 3 Sm. & G. 428, 12 Ves. 148, . . 1 Drew. 326, 1 Bro. C. C. 369, 22 Beav. 1, 14 Ch. D. 179; 44 L. J. (N.S.) Ch. \ 73; 28 W. R. 344, j" 2 Ch. D. 256; 45 L. J. (N.S.) Bkcy. . 109; 24 "W. R. 559; 34 L. T. (N.S.) 466 8 It. R. Eq. 147, 2 Bro. C. C. 93, 2 P. Wms. 674 12 Chy. 29, 3 Jur. (N.S.) 609, 3 Atk. 192 2 Vera. 67, 7 App. Cas. 619; 51 L. J. (N.S.) Ch. 885; 30 W. R. 845; 47 L. T. (N.S.) 133; 15 Ch. D. 1, .... Prec. Ch. 275, 4 Ir. Ch. Rep. 322, 5 Hare. 493, ... Gouldsb. 116 pi. 12 30 W. R. 844, 5 Dow. 389, L. R. 18 Eq. 487; 43 L. J. (N.S.) Ch. 611; 22 W. R. 792, . 51 L. J. (N.S.) Ch. 823 11 Vis. 609, .... 2 S. & S. 260, . 7 Ch. D. 60; 47 L. J. (N.S.) Ch. 132: 26 W. R. 142; 37 L. T. (N.S.) 751, 2 Phil. 413, 5 Jur. (N.S.) 1111, 32 L J. (N.S.) Ch. 315; 9 Jur. (N.S.) 77; 11 W. R. 474; 7 L. T. 774; 32 L. J. (N.S.) Ch. 25 1 A. & E. 792, 1 Ld. Raym. 733, 4 L. R. Ir. 351, 45 L. J. (N.S.) Q. B. 538; 24 W. R. 645; 35 L. T. (N.S.) 425, . . 52 L. J. (N.S.) Q. B. 46; 31W.R. 117; 47 L. T. (N.S.) 442, 1 Dr. & Sm. 125, Shep. Touch. 65, 18 "W. R. 180, Page. 114, 119, 125, 126, 127, 131, 132, 133 412, 420 39, 47, 63,65,166,. 518 300 491 226, 227 425, 427, 450, 452,. 455, 457 95, 96 493, 496, 509 170, 247, 301 348, 474 53 491 70, 72 20 433 315, 319 485, 495, 552 435 19, 69 315 29, 296 157, 159 225 469 443; 446 225 -481, 482 252 378, 383 171, 176, 464' 219 156, 157, 158, 160 > 539 446, 450, 453. 114 393 (5051) TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Where Reported. Page. Lambert v. Overton, Lancaster, Ex parte, Lance v. Norman, . . Langley v. Brown, . Langton v. Horton, . Lanham v. Pirie, Lanoy v. Athol, . . Larchin v. North ~| Western Deposit !• Bank, ... J Larkins v. Paxton, Larrett v. Bank of England, .... Lassells v. Comwallis Lassence v. Tierney, Latimer v. Batson, Latkow v. Earner, La Touche v. Luean, Laughlin p. Ferguson Lavender r. Blakstone Law v. London, &c, Policy Co., . . . Lawley v. Hooper, . Lay ton v. Lay ton, Lazarus v. Andrade, Leach v. Dean Leake v. Young, Learmouth v. Miller, Leatham v. Amor, Lechmere r. Carlisle, Lee v. Barnes, — v. Hart, — ■ v. Henley, — i!. Magrath, — v. Mathews, Lee & Hemingway Be, . ... Legard v. Johnson Legg v. Goldwire, Leicester v. Rose, Leifchild's Case, . Leigh v. Winter, . Leman v. Whitley, Lenthal's Case, Leonard v. Bacon, — v. Baker, . Leopard v. Vernon, 13 AV. R. 227; 11 L. T. (N.S.) 503, . 25 Ch. D. 311; 53 L. J. (N.S.) Ch. 1123; 32 W. R. 483; 50 L. T.(N.S.) 223, 2 Rep. Ch. [79] 41, 2 Atk. 195, ... 1 Hare, 549, 3 Jur. (N.S..) 704; 1 Hare, 549; 2 Jur. (N.S.) 753, 2 Atk. 444, L. R. 10 Ex. 64; 44 L. J.(N.S.)Ex.71 23 W. R. 325; 33 L. T. (N.S.)' 124, 2 Beav. 219, ... ... W. N. (1886) 47, Prec. Ch. 232, .... 1 Mac. & G. 551, 4 B. & C. 652, .... | 2 H. Bl. 437, 7 CI. & F. 772, 6 Dana (Kentucky), 117, . . . 3 Keb. 526; 2 Lev. 146, . • • • { 1 K. & J. 223, ... 3 Atk. 279, I Sm. & Giff. 179, 5 C. P. D. 318; 49 L. J. (N.S.) C. P. 847; 29 AV. R. 15; 43 L. T. (N.S.)30 L. R. 1 Ch. 461, 5 E. & B. 955, L. R. 2 H. L. Sc. 438, 47 L. J. (N.S.) Q. B. 581, . . . 3 P. AVms. 222, . . . , 17 Q. B. D. 77; 34 W. R. 640, . . . II Ex. 880; 25 L. J. Ex. 135; 2 Jur. (N.S.) 308, 1 A r ern. 37, 10 L. R. Ir. 45, j 6 L. R. Ir. 530 24 Ch. D. 669; 32 W. R. 226; 49 L. T. (N.S.) 155, . 3 Ves. 352, Ca. t Talb. Forr. 20, . 4 East 372 L. E. 1 Eq.' 231;'li jur. (N.S.) 941," AV. Jo. 411, ... 4 Russ. 423 2 Vern. 44, Cro. Eliz. 234 1 Man. & S. 251, .... 2 y. &b. si, ; . ; (5052) 405, 413 103 223 266 227 460, 475, 553 365 158, 160 108 503, 553 31 372, 381 99, 119, 126, 127, 131, 132, 133 179 435 120 189,212,214, 283, 371 20 4 300 161 207, 208, 513 95 41, 50, 68 161 167, 342, 534 139 244 391 406,416,423, 439, 441,454, 455, 457 247, 258 544 ' 301, 312 369 104 266 211, 212 443 71 71 99, 133 412 TABLE OF CASES. [The paging refers to the [*] pages. J li Names op Cases. Where Reported. Page. Lester «. Garland, 5 Sim. 205, ... 334, 339 L'Estrange r. Robin- son, 1 Hog. 202, 375, 377 Leukener v. Free- man, Freem. Ch. 236; Prec. Ch. 105, . . 165,230, 234, 532 Levy v. Creighton, . 22 W. R. 605, 219, 248, 266 — r. Polack, 52 L. T. (N.S.) 532; W. N. (1885)76, 139, 162 Lewis, Ex parte, . . L. R. 6 Ch. 626; 19 W. R. 835; 24 L. T. (N.S.) 785, 151, 152 — v. Butler, . . 16 W. R. 681, 339 — v. Davis, . . L. R. 10 Ex. 86; 44 L. J. (N.S.) Ex. 86; 23 W. R. 635, \ 542 — v. Nangle, Amb. 150, .... 284 — v. Rees, . . 3 K. & J. 132, 239, 241 ■Leyland v. Stewart, . 4 Ch. D. 419; 46 L. J. (N.S.) Ch. 103; 25 W. R. 225, 412 Liddlow v. Wilmot, . 2 Stark. N. P. C. 86, . ... 302 Life Assurance of Scot- land v. Siddall, . . 7 Jur. (N.S.) 785, 507, 509 Lilly v. Osborn, . 3 P. Wms. 298, . 13, 45 Lincoln v. Wright, . 4 De G. & J. 16 470 Lincoln "Wagon Co. v. Mumford, . . 41 L. T. (N.S.) 655, . ... 152 Lindon v. Sharp, . . 6 Man. & G. 895, 94, 118, 121 Lindsay Petroleum Co. v. Hurd, L. R. 5 P. C. 201; 22 W. R. 492, . . 507 Lister v. Hodgson, . L. R. 4 Eq. 30; 15 W. R. 547, . . { 300,391,440, 444, 480, 481, 482 — v. Turner, . . 5 Hare, 281, .. . . . j 164,192,219, 513, 514, 527, 549 Little v. Hughes, . . 17 Q. B. D. 204, 139 Liverpool Commercial Co. c. Richardson, . 55 L. J. (N.S.) Q. B. 455 139 Liverpool & London Guarantee Co., Be, 30 W. R. 378; 46 L. T. (N.S.) 54, . . 103 LlanellyRy.&DockT Co. v. London & [ North-Western 1 Ry. Co., .... J L. R. 7 H. L. 550; 45 L. J. (N.S.) Ch. 539; 23 W. R. 927; 32 L. T. (N.S.) 75, 244 Lloyd v. Attwood, . 3 De G. & J. 614, 49, 197 — v. Chune, . . 2Giff. 441, . 398, 431, 441 — v. Clark, . . . 6 Beav. 309, 480 — v. Fleming, L. R. 7 Q. B. 299; 41 L. J. (N.S.) Q. B. 93; 20 W. R. 296, . . 411 — v. Johnson, 1 B. & P. 340, 469 Lockwood 11. Salter, . 5 B. & Ad. 303, 25, 26 Lockyer v. Savage, . 2 Stra. 947, 338 Loeffes v. Lewen, . . Prec. Ch. 370, 67, 371 Logan n. Birkett, . . 1 My. & K. 225, 306, 312 Lomas v. Wright, . 2 My. & K. 769 67, 167, 398, 535 Lomax v. Buxton, L. R. 6 C. P. 107: 40 L. J. (N.S.) C. P. 150; 19 W. R.441; 24 L. T. (N.S.) 137, 96, 245, 252 London, &c. , Loan Co. 12C. B. (N.S.) 730, 157 (5053) Hi TABLE OF CASES. [The paging refers to the [*3 pages.] Names of Cases. Whebe Eepobted. Tage. London & Provin- cial Bank v. Bogle Long v. Donegan, . Longdale v. Longdale Longford v. Purdon, Longman v. East, . . Lovell v. Wallace, Loveridge v. Cooper, Lovick v. Crowder, . Low v. M'Gill, . » Lowe v. Fox, .... — «. Peers, . . . Lowenthal, In re, . . Lowson v. Copeland, Loxley v. Heath, Lucas v. Lucas, . Lucena v. Lucena, Luckin v. Hamlyn, Lucy's Case, .... LudersD. Antsey, . . Lulharn, Be, . . . Lumley v. Desborough — v. Simmons, Lush's Trusts, In re, Lush v. Wilkinson, Lynch v. Lynch, Lyon v. Home, . . Lyons v. Tucker, . Lyttleton v. Cross, McAulay v. Clarendon Miiccallum v. Turton, MeCerthy v. Goold, . M'Curthy v. M'Carthy McClellan v. McClel- lan, McClintock v. Ashe, . McCormick r. Crogan, McCue v. James, . . McCulloch v. Bland, . Macdona v. Swiney, . 7Ch. D. 773; 47 L. J. (N.S.) Ch. 301; 26 W. R. 573; 37 L. T. (N.S.) 780, 21 W. E. 830 lVern. 456, 1 L. R. Ir. 75 3 0. P. D. 142; 47 L.J. (N.S.)C.P.211; 23 W. R. 183; 38 L. T. (N.S.) 1, 50L.T. (N.S.) 681, 3Russ. 30, 8B. &C. 132; 2Man.&R.84, . 12 W. R. 826; 10 L. T. (N.S.) 495, 15Q. B.D. 667; 54 L. J. (N.S.) Q. B. 561; 34 W. R. 144, 4 Burr. 2225; Wilrn. 364, 13 Q. B. D. 241 ; 43 L. J. (N.S. ) Bkcy. 132; 22 W. R. 459; 30L.T.(N.S.)282 2Bro. C. C. 156, 27 Beav. 523, lAtk. 270; West (t.H.), 456, . . . . 5 Beav 249 18 W. R. 43;21L. f. (N.S.) 366, '. '. 2 De G. M. & G. 353, ... 4 Ves. 501, 33 W. R. 788; 53 L. T. (N.S.) 9; 32 W. R. 1013, .... ... 22 L. T. (N.S.) 597, 55 L. J. (N.S.) Q. B. 579, L. R. 4 Ch. 591; 38L.J.(NS.)Ch.650; 17 W. R. 974; 21 L. T. (N.S.) 376, 5 Tes. 384, ... 4 L. R. Ir. 210, L. R. 6 Eq. 655; 27 L. J. (N.S.) Ch. 674; 16 W. R. 824; 18 L. T. (N.S.) 451, 7 Q. B. D. 523; 50 L. J. (N.S.) Q. B. 661; 45 L. T.(N.S.)403; 6 Q.B.D.663 3 B. & C. 322 8 Ir. Ch. Rep. 568, 2 V. & J. 186 1 Ball. &B..387, 1 H. L. C. 703; 9 Ir. Eq. Rep. 620, . 29 Ch. D. 495; 54 L. J. (N.S.)Ch.659; 33 W. R. 888; 52 L. T. (N.S.) 741, 2LaivRec. (N.S.) 45 L. R. 4 H. L. 82, 19 W. R. 158, 2Giff. 428, 8 Ir. C. L. R. 73, \ [ (5054) 28 501, 502 409 480, 498 544 276 453 171,174,177, 178, 180 317 509 469 523 50 384 444 394 159, 160 276 384 258,259, 513, 514 462, 469, 478 139 300 37, 41, 47, 50, 57, 163,516,517, 520, 525 292 483,495,496, 506, 551 150, 155, 465 108 277 539 18, 19, 25 495 544 204, 297 230, 234, 431 159, 160 410 118,121, 126, 132 TABLE OF CASES. [The paging refers to the [*] pages. ] liii Names of Cases. M'Donagh's Estate, In re, M'Donnell v. Hesil-\ rige, . . J M'Fadden r. Jenkyns M'Gonnell v Murray, Macgregor v. Dover & Deal Railway Co., M'Hattie, Ex parte, Mackay, Ex parte, — v. Douglas, — v. Meredith, Mackenzie, Ex parte, McKewan v. Sander son , . . Mackie v. Herbertson Mackinnon v. Stewart Mackintosh r. Stuart, Mackreth v. Jackson M'William's Case, . Maddever, In re, . , Madox v. Nolan, . , Magdalen College Case, Maggi, In re, ... Where Reported. 3 L. R. Ir. 408, 16 Beav. 34G, . 1 Hare, 460, . . Tr. R. 3 Eq. 4G0, 18 Q. B. 618, 10 Ch. D. 398; 48 L.J.(N.S.)Bkcy.26 27 W. R. 327; 39 L. T. (N.S.) 373, L. R. 7 Ch. 643; 42 L. J. (N.S.) Bkcy 68; 21 W. R. 664; 28 L.T.(N.S.)828 r L. R. 14 Eq. 106: 41 L. J.(N.S.)Ch. 539; 20 W. R. 652; 26 L.T.(N.S.) Maguire r. Dodd, . . — v. Nicholson. Mair v. Glennie, . . Maitland v. Backhouse — v. Irving, Makeown v. Ardagh, Malcolm v. Scott, Malet, He, Maltby v. Russell, , Mander v. Harris, Manders v. Manders, Manning v. Gill, . . Mantonc. Moore, . . Mara v. Ray, . . . . 34 W. R. 433, 42 L. J. (N.S.) Bkcy. 25 27 L. T. (N.S.) 157, .... 9 App. Cas. 3*7; 34 W. R. Dig. 176 ISim. (N.S.) 89, 36 Beav. 21, 1 M. & S. pt. 2, 408, n., . ... 1 Sch. & Lef. 169, 27 Ch. D. 523; 52 L. J. (N.S.) Ch. 733; 31 W. R. 720, Beatty, C. C. 632, 11 Rep. 66 b, 72 a, 74 a, b, 20 Ch. D. 545; 51 L. J. (N.S.) Ch.560 30 W. R. 729; 46 L. T. (N.S.) 326, 9 Ir. Ch. Rep. 452, Beatt. 592, 4M. &S. 240, ... ... 16 Sim. 58, . . • 15 Sim. 437, I. R. 10 Eq. 445, 3 Hare, 39, . . ..... 30 Beav. 407, 2 S. & S. 227, 27 Ch. D. 166; 54 L. J. (N.S.) Ch.143; 32 W, R. 941; 51 L. T. (N.S.) 380; 24 Ch. D. 222 4 Ir. Eq. Rep. 434, j L. R. 13 Eq. 485; 41 L. J. (N.S.)Ch. 736; 20 W. R. 357; 26 L.T.(N.S.)14 7 T. R. 71, W. N. (1872) 127 (5055) Page. 327 334,425,428, 477, 478 389,438,444, 446, 455 409 409 157, 159 147, 148 5, 35, 36, 40, 41, 45, 50, 52, 53, 64, 65, 66, 67, 68, 75,' 184,516,520, 521, 522,525, 545, 548 139 157 104 268,342,343, 344, 345,350,352, 355, 356,357, 358, 360 435 441 108 25 13, 14, 15, 35, 75, 99, 184, 525, 528, 529 384 204, 205 398, 526 436, 440, 444 365, 369 115 494, 504 494, 504 444 436, 437 482 108 2EI 47, 50, 57. 517, 528 • 71,473 115 481,496, 501, 552 liv TABLE OF CASES. [The paging refers to the [*] pages.] Names op Cases. March, In re, Mare v. Sandford, . . Marine Mansions Co., In re, Marker v. Marker, . Markwell v. Markwell Marler v. Tornmas, Marlow v. Orgill, . . Marples v. Hartley, . Marsden v. Meadows, Marsh, Ex parte, . . — v. Lord Gran- 1 Yille, J Marshal v. G'rutwell, Marshall v. Marshall, — v. Rutton, Marston v. Gowan, Martin r. Martin, . — t. Mitchell, — v. Pewtress, — r. Podger . — j. Strachan, — v. Willyams, Martindale v. Booth, Martyn t*. M'Narnara, Mason v. Mason, . Massey v. Travers, Mather v. Fraser, Mathews v. Feaver, Matthews, Ee, . . — v. Jones, — i: L e, Maugham v. Sharpe, Maunsell r. Maunsell, — v. White, . May v. May, .... Maynard v. Pauperes de East Greensted, Mayor, Ex parte, . . Mayow, Ex parte, Mead, In re, .... Meager v. Pellew, . . Meaghan, Ex parte, . Med win v. Sandham, Meek v. Kettlewell, Wheeb Eepokted. 27 Ch. D. 166; 54 L. J. (N.S.) Ch.143; 32 W. R. 941; 51 L. T. (N.S.) 380; 24 Ch. D. 222, 1 Giff. 288, L. R. 4 Eq. 601; 17 L. T. (N.S.) 50, 9 Hare, 1, 34 Beav. 12; 34 L. J. (N.S.) Ch. 55, L. R. 17 Eq. 8; 43 L. J. (N.S.) Ch.73; 22 W. R. 25 8.Tur. (N.S.) 829 30 L. J. (N.S.) Q. B. 92; 1 B. & S. 1 7 Q. B. D. 80; 50 L. J. (N.S.) Q. B. 536; 29 W. R. 816; 45 L.T. (N.S.) 301, 1 Atk. 158, 24 Ch. D. 25; 31 W. R. 845; 48 L. T. (N.S.) 947, L. R. 20 Eq.328; 44 L.J.(N.S.)Ch.504 5 P. D. 19; 48 L. J. (N.S.) P. 49; 27 AV. R. 379; 39 L. T. (N.S.) 640 8 T. R. 545 3 Bro. C. C. 170, . . . 2 Russ. & My. 507, . . 2 Jac. & W. 413, * . ... 4 Burr. 2477, 2 W. Bl. 701; 5 Burr. 2631, 5T. R. 107, n 20 L. T. (N.S.) 352, . . 2 B. & Ad. 498, 4 Dr. & War. 427, ... Times Rep. (1886) 266, 10 Ir. C. L. R. 459, . . . 2K. & J. 536; 25 L. J. (N.S.) Ch.861 1 Cox, 278 | 1 Atk. 185, 2 Anstr. 506, . . . 1 Mad. 558, 17 C. B. (N.S) 443, . . . 1 L. R. Ir. 529, . L. R. 4 H. L. 1039, . . 31 Beav. 81, . Duke (ed. 1676), 64, . 34 L. J. (N.S.) Bkcy. 25, . . . 11 Jur. (N.S.) 433, .... 15 Ch. D. 651 ; 50 L. J. (N.S.) Ch. 30; 28 W. R. 891; 43 L. T. (N.S.) 117, 14 Q. B. D. 973 1 Sch.-&Lef. 179, 3 Sw. 685 1 Hare, 470, (5056) Page. 281, 293 104 162, 525 183 167, 398 427, 476 399 99 136 148 342, 348 258, 259, 315,513 445 306, 308, 310 302, 303, 312 395 192 393 171 171, 172, 176 192 252 114,118,119, 121, 122,123, 126, 131 . 37,45,47,315 273. 276 361 114, 135 84, 98, 244, 245 246, 274 118 166, 222, 333 249 159 502 321, 384 491 205 3, 89 32 409, 410 26 338 396 204,390, 403, 404, 438,443. 447, 448, 451 TABLE OF CASES. [The paging refers to the r*l pages. 1 lv Name? of Cases. Where Reported. Page. Meeker j'. "Wilson, . 1 Gallison (U.S.) 419, 120 Meggison v. Foster, . 2 Y. & C. C. C. 336, 315 Meggot v. Mills, 1 Ld. Eaym. 286 62, 131 Meluish v. Milton, 3 Ch. D. 27; 45 L. J. (N.S.) Ch. 836; 24 W. R. 892; 35 L. T. (N.S.) 82, . 498 Melville v. Stringer, 13 Q. B. D. 392; 53 h. J. (N.S.) Q.B. 482; 32 W. R. 890; 50 L. T. (N.S.) 774, r 138, 139 14, 38. 41, 47, 50, Mercer, Ex parte, . . 17Q. B. D. 290;54L.T (N.S.) 720, j 57, 58, 59, 64, 70, 71, 73, 74, 75, 516, 521, 544 — r. Peterson, . L. R. 3 Ex. 104; 36 L. J. (N S.) Ex. 218; 15 W. R. 1174; 16 L.T (N. S.) 792; L. R. 2 Ex. 304, . 96, 131, 137 Merchant Banking Co. T R 11 Eq. 586; 54 L. T (N.S.) 720, 149 Merriman's Trusts, Be, 10 W. R. 334 301 Merritt r. Niles, 28 Chy. 346, 56 Merry v. Eyves, . 1 Eden 1, .... 384 Merryweather i\ Jones, . . 4 Giff. 499; 10 Jur. (N.S.) 290; 12 W. R. 524; 10 L. T. (N S.) 62, 342 Metcalfe's Trusts, Be, 2 De G. J. & S. 122, . 495, 503 Metcalfe v. Pulver- toft 2 V. &B.200,1V. &B, 180; 2Spence, Eq. Jur. 289, . . ... , 218, 513 Meux v. Howell, . . 4 East, 1; 3Com. Dig. 297, • • • { 30, 50, 98, 107, 109, 538, 541, 542 Meyerstein v. Barber, 4 L. R. H L. 317: 39 L. J. (N.S.) C. P. 187; 18 W. R. 1041; 22 L T. (N S.) 808; L. R. 2 C. P. 661, 114 Meymot, Ex parte, . 1 Atk. 196, .... ... 470 Michael i. Gay, . . 1 F. & F. 409, 100, 110, 540 Middlecome v. Mar- low, 2 Atk. 520, .... . . 297 Middleton v. Barker, 29 L. T. (N.S.) 643, ... .7 431 — v. Middleton, 1 J. & W. 99, . 386 — v. Onslow, . 1 P. Wms. 768, . ... 104 2Ch. D. 104;45L.J. (N.S.) Ch.293, j 11, 12, 58, 64, 84, — v. Pollock, . 85, 97, "98, 99, 100, 104. 106, 109, 110, 111 , 125, 526 Mildmay v. Mildmay, 2 Vern. 53, 574' Miles v. Williams, . 1 P. Wms. 249, 25, 26, 27 Mill's Estate, In re, . 7 W. R. 372, 440, 443 Miller v. Harrison, . Ir. R. 5 Eq. 324, 270, 273. 276 — v. Miller, . . 3 P. Wms. 356, 407 Mills v. Borthwick, . 35 L. J. (N.S.)Ch. 31; 11 Jur. (N.S.) 558; 13 W. R. 707; 12 L. T. (N.S) 600, 336 — v. Mills, . Ir. R. 8 Eq. 192, 396 Milner, Ex parte, . . — v. Harewood, . 15 Q. B. D. 605, 104 18 Ves. 259, 506 (5057) lvi TABLE OF CASES. [The paging refers to the [*] pages. J Names of Cases. Milroy i>. Lord, . Minister, v. Price, . . Mitehell v. Homfray, — v. Reynolds, ■ Mitchinson u.Hewson, Mitford v. Reynolds, Mizen v. Pick, Mocatta v. Murgatroy d Moffett v. Whittaker, Mole v. Smith, . . . Molony v. Kernan, . Montaeute v. Maxwell, Montague v. Sandwich Monteflore v. Behrens. — v. Brown, Monteflori v. Monte- fiori, . . Moodie v. Reid, . Moor v. Rycault, . . Moore & Robinson's") Banking Co., Ex [ parte, J Moore v. Crofton, — v, Darton, — v. Hart, — v. Moore, . — v. Mulligan, . — v. Ulster Bank- ing Co., . . Moravia v. Sloper, . Morewood v. South Yorks Ry., &c, Co., . — v. "Wilkes, . . Morgan v. Brundrett, — v. Malleson, — v. Minet, Morley v. Morley, Morrison, Ex parte, Morse v. Martin, . — ■ e. Royal, . . Mortimer v. Capper, Mortlock, Ex parte, Where Reported. 4 D. F. & J. 264; 31 L. J. (N.S.)Ch. 798; 7 L. T. (N.S.) 178, .... 1 F & P. 686, 8 Q. B. D. 587; 50 L. J. (N.S.) Q B 460; 29 "W. R. 558; 45 L. T. (N.S.) 694, 1 P. Wms. 181, . 7 T. R. 348, 16 Sim. 130, . 3 M. & W. 481, 1 P. Wms. 393, . . 1 Lang. & Town. 141, Jac. 490 2 D. & War. 31, . . 1 P. Wms. 618; 1 Stra. 236;Prec. Ch. 526, ... 12 Ves. 148, . L. R. 1 Eq. 171, 7 H. L. C. 241, 1 W. Bl. 363, . 1 Mad. 516. Prec. Ch. 22, . 14 Ch.D. 379; 49 L. J. (N.S.) Bkcy.60; 28 W. R. 924; 42 L. T. (N.S.) 443, (N.S.) 3 J. & Lat. 443 4 De G. & Sm. 517; 20 L. J Ch. 626 1 Vern. 201, L. R. 18 Eq. 474; 43 L. J. (N.S.)Ch. 617, 22 W. R. 729, 30 L. T. (N.S.) 752 W. N. (1884) 34, . ' . \ . I. R. 11 C. L. 512, . . Willes, 30, . 3 H. & V. 798; 28 L. J. Ex. 114, . . 6 C. & P. 144, 5 B. & Ad. 289, L.R. 10 Eq. 475;39L..T.(N.S.)Ch. 680: 18 W. R. 1125; 23 L. T. (N.S.) 336,' 6 Ch. D. 638; 25 W. R. 744; 36 L. T. (N.S.) 948, . 2 Ch. Ca. 2, 28 W. R. 524, . 34 Beav. 500, . . 12 Ves. 373, . 1 Bro. C. C. 156, W. N. (1886) 161, (5058) Page. 403, 404, 406, 414, 416, 418, 420, 423, 424, 425, 439, 440, 444, 457 136 483,484,487,491, 493, 495, 502, 503. 506 469 25 472, 473, 477 302 197 327 514 504 372, 375, 383, 387 63, 65 297. 338 436 471 395 296, 297, 366 114, 149 56, 81, 246, 253, 368 441 375, 376, 384 406, 409, 416, 423 440, 441 26 454 173 160, 317, 325 71 101 416, 418, 441 484, 493 51 151 394 509 268 152 TABLE OF CASES. [The paging ref era to the [*] piges. ] lvii Names of Cases. Mortlock !•. Euller, . Mountford v. Keene, Mowbray, Ex parte (Ex parte Pye), . . Moxon v. Payne, . . Muggeridgeii. Stanton Mulholland v. Wil- liamson, Mullins t. Guilfoyle, Mulvany v. Dillon, Murphy, Ex parte, . — v. Abrahams, . Murray v. Glasse, . . — v. Lord Elibank — v. Mackenzie, — v. Mann, . . — r. Palmer, . Muskerryc. Chinnery, Mutton, Ex parte, Myddleton v. Lord Kenyon, . . Myers v. Duke of \ Leinster, . / — v. Elliott, Nab v. Nab, . Naden, Ex parte, . . Nairn v. Prowse, . . Naldred v. Gilliam, . Nanney v. Williams, Nantes v. Corrock, . National Bank, Ex parte, National Guardian 1 Assurance Co. , Ex > parte, J National Mercantile \ Bank, Ex parte, J National Provincial! Bank v. Harle, 1 — v. Jackson, . . Naylor v. Baldwin, . — v. Winch, . . Where Reported. 10 Ves. 306, 19 W. E. 708; 24 L. T. (N.S.) 925, . 18 Ves. 140, L. E. 8 Ch. 881; 43 L. J. (N.S.) Ch. 240, 7 W. E. 638, 14Chy. 291; 12 Chy. 91 2 L. E. Ir. 95, . . . . . j 1 Ball&B. 409 1 Sch. & Lef. 44, 15 Ir. Ch. Eep. 371, 23 L. J. (N.S.) Ch. 126, 10 Ves. 84, L. E. 10 C. P. 625; 44 L. J. (N.S) C. P. 313; 23 W. E. 595; 32 L. T. (N.S.) 777, 2 Ex. 538; 17 L. J. Ex. 256; 12 Jur. 634, 2 Sch. & Lef. 474, 3 CI. & F. 1; 3 Law'Eec. (N.S.) 290, L. R. 14 Eq. 178; 41 L. J. (N.S.) Bkcy. 57; 20 W. E. 882; 26 L. T. (N.S.) 916, 2 Ves. Jun. 391, . 7 Ir. Eq. Rep. 146, j 16 Q. B. D. 526; 53 L. J. (N.S.) Q. B: 233; 34 W. E. 339; 54 L. T. (N.S.) 552, 10 Mod. 404 Lv E. 9 Ch. 670; 43 L. J. (N.S.) Tkcy. 121; 22 W. E. 936, . . . 6 Ves. 752, 1 P. Wms. 577, 22 Beav. 452 9 Ves. 182, 26 W. E. 375, 10 Ch. D. 408; 27 W. R. 498; 40 L. T. (N.S.) 237, 15Ch.D.42;49L.J.(NS.)Bkcy.62;\ 28 W. E. 848; 43 L. T. (N.S.) 36, J 6 Q. B. D. 626; 50 L. J. (N.S.) Q. B. 437; 29 W. E. 564; 44 L. T. (N.S.) 585, 33 Ch. D. 1, 1 Rep. Ch. 69, 1 Sim. & St. 564 (5059) Page. 499, 502, 551 41!) 496, 505, 507 425, 431, 441 91 254, 266, 276, 357, 358 495 338 46, 521 441 29 158, 159 531 514 284, 286, 289 152 261, 262, 362, 389 182, 184, 219, 246, 247, 263, 322 139 444 312 223, 268, 341, 342 459, 474, 475, 476 499, 501 18, 483 159;160 152 142, 143, 145, 146, 150, 156, 159 412 480, 481 164, 220, 224 275 lviii TABLE OF CASES. [The paging refers to the [*] pages. ] Names of Cases. Neale v. Day . . . I — v. Neale, . Neate v. Latimer, . . Nedham v. Beaumont, Nedly v. Nedly, Neeve v. Keck, Negus v. Forster, Newitt, Ex parte, Newman v. Eusham, Newport' s Case ( Smar tie v. Williams), . Newstead v. Searles, Newton x;. Askew, . Nicholl v. Jones, Nichols v. Hall, . . Nicholson v. Cooper, Nicol v. Nicol, . . Nightingale v. Earl Ferrers Nixon v. Hamilton, . Norcutt %. Dodd, North v. Ansell, . . North Central Wag- ] on Co. ?;. Manches- } ter, &c, Co., North of England Co v. Archangel Co Where Reported. ?{ Northwestern Bank 1 Ex parte, . . . j Norton, Ex parte, — v. Eelly, . . . Nottidge y. Prince, Nunes v. Carter, . . Nunn ». Wilsmord, , Nurse v. Craig, . . . O'Brien v. Lewis, . . 28 L. J. (N.S.)Ch. 45; 4Jur. (N.S.) f 1225, \ 1 Keen, 672, 2 Y. & C. Ex. 257, 3 Rep. 83 h, 5 De G. & Sm. 377, 9 Mod. 106, 30 W. R. 671; 46 L. T. (N.S.) 675, . 16 Ch. D. 522; 29 W. R. 344; 44 L. T. (N.S.) 5 17 Q. B. 723; 21 L. J. Q. B. 139; 16 Jur. 359, Skin. 423; 3 Lev. 387, 1 Atk. 265 j 11 Beav. 145, L. R. 3 Eq. 709; 36 L. J. (N.S.) Ch. 544; 15 W. R. 393, L. R. 8 C. P. 322; 42 L. J. (N.S.) M. C. 105; 21 W. R. 579; 28 L. T. (N.S.) 473, 3 H. & N. 384; 27 L. J. (N.S.) Ex. 393, 31 Ch. D. 524; 55 L. J. (N.S.) Ch. 437; 34 W. R. 283; 54 L. T. (N.S.) 470, 3 P. Wms. 206, . . ... 2 Dr. & Wal. 364, . ... Cr. & Ph, 100, . . . . j 2 P. Wms. 618, 32 Ch. D. 477; 34 W. R. 430, 54 L. T. (N.S.) 48, L. R. 10 Q. B. 249; 44 L. J. (N.S.) Q. B. 121; 24 W. R. 162; 32 L. T. (N.S.) 561, * . . . L. R. 15 Eq. 69; 42 L. J. (N.S.) Bkcy. 6; 21 W. R. 69; 27 L. T. (N.S.) 461, L. R. 16 Eq. 397; 21 W. R. 402, . . 2 Ed. 286 2 Giff. 246; 29 L. J. (N.S.) Ch. 857; 6 Jur. (N.S ) 1066, 4 Moo. P. C. C. (N.S.) 222; L. R. 1 P. C. 342; 36 L. J. P. C. 12; 15 W. R. 239, 8 T. R. 521, 2 N. R. 148, 32 L. J. (N.S.) Ch. 569; 9 Jur. (N.S.) 528, 11 W. R. 318; 8 L. T. 179; 4 Giflf. 221, (5060) Page. 14, 22, 79, 86, 87, 534, 535 276 114, 126 188, 218 492 363 313 148 187 315 190, 343, 346, 347, 348, 349, 350, 352, 353, 355, 357 390, 401, 476 281 538 157, 160 313, 314 192 255, 266, 304, 307 18, 19, 20, 31, 37, 50, 455, 517, 549 336, 342 149 411 149 102 495 495, 551 101 14, 50, 82, 98 202,243,247,250, 307, 310 302 507 TABLE OF CASES. [The paging refers to the [•] pages. ~\ lix Names of Cases. Ockford v. Barelli, . O'Connor, In re, . . — v. Bernard, . Odell, Ex parte, O'Doherty v. The Ontario Bank, O' Donovan v. Rogers, Official Receiver v. Tailby, Ogden v. Hesketh, . O'Gorman v. Comyn, Olliver o. King, Ord r. Johnstone, . . Oriental Banking \ Co. i'. Coleman, J Orlabar v. Harwar, . Osborn v. Church- man, Osgood v. Strode, . . Osmond v. Fitzroy, Owen v. Body, — v. Braddell, — v. Owen, Oxley, Ex parte, . . — v. Lee, .... Pack v. Bethurst, Padget v. Priest, . . Page v. Home. . . Paget v. Paget, — v. Perchard, . Parfitt v. Lawless, Parker v. Carter, — v. Serjeant, . — v. Stones, . . Parkes v. Dee, . . Parnell v. Hingston, — v. Stedman, . Parr v. Eliason, . . . Parry r, Cawarden, . Parsons, Ex parte, . . Where Reported. ....{ 20 W. R. 116; 25 L T. (N.S.) ."(It, . 1 Ir. Jur. (N.S.) 198; 8 Ir. Jar. (U.S.) 198; 27 L. T. (N.S.) 27, 2 Jo. (Ir. Rep.) 654, . 10 Ch. D. 76; 48 L. J. (N.S.) Bkcy. 1; 27 W. R. 274; 39 L. T. (N.S.) 333, 32 C. P. 285, . . . . ... 7 Ir. Ch. Rep. 1, . . . .... 17 Q. B. D. 88; 54 L. T. (N.S.) 847, 2 C. & K. 772, ... 2 Sch. & Lef. 148 8 De G. M. & G. 110; 25 L. J. (N.S.) Ch. 427; 2 Jur. (N.S.) 312. . . 4 W. R. 37, 3 Giff. 11; 30 L. J. (N.S.) Ch. 635; 9 W. R. 432; 4 L. T. 9, ... Comb. 348, Cro. Jac. 127 2 P. Wms. 245, . j 3 P. Wms. 129, 5 A. & E. 28; 2 H. & W. 31; 6 N. & M. 448 ... . I. R. 7 Eq. 358, 3 H. & C. 88; 33 L. J. Eq. 237; 10 Jur. (N.S.) 884; 11 L. T. 137, . . 1 Ball & B. 257, . 1 Atk. 625. 3 Atk. 269, . 2 T. R. 97, . . 11 Beav. 227, 11 L. R. Ir. 26, 205, lEsp L. R. 2 P. & M. 462; 41 L. J. (N.S.) P. 68; 21 W. R. 200; 27 L. T. (N.S.) 215, 4 Hare, 409, Finch, 146, ■{ ■{ 38 L. J. (N.S.) Ch. 46, . 3 Sw. 531, 3 Sm. & Giff. 337; 2 Jur. (N.S.) 834, 1 C. & E. 153, 1 East, 92, . . . 2 Dick. 544, 16 Q. B. D. 532; 55 L. J. (N.S.)Q. B 408; 34 W. R. 717, (5061) Page. 270 160 69, 70, 72, 76, 322, 531 147, 148 50 225, 326, 328 161 172, 173 222, 341 182, 183, 537 389 137, 252 70 166 342, 344, 352, 361, 363, 534 490, 494 32, 100 409 253 338 190, 203 33 69 447, 492, 496 268, 329 117,129,130, 131, 171, 176, 178 480,485,486,488, 492,493,495, 497, 498 237, 241, 284 202,213, 222, 235 438,439, 444,446, 454, 455 103 420, 454, 455 91 315, 316 513 139, 140, 145 lx TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Partridge v. Gopp, Partyn r. Eoberts, Patch v. Shore, . Paterson v. Murphy, Patterson's Estate, 1 In re, . . . / Patterson v. Williams Paul v. Paul, .... Pauncefoot r. Blunt, Pawson v. Brown, Paxton v. Douglas, Payne, Ex parte, . — v. Mortimer, Peacock v. Monk, Pearce, Ex ■parte, . . — v. Brooks, Pearson, Ex parte, — In re, . . — ■(/. Amicable Assurance Office, Peat v. Powell, . . Peckham v. Taylor, Pedder v. Mosely, Penfold v. Mould, . Penhall v. Elwin, . Penn r. Baltimore, Pennefather v. Penne- father, . . . Pennell v. Reynolds, Penwarden v. Eoberts Perkins v. Bradley, . — v. Walker, . Perks v. Mylrea, . . Perrott v. Perrott, Perry-Her rick v. 1 Attwood, . . J Perry v. Whitehead, . Wheee Eeported. 2 Amb. 596, j 1 Amb. 314, 2 Dr. & Sm. 589; 32 L. J. (N.S.) Ch. 185; 9 Jur. (N.S.) 63; 11 W. E. 142 11 Hare, 88, . : { 4 De G. J. & S. 422; 33 L. J. (N.S.) Ch. 596: 12 W. E. 941; 10 L. T. 801 LI. &G. (t. PI.) 95, 20 Ch. D. 742; 51 L. J. (N.S.)Ch.839: 30 W. E. 801; 47 L. T. (N.S.) 210, 3 Eep. 82 a, 13 Ch. D. 202; 49 L. J. (N.S.)Ch.l93; 41 L. T. (N.S.) 339, 19 Ves. 225 11 Ch. D. 539;' 27 W. E. 368; 40 L. T. (N.S.) 296, 4 De G. & J. 447; 28 L. J. (N.S.) Ch. 716: 5 Jur. (N.S.) 749; 1 Giflf. 118, 1 Ves. 128, 25 Ch. D. 656; 53 L. J. (N.S.)Ch.500; 32 W. E. 187; 49 L. T. (N.S.) 475, L. E. 1 Ex. 213: 35 L. J. (N.S.) Ex. 134; 12 Jur. (N.S.) 342; 14 W. E. 614; 14 L. T. 288, L. E. 8 Ch. 667; 42 L. J. (N.S.)Bkcy. 44; 21 W. E. 688; 28 L. T. (N.S.) 796, ... ... 3 Ch. D. 807; 25 W. E. 126; 35 L. f T. (N.S.) 68, . . 1 27 Beav. 229, 1 Amb. 387, 31 Beav. 254 31 Beav. 159, L. E. 4 Eq. 562; 36 L. J. (N.S.)Ch 981, 1 Sm. & Giff. 258, . 1 Ves. 453, . . :•} I. E. 7 Eq. 300, 11 C. B. (N.S.) 709; 5 L. T. 286, . . 9 Q. B. D. 137; 52 L. J. (N.S.) Q. B. 312; 30 W. E. 427; 46 L. T. (N.S.) 161, 1 Hare, 219; 6 Jur. (N.S.) 254, 1 Vern. 97 W. N. (1884) 64 14 East, 423 2 De G. & J. 21, 6 Ves. 544, (5062) Page. 19, 45, 70,99, 244, 332, 539 369 398 436,437,438, 444, 463 440 430 30, 161, 405 71, 169, 464, 537 334,431, 468, 477 539 150, 154 84, 167, 319 266 139 469 103, 537 14, 31, 41, 50, 64, 66, 68, 75,76, 338,367, 516, 521 452, 454, 455 244, 274 444 437, 455, 458 431.440,442, 448, 450, 453 20, 34; 245, 270, 272 534 395, 396 252 155 71, 170 213, 467 26 474 5, 116, 190, 197, 198 394 TABLE OF CASES. [The paging refers to the [*] pages.] lxi Names of Casks. Perse r. Perse, . , Peter v. Nicolls, — v. Russell, , Petre r. Espinasse, Pharmaceutical Soc. r. London & Prov. Supply Assoc. Phettiplaoe p Sayles, Philips r. Philips. Phillips v. Barnet, ] — v. Earner, . . — v. Mullings, . Phillipson v. Kerry, . Phillpots v. Phillpots, Phipps r. Ennismore, Pierce v. Waring, . Pickering r. The II- fracombe Ky. Co. Pickstock v. Lyster, . Pike v. Fitzgibbon, Pitt's Case, . . . . Plowden r. Greene, Plumb r. Craker, — v. Flintt. . Pollard v. Grenvil, Ponsford r. Walton, . — v. Widnell, Pon-mnby v. Ponsonby Popplewell, Ex parte, Porter r. Boyle, — i. Clinton, . . Pott r. Todhunter, . Potter r. Potter, Pottinger, Ex parte, , Poulton v. Wiseman, Powell p. Evans, . . Power r. Bailey, . . — v. Cook, . . . Wheee Reported. 7 CI. & F. 279; West's App. Cas. 210. L. R. 11 Eq. 391; 19 W. R. 618, 24 \ L. T. (N.S.) 381, / 2 Vern. 726; Gilb. Eq. Rep. 122, 2 My. & K. 496, 5 App. Cas. 857; 49 L. J. (N.S.) Q B 736; 28 W. R. 957; 43 L. T. (N.S.) 389, 4 Mason, 312, Coxe, MSS. B. B. 218, 1 Q. B. D. 43lj ; 45 L. J. (N.S.) Q. B. 277; 24 W. R. 345; 34 L. T. (N.S.) 177, ... ... 1 Esp. 355, L. R. 7 Ch. 244; 41 L. J. (N.S.) Ch. 211; 20 W. R. 129, 32 Beav. 628 10 C. B. (N.S.) 85; 20 L. J. (N.S.) C. P- 11, 4 Russ. 131, 1 P. Wms. 120 1 Ex. D. 364; 45 L. J. (N.S.) Ex.594; 24 W. R. 886; 35 L. T. (N.S.) 343, L. R. 3 C. P. 235; 37 L. J. (N.S.) C. P. 118; 16 W. K. 458; 17 L.T.(N.S.) 650, .... 3 Mau. & S. 371, { 17 Ch. D. 454; 50 L. J. (N.S.)Ch.394; 29 W. R. 551; 44 L. T. (N.S.) 562, 1 Amb. 264, . Co. Ent. 162, pi. 35, 16 Q. B. D. 40; 53 L. J. (N.S.) Q 116, ... .... 2 Anstr. 439, . . 1 Ch. Ca. 10, L. R. 3 C. P. 167; 37 L. J. (N.S.) C. P. 113; 16 W. R.363; 17 L.T.(N.S. ' 511 W. N. (1869) 81, 9 P. D. 122 21 Ch. D. 73; 52 L. J. (N.S.) Ch. 39; 31 W. R. 35; 47 L. T. (N.S.) 274, 3 Law Ree. 181, 365, Comb. 222, B 2 Coll. 76, . . . . . | 1 Ves. 441 8 Ch.'D. 621: 47 L. J. (N\S.')Bkcy.'43; 26 AV. R. 648; 38 L. T. (N.S.) 432, Noy. 105, 5 Ves. 839, 1 Ball & B. 49, I. R. 4 C. L. 24, (5063) Page. 218,246, 276, 279 193, 241,315,511, 512, 550 199 476 525 113. 120 499 420 113 461,476,480, 481, 485,499,500, 501, 552 391,481, 483, 502 470 190, 202, 338 494 151, 157, 160 226, 227 32, 99, 105, 106, 107, 110, 165 283 472 543 545 131, 252 396 546, 548, 550 342 145,147, 158, 159 38, 45 315 247,251,266, 276, 278, 522, 548 371 398, 399 203, 220, 542 51 342 407 lxii TABLE OF CASES. fThe paging referB to the [*] pages. 1 Names of Cases. Power v. Walker. . . Pownall v. Anderson, Pratt v. Barker, . . . Prebble v. Boghurst, Price, Ex parte, , . . — v. Jenkins, . — v. Price, . . — v. Sands, . . Prideaux v. Lonsdale, Prime v. Stebbing, Prince v. Nicholson, Pringle v. Hodgson, . Proby v. Landor, . . Proctor i>. Gregg, . . — v. Robinson, . — v. Warren, . . Prodgers v. Langham, Prole v. Soady, Prosser v. Edmonds, Pullen v. Eeady, Pulvertoft v. Pulver- toft, .... Punnett, Ex parte, Pye, Ex parte, — v. Butterfield, Radcliffe, In re, Raleigh's (Sir W.) Case, Ramsden v. Hylton, — v, Jackson, . — v. Lupton, Kamshire v. Bolton, . Rancliffe v. Parkyns, Where Reported. 3 M. & S. 7, . . . . . . . 2 Jur. (N.S.) 857, . . . . 4Russ. 507; 1 Sim. 1, 1 Sw. 309; 1 Moo. 258; 7 Taunt. 538, 21 Ch. D. 553; 31 W. R. 104; 47 L, T. (N.S.) 402, 5 C. H. D. 619; 46 L. J. (N.S.) Ch. 805; 37 L. T. (N.S.) 51, . . 14Beav. 598;21L. J. (N.S.)Ch. 53, j Gouldsb.118 1 De G. J. & S. 433; 9 Jur. (N.S.) 507; 4 Giff. 159, 2 Ves. 409, 1 Mars. 280; 5 Taunt. 333, 3 Ves. 617, . . . 28 Beav. 504, .... 21 W. R. 240, n 15 W. R. 138; 15 L. T. (N.S.) 431; 35 Beav. 329, . ... Sel. Ca. Ch. 78, . . Sid. 133, L. R. 3 Ch. 220; 37 L. J. (N.S.) Ch. 246: 16 W. R. 445, . 1 Y. & C. Ex. 481, . . 2 Atk. 587, . . Page. 412 399 462, 495 342 523 203, 218, 221,247, 254, 257, 258,259, 260, 342, 343, 344,. 345, 346, 348,349, 353, 355, 356,357, 359, 360, 529 421,480,481,483, 485, 492, 496 315 477 551 ••{ 18 Ves. 90, 16 Ch. D. 226; 50 L. J. (N.S.) Ch.212 29 W. R. 129; 44 L. T. (N.S.) 226,' 16 Ves. 140, . . . . I 5 B. &S. 829; 34 L. J. (N.S.) Q. B. 17, 7 Ch. D. 733; 26 W. R. 417, . Lane, 42, 2 Ves. 304, . . .... 1 Atk. 292, L. R. 9 Q. B. 17; 43 L. J. (N.S.) Q. B. 17; 22 W. R. 129; 29 L. T. (N S.) 510, L. R. 8 Eq. 294; 38 L. J. (N.S.) Ch. 544; 17 W. R. 986; 21L. T. (N.S.) 50, 6 Dow, 149, \ (5064) 496, 336 108 19, 299 394 501 312 20 221,315,316,318, 319 384, 386 383 273 275 195,208,344,345, 363, 389, 414, 425, 466,511, 513, 538 141 403, 405, 412,413, 419, 420, 438, 440 539 108, 110 169 337, 342, 365,378, 480 167, 398 154 532 223, 336 TABLE OP CASES. [The paging refers to the ["1 papes ] lxiii Names of Cases. Rand r. Cartwright, Randal r. Randal, . Randall r. Morgan, . Raw v. Pote, . . . Raworth i>. Marriot, . Read v. Potter, . . Reade r. Livingstone, Reader, Ex parte, . . Reed r. Blades, . . — r. O'Brien, — v. Thoyts, . .. — r. Wilmot, . . Reese River Silver 1 Ming. Co.uAtwell, J Reeves' Case, .... Reeves v. Barlow, . . — v. Capper, — v. Reeves, Reg. r. Creese, — v. Smith, . . . — v. Townshend, . Reid i: Reid, .... — v. Shergold, . — c. Thompson, . Remmett v. Lawrence Reynell v. Peacock, . Reyner v. Powel, . . Reynolds, Ex parte, . — Ex parte, . . Rex u. Bridger, . . . — r. Inhabitants of Lain don, . . — v. Inhabitants of Northwingfield — v. Inhabitants of Scammonden, — ■ v. Nottinghham, Rhodes v. Bate, . . — v. Cook, . . . Rice v. Serjeant, . . Richards v. Delbridge, Where Reported. 1 Ch. Ca. 59, 2 P. Wins. 467, 12 Yes. 67, 2 Vera. 239, 1 My. & K. 643, Cro. Jac. 140, 3 Joh. Ch. Rep. 500, L. R. 20 Eq. 763; 44 L. J (N.S.) Bkcy. 139; 32 L. T. (N.S.) 36, . . . 5 Taunt. 212, 7 Beav. 32, 6 M. & W. 410; 8 D. P. C. 416, . 5 Moo. & P. 583, L. R. 7 Eq. 347; 17 W. R. 601; 201 L. T. (N.S.) 163, ... . I 2 Vent. 363 12 Q. B. D. 436; 53 L. J. (N.S.) Q. B. 192; 32 W. R. 672; 50 L. T. (N.S.) 782; 11 Q. B. D. 600, 5 Bing. N. C. 140, 9 Mod. 132 L. R. 2 C. C. R. 105; 43 L. J. (N.S.) M. C. 51; 22 W. R. 375; 29 L. T. (N.S.) 897; 12 Cox. C. C. 539, . . 6 Cox, C. C. 31, . . . 15 Cox, C. C. 466, 31 Ch. D. 402; 55 L.J. (N.S.) Ch. 294; 34 W. R. 332; 54 L. T. (N.S.) 100, 10 Ves. 370, 2 Ir. Ch. Rep. 26 15 Q. B. 1004; 20 L. J. Q. B. 25; 14 Jur. 1067, .... 2 Ro. 105, 2 Brownl. 79, 15 Q. B. D. 169; 54 L. J. (N.S.) Q. B. 354; 33 W. R. 715; 53 L. T. (N.S.) . 448; 2 M. B. R. 147, 20 Ch. D. 294; 51 L. J. (N.S.) Ch. 756; 30 W. R. 651; 46 L. T. (N.S.) 568, 1 M. & W. 145, 8 T. R. 379, 1 B. & Ad. 912, 3 T. R. 474, . . . . : Lane, 42, L. R. 1 Ch. 252; 35 L. J. (N.S.) Ch 267; 12 Jur. (N.S.) 178; 14 W. R 292;13L.T. (N.S.) 778, .... 2 Sim. & St. 488, 7 Mod. 37, L. R. 18 Eq. 11; 43 L. J.'(N.S.) Ch. 459; 22 W. R. 584 (5065) Page. 219, 467 390 368, 378, 380 183, 197, 332 497 166 53, 383, 521 103 118, 125, 126, 130 443 464 123 32,70,72,107,522, 526, 527, 528, 529 222 148 122, 123 344 149 540, 543 147 284, 296 396 395 175, 177 332 204 523 539, 540 71 266, 267 4G9 266, 267 71, 111, 169, 193 483, 487, 494,495. 496, 503, 504, 551 504 178, 179, 464 389, 403, 404,406. 416,418,423,424, 439, 441, 447, 457 lxiv TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Richards v. French, . — v. James, . — v. Lewis, Richardson, In re, — v. Horton, . . — v. Richardson, — v. Rhodus, . . — v. Srnallwood, Riches v. Evans, . . Rickards v. Att^Genl., Rider v. Kidder, . . Ridgway, In re, — v. Newstead, — v. Underwood, Ridler, In re, . . . . — v. Punter, . Rigden v. Vallier, Rippon v. Norton, Roberts' Case, . . Roberts v. Lloyd, — v. Roberts, — v. Roberts, — v. Roberts, — v. Thomas, — v. Williams, Robertson v. St. John Robinson, Ex parte, — v. Briggs, . — v. Dickenson, — v. Macdonnell, — v. Pickering, — v. Tucker, . . Robson v. M'Creight, Roche v. O'Brien, . . Rochfort v. Fitzmau- rice, Rock v. Dade, . . . Roddy v. Williams, . Rodgers v. Marshall, Where Repoeted. 18 W, R. 636; 22 L. T. (N.S.) 329, . L. R. 2 Q. B. 285; 8 B. & S. 302; 36 L. J. Q. B. (N.S.) 116; 15 W. R. 580; 16 L. T. (N.S.) 174, .... 20 L. J. (N.S.) C. P. 177; 15 Jur. (N.S.) 512; 11 C. B. (N.S.) 1035, . 30 Ch. D. 396, 7 Beav. 112; 13 L. J. (N.S.) Ch. 1S6; 7 Jur. (N.S.) 1144 L. R. 3 Eq. 686; 36 L. J. (N.S.) Ch. 1 653; 15 W. R. 690, J 14 Rich. S. C. 95; 19 L. T. (N.S.) 106, Jac. 552, . -{ 9 Car. & P. 642, j 12 CI. & F. 44, 10 Ves. 360, 15 Q. B. D. 446; 54 L. J. (N.S.) Q. B. 570; 34 W. R. 80, 3 De G. F. & J. 483, 4 Wash. (Amer.) 129, 22 Ch. D. 74; 52 L. J. (N.S.) Ch. 343; 31 W. R. 93; 48 L. T. (N.S.) 396, 1 Cro. Eliz. 291 ." 2 Ves. 258, 2 Beav. 63, 3 Atk. 308, 2 Beav. 376 Dan. 143, 15 W. R. 117; 12 Jur. (N.S.) 971, . 13 Q. B. D. 794, 6 T. R. 88 4 Hare, 130, 2 Bro. C. C. 140, 1 Moll. 291, L. R. 6 Ex. 1; 23 L. T. (N.S.) 395, . 3 Russ. 399, 2 B. & Aid. 134, 16 Ch. D. 660; 50 L. J. (N.S.) Ch. 527; 29 W. R. 385; 44 L. T. (N.S.) 165, 1 C. & E. 173, 25 Beav. 272, 1 Ball & B. 330, 2 Dr. & War. 20, . App. No. XIII, . 3 J. & Lat. 1, . . 17 Ves. 294, . . . (5066) Page. 503 153 238, 239 408, 454 92, 166, 333, 533 416, 418, 419,438, 440, 447, 454, 455 54 38, 47, 50, 64, 61, 62, 64, 70, 75, 516, 519, 520 99, 100, 111, 122 124, 126, 176, 178 3 19, 58, 165 407 508, 509 229 25, 32, 38, 40, 41, 42, 43, 49, 51, 57, 59, 60, 66, 70, 73, 163, 193, 221, 258, 259, 515, 526 18, 24 56, 260 339 192 454, 455 470, 471, 472 431, 444, 445 139, 142, 145, 162 179 218 253 • 165, 171, 249 151 462, 478, 479 474 28 138 20 506, 509 461 64, 348, 368 316, 320 390 TABLE OF CASES. [The paging refers to the [*] pages.] lxv Names of Cases. Roe v. Bradshaw, . . / v. Mitton, . . . Rogers r. Ingham, . — !•. Jones, . . Rolfe r. Gregory, . Rolls r. Miller, . . — v. Pearce, Rolph, Ex parte, . Rooke v. Lord Ken- sington, .... Rorke's Estate, . . . Roscarrick i: Barton, Rose v. Haycock, . . — v. Rose, .... Rosher v. Willioms, . Ross v. Army & Navy Hotel Co. . — v. Pope, . . Routh v. Roublot, . . Rowley v. Rowley, . Ruffles v. Alston, . . Rummens v. Hare, Russel v. Hammond, Russell, Ex parte, . . — v. Cumber, . . Ryall v. Rolle, . . . — v. Rowles, . . Rycroft v. Christy, . Ryland v. Smith, . . 5 STAT. OF ELIK. L. R. 1 Ex. 103; 35 L. J. (N.S.) Ex. 71; 14 W. R. 287; 12 Jur. (N.S.) 29; 18 L. T. (N.S.) 641, Where Reported. Page. 2 Wills. 3rd ed. 358, ...{ 3 Ch. D. 351; 46 L. J. (N.S.):Ch. 322; 25 W. R. 338; 35 L. T. (N.S.) 667, 7 Ch. D. 345; 26 W. R. Dig. 65; 33 L. T. (N.S.) 17 4 De G. J. & S. 576; 34 L. J. (N.S.) Ch. 274, 27 Ch. D. 71; 53 L. J. (N.S.) Ch. 682; 32 W. R. 806; 50 L. T. (N.S.) 597, 5 Ch. I). 730; 46 L. J. (N.S.) Ch. 791; 32 W. R. 899; 36 L. T. (N.S.) 438, 19 Ch. D. 98; 51 L. J. (N.S.) Ch. 88; 30 W. R. 52; 45 L. T. (N.S.) 482, . 2 K. & J. 253, 14 Ir. Ch. Rep. 442, 1 Ch. Ca. 217, 1 A. & E. 460, n. : 3 N. & M. 645, . 7 P. D. 225; 51 L. J. (N.S.) P. 79; 30 W. R. 736, . . . L. R. 20 Eq. 210; 44 L. J. (N.S.) Ch. 419; 23 W. R. 561; 32 " (N.S.) 387, . . . J. (N.S.')-) 32 L. T. I 55 L. J. (N.S.) Ch. 697, Plowd.72, 1 E. & E. 850; 28 L,. J. (N.S.) Q. B. 240, L. R. 1 H. L. Sc. 62, L. R. 19 Eq. 539; 44 L. J. (N.S.) Ch. 308; 23 W. R. 465; 32 L. T. (N.S.) 236, 1 Ex. D. 169; 46 L. J. (N.S.) Ex. 30; 24 W. R. 385; 34 L. T. (N.S.) 407, 1 Atk. 13 19 Ch. D. 588; 45 L. J. (N.S.) f Bkcy. 85; 24 W. R. 802; 34 L. T. (N.S.) 295 1 Keb. 946, 1 Atk. 165; 1 Ves. 348, j 1 Ves. 348, { 3 Beav. 238, 1 My. & Cr. 53 (5067) 157 188,191,193,194, 247, 249, 260, 262, 277, 362, 538 275 532 504 135 409, 410 143, 145 482 78, 258 345, 467 12 308 195,208,218,241, 246, 254, 327, 511, 512, 513, 514 162 225 157 308 301, 313 408 36, 37, 45, 50, 67, 115,243,367,531, 534 11, 35, 36, 39, 42, 53, 54, 57, 59, 60, 64,66,67,75,171, 516, 521, 546 176 3, 4, 11, 17, 99, 115, 116, 117, 120 115. 116, 120, 411 452 425, 445, 446, 451 299 lxvi TABLE OF "OASES. [The paging refers to the [*] pages.] Names of Cases. St. Saviour's in South- wark (Case of ), . . St. Amanda. Jersey, St. John v. St. John, Sackville West] v. 1 Holmesdale, . f Saffrey, Ex parte, . . Saffron Walden,&c., 1 Society v. Bayner, / Sagitary v. Hide, . . Salmon v. Bennett, . — v. James, . . Saltern v. Melhnish. SaDdeman v. Macken- zie Sanders, In re, . . . Sanger v. Sanger, . . .Sangninetti v. Mes- siter, Sarth v. Blanfrey, . . Saunders, Be, — v. Dehew, . . — v. Wharton, . Savery v. King, . . Sayer v. Sayer, . . . Scales v. Maude, . . Scarfe v. Halifax, . . Scholefield v. Templer Schreiber v. Dinkel, Scot v. Bell, . .' Scott v. Davis, . — v. Perchor, — v. Scott, . — v. Scott, . — v. Spashett, — v. Tyler, . Scottish Amicable Life Assur. Soc. v. Fuller. Seal v. Claridge, . . Seale v. Hayne, . . — v. Lowndes, . Sear v. Ashwell, . Searle v. Law, . . Sedgwick v. Place, Seeling v. Crawley, Selby v. Jaekson, . Self v. Maddox, Senhouse v. Earle, Wheke Eeported. Lane, 22, Com. Eep. 25, 11 Ves. 526, L. E. 4 H. L. 554; 39 L. J. (N.S.) Ch. 505, 16 Ch. D. 668; 29 W. E. 749; 44 L. T. (N.S.) 324 14 Ch. D. 406; 49 L. J. (N.S.) Ch. 465; 28 W. E. 681; 43 L. T. (N.S.) 3, 2 Vern. 44 1 Connect. Eep. 525, 1 Dowl. 369, 1 Amb. 247, 1 J. & H. 613, 47 L. J. (N.S.) Ch. 567 Holt, 327 L. E. 11 Eq. 470; 40 L. J.(N.S)Ch. 372; 19 W. E. 792; 24 L. T. (N.S.) 649, L. T. Dec. 12, 1885, 93, Gilb. Eq. 166, 4 Giff. 179 2 Vern. 271, 32 L. J. (N.S.) Ch. 224; 1 N. E. 256, . 5 H. L. C. 627 7 Hare, 387, .' 6 De G. M. & G. 43; 25 L. J. (N.S.) Ch. 433; 1 Jur. (N.S.) 1147, . . . 7 M. & W. 288, Joh. 155, 54 L. J. (N.S.) Ch. 241, 2 Lev. 70, 4 My. &Cr. 87, ........... 3 Mer 652 4 H. L. C. 1065;' 18 jur. "(N.S.)755,' 11 Ir. Eq, Eep. 487, 3 Mac. & G. 599, Wh. & Tu. L. C. 6th ed. vol. 2, 120, I. E. 2Eq. 53; 16 W. E. 274, . 7Q. B. D. 516; 50 L. J. (N.S.) Q. B. 316; 29 W. E. 598; '44 L. T. (N.S.) 501, 12 W. E. 239, 17 L. T. (N.S.) 555, 3 Sw. 411 15 Sim. 95, 25 L. T. (Amer.) 307, 2 Vern. 386 6 Beav. 192, 1 Vern. 459, 1 Amb. 289, j (5068) Page. 210, 342, 343 62 312 461 150, 152 78 76, 169, 183 54 178, 180 399 505 108, 435 169, 253 27, 30 492 390, 394 31 187 71 506 394 405, 440, 444, 447 171 504 292 221, 283 396 437 222, 254, 266 476 301 469 411 151, 156 409 477 476 413, 438 54, 77, 520 301 483 70 191,207,219, 266, 369 TABLE OF CASES. CThe paging refers to the [*] pagea.] lxvii Names of Cases. Sepalino v. Twitty, , Sercombe v. Sanders, Sergeson v. Sealey, , Sewell e. Moxey, . . Sexton v. Canney, . , ■v. Wheaton, Shakespear, In, re, Sharp v. Leach, . . , — v. Taylor, . , Sharpe v. Birch, . — v. Fox, . . Shattock v. Carden, Shaw, Ex parte, . . — %. Bean, . . — v. Jakeman, ■ — v. Jeffery, . . — v. Standish, . Shears v. Jacob, — v. Rogers, . Shee v. French, Sheeby v. Muskerry. Sheffield & South Yorkshire Building Soc. v. Harrison, Shelden v. Hand- bury, . . . Shelley v. "Wright, Sheridan, In re, Shewen p. Vander horst, . . Shield, In re, Shine v. Gbugh, Shorland, Ex parte, Short v. Ridge, . Shower v. Pilck, Shubrick v. Salmond, Shunnur v. Sedgwick) Sibley v. Higgs, . . Sibthorp v. Moxon, . Siebert v. Spooner, . Siggers v. Evans, . : Simmonds v. Kin- naird, Wheee Reported. 2 Eq. Ca, Ab. 287, 34 Beav. 382, 2 Atk. 412, 2 Sim. (N.S.) 189. 8 L. R. Ir. 226, 8 Wheaton, 229, 30 Ch. D. 169; 53 L. J. (N.S.) Ch. 44; 33 W. R. 744; 53 L. T. (N.S.) 145, 31 Beav. 491, 2 Phil. 801 8 Q. B. D. Ill; 51 L. J. (N.S.) Q. B. 64; 30 W. R. 428; 45 L. T. (N.S.) 760, . . . 17 W. R. 65, 6 Ex. 725; 2 L. M. & P. 466; 21 L. J. Ex. 200, 46 L. J. (N.S.) Bkcy. 114; 25 W. R. 686; 36 L. T. (N.S.) 805, . . . 1 Stark. 319, 4 East, 207; 1 Eden, 2nd ed.*62, n., . 13 Moo. P. C. 432, 2 Vern. 326, L. R. 1C. P. 523; 35 L. J. (N.S.)C. P. 241; 14 W. R. 609; 14 L. T. (N.S.) 286, ... . 3 B. & Ad. 362, 3 Drew. 716, 7 CI. & F. 1, . 54 L. J. (N.S.) Q. B. 15, . F. Moo. 757, . Willes, 11, . . 1 L. R. Ir. 54, { 2 Russ. & My. 75, .... 53 L. T. (N.S.) 5, . ... 1 Ball. & B. 444 7 Ves. 88 W. N (1876) 47 4 Ex. 478; 19 L. J. Ex. 113, . . 3 Burr. 1637; 1 Fonbl. Eq. 342, n, . 24' Ch. 1). 597; 31 W. R. 884; 14 L. J T. (N.S.) 156, | 15 Q. B. D. 619; 54 L. J. (N.S.) Q.B. 525; 33 W. R. 748, 3 Atk. 581, 1 M. & W. 714, 5 E. & B. 367; 3 C. L. R. 1209; 24 L. J. Q. B. 705; 1 Jur. (N.S.) 851, . Page. 4 Ves. 735, 459 495, 504 395 168, 447 17 54 282, 305, 309 495, 496, 499 469 157 78 175 148 71, 169 377 464, 470 191, 220, 513 19, 159 37, 42, 47, 69 19, 69 286, 289 149 237 383 345,355, 356, 360 110 406,430,439, 440, 443 514 18 551 113, 407 401 191,192,245, 285, 292,294,295, 359, 367, 530 139 24, 33 12 107,406, 408, 435 19 (5069) lxviii TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. Simmons v. Palles, Simmons v. Edwards, Simmons v. Simmons, Sims v. Thomas, — v. Tuffs, . . SkaTf v. Soulby, Skerratt, Ex parte, Skidmore v. Bradford, Slack v. Tolson, Slingsby v. Boulton, Sloane v. Cadogan, Sloper v. Cottrell, Slowman v. Back, . . Smale v. Burr, . . Smallcomb v. Buck- ingham, — r. Cross, Smartle v. Williams, Smith v. Ashton, — v. Baker, . — v. Battams, — v. Cannan, — v. Cherrill, — v. Cheese, — v. Cuff, . — v. Dresser, — v. French, — v. Garland, — v. Hurst, . — v. Kay, . — v. Keating, — v. Lyne, . — v. Matthews, — v. Mogford, — v. Morgan, . — v. Pilgrim, . — v. Russell, . — v. Salzmann, — v. Tatton, . — v. Timms, . "Wheee Reported. 2 J. & Lat. 489, 16 M. & W. 838, 6 Hare, 352, 12 A. & E. 536; 4 P. & D. 229; 4 Jur. 1181, 6 Cr. & P. 207, 1 H. & Tw. 426; 1M.K. 364, 2 Rose, 384, L. R. 8 Eq. 134; 17 W. R. 1056; 21 L. T. (N.S.) 291 1 Russ. 553, 1 V. & B. 334, Sug. V. & P. 11th ed. app. No. 24, j 6 E. & B. 497; 26 L. J. Q. B. 7; 2 Jur. (N.S.J 1046, 3B. &Ad. 103, L. R. 8 C. P. 64; 42 L. J. (N.S.) C.P. 20; 21 W. R. 193; 27 L.T.(N.S.)555 1 Salk. 320, 5 Mod. 375, 1 Ld. Raym. 251, 3 Lev. 387 1 Ch. Ca. 264 1 Atk. 388, 26 L. J. Ex. 232, 2 E. & B. 35; 22 L. J. Q. B. 291; 1 Jur. 911, L. R. 4 Eq. 390; 36 L. J. (N.S.) Ch. 738; 15 W. R. 919; 16 L.T.(N.S.) 517, 1C. P. D. 60; 45 L. J. (N.S.) C. P. 156; 24 W.R.368; 33 L.T.(N.S.)670 6 Mau. & S. 160, L. R. 1 Eq. 651; 35 L. J. (N.S.) Ch. 385, 2 Atk. 243, 2 Mer. 123 10 Hare, 30 j 7 H. L. C. 750, 6 C. B. 136, 2 Y. & C. C. C. 345, [ 9 W. R. 644, 21 W. R. 472, 5 C. P. D. 337; 49 L. J.(N.S.)C.P.410 2 Ch. D. 127; 34 L. T. (N.S.) 408, . 3 Taunt. 400, 9 Ex. 535, 6 L. R. Ir. 32, i 7 Jur. (N.S.) 1015, (5070) Page. 434 340 384 17, 18, 23,33, 170 464, 470 20, 37, 38, 39,40, 45, 47, 50,52,515, 516, 519 18 254 24, 33 179 204, 394,405,448, 449, 450, 458 453 180 154 174 174 315 394, 395 397 267 94,95,252 39,41,68, 342, 343, 361 160 104 545 460, 553 219, 476, 512 32, 76, 111, 329, 433, 434, 435, 531 485, 487, 504 434 425,445,459, 475, 476 443 271,272, 273, 276 526 103 178, 180 104 64, 97, 519, 520, 521 252 TABLE OF CASES! tThe paging refers to the [*] pages. ] lxix Names of Cases. Smith i: Wall, . . — r. Warde, . Smith v. White, . — i!. Whitlock, Sneary r. Abdy, . Sneed v. Sneed, . . Snell v. Heighton, Snow r. Hole, . Southam, Ex parte, South Wales Atlantic Steamship Co. , In re Sowerby v. Warder, Spackman v. Timbrel], Sparkes c. Bell, . Sparrow, Ex parte, Spencer v. Slater, . Spicer v. Spicer, . Spirett v. Willows, Spooner v. Sandilands, Spratley v. Wilson, . Spurgeon v. Collier, . Spurret v. Spiller, Spurrier, Ex parte, . Stackpoole v. Stack- poole, Stacpole i>. Beaumont, Stamford's Case, . Standen ■». Bullock, Standing v. Bowring, Wheke Eepobted. 18 L. T. (N.S.) 182, 15 Sim. 56; 15 L. J. Ch. 105, .... L. R. 1 Eq. 626; 35 L. J. (N.S.) Ch. . 454; 14 W. R.510; 14 L.T.(N.S.)350 55 L. J. (N.S.) Q. B. 286, .... 1 Ex. D. 299; 45 L. J. (N.S.) Ex.803; 34 L. T. (N.S.) 101, 1 Amb. 64, 1 C. & E. 95, 4, J Stanes v. Stanes, . . Stanfield v. Miller, . Stanford, Ex parte, . Stansfield v. Cubitt, . Stanton v. Hatfield, Stapilton v. Stapilton, Staplehill v. Bally, . Stapleton v. Stapleton Stead v. Nelson, . . Steel v. Brown, . . . Steele ■». Waller, . . Stent v. Bailis, .. . . Stephens v. Olive, — v. Trueman, L. R. 17 Eq. 578; 43 L. J. (N.S.) Bkcy. 39; 22 W. B. 456; 30 L. T. 132 2 Ch. D. 763; 46 L. J. (N.S.) Ch. 177; 35 L. T. (N.S.) 294, .... 2 Cox, 268 8 Sim. 253, . . . . : 8B. &C. 1; 2M. & E. 124, .... 2 De G. M. & G. 907, 4 Q. B. D.13; 48 L.J. (N.S.) Ch. 480; 27 W. B. 134; 39 L. T. (N.S.) 424 24 Beav. 365, J 3D. J. &[S. 293; 11 Jur. (N.S.) f 70; 34 L. J. Ch. 365, 1 1 Y. & C. C. C. 390, F. Holt, 10, 1 Eden, 55 1 Atk. 105,' Mont. 246, 4 D. & War. 320, { 3 Ves. 89, 2 Leon. 223, 3 Eep. 82 b, 31 Ch. D. 282; 55 L. J. (N.S.) Ch. 218; 34 W. E. 204; 54 L. T. (N.S.) 197, 3 P. D. 42; 47 L. J. (N.S.) P. 19; 26 W. E. 238; 39 L. T. (N.S.) 46, App. No. VIII, 17 Q. B. D. 259; 53 L. J. (N.S.) Q. B. 341; 34 W. E. 501; 54L. T.(N.S)894 2 De G. & J. 222; 27 L. J. (N.S.) Ch. 266, 1 Keen, 358, 1 Atk. 2, Prec. Ch. 224, 14 Sim. 186 1 2 Beav. 245, 1 Taunt. 381, 28 Beav. 466, 2 P. Wms. 220; 3 Bl. Com. 437, 2 Bro. C. C. 90, { 1 Ves. 73, | (5071) Page. 152 437, 441 469 30 179 394, 396 147 546 147 470 531 333, 334 26 135 32, 41, 72, 87, 89, 98, 99, 111 372 13, 23, 38, 46, 47, 48, 49, 50, 53, 73, 299, 300, 521 412 407 375, 376, 383 104 167 342, 355, 360, 361, 363, 513 296 19 210, 211 406, 432 308 389, 410 138, 140 154 547 192, 274, 276 344, 361 440 396 171, 181,182,464 391, 427, 438 531 50, 57, 163, 247 301 274, 343, 363, 390 399, 534 lxx TABLE OF CASES. ' [The paging refers to the [*J pages.] Names of Cases. Stephensomi. Hay ward Stepney v. Biddulph, Sterry v. Arden, . . Stevens, Ex parte, Stevenson v. Newn- ham, Steward v. Lombe, Stewart v. Moody, . Stilenian v. Ashdown, Stiles v. Attorney-"! General, .... J Stillwell v. Mellersh, Stockley v. Stockley, Stockton Iron Fur- 1 naee Co., In re, . j Stockwell v. Yates, . Stokes v. Stokes, Stokoe v. Cowan, . . Stone v. Grubham, . — v. Lidderdale, — v. Stone, ' . . Stratford v. Aldbo- rough, Strathmore v. Bowes, Stratton v. Murphy, . Stray, Ex parte, . . Strode v. Russel, . . Strong v. Bird, . . . — v. Strong, . . Stubbins, Ex parte, . Stultz v. Schsefle, . . Stump v. Gaby, . . Sturge v. Sturge, . . Sturgess v. Claude, . Sturgis v. Champneys, Sturtevant v. Ballard, Suffolk v. Greenvill, Suggitt's Trusts, In re Surconie v. Pinniger, Sutton v. Bath, . . . — v. Chetwynd, . Swansea, The, The Condor, "Where Reported. Prec. Ch. 310, 13 W. E. 576, 12 Johns. 536 (Amer.) L. R. 20Eq.786;44L. J. (N.S.)Bkcy. 136; 23 W..R. 908; 33 L. T. (N.S.) 135, 15 C. B. (N.S.) 297, . 1 Brod. & B. 506, 1 C. M. & R. 777, 2 Atk. 481, 2 Atk. 152, { 20 L. J. (N.S.) CI). 356, . . 1 V. & B. 30, 10 Ch. D. 356; 48 L. J. (N.S.) Ch. 417; 27AV. R. 433; 40 L. T. (N.S.) 19, 17 W. R. 23; 19 L. T. (N.S.) 328, . App. No. V, 29 Beav. 637; 7 Jur. (N.S.) 901; 9 W. R. 801; 4L. T. 695, 2 Buls. 225, ( 2 Anstr. 533, L. R. 5 Ch. 74; 39 L. J. (N.S.) Ch. 168; 18 "W. R. 385; 22 L. T. (N.S.) 359, 1 Ridgw. P. C. 281 1 Ves. 22; 2 Bro. C. C. 345; 2 Cox, 28; 6 Bro. P. C. 427, I. R. 1 Eq. 361, L. R. 2Ch. 374; 36 L. J. (N.S.) Bkcy. 7; 15 "W. R. 600; 16 L. T. (N.S.) 250, 2 Vern. 621, L. R. 18 Eq. 315; 43 L. J. (N.S.) Ch. 814; 22 W. R..788; 30 L. T. (N.S.) 745, 18 Beav. 408, [ 17 Ch. D. 58; 50 L. J. (N.S.) Ch. 547; 29 W. R. 653; 44 L. T. (N.S.) 877, 16 Jur. 909, 2 De G. M. & G. 623, 12 Beav. 229, 1 Bowl. 505, 5 My. & Cr. 97 9 Johns. (N.Y. Rep.) 337, .... Nels. 15, L. R. 3 Ch. 216; 37 L. J. (N.S.) Ch. 426; 16 W. R. 551, . 3 De G. M. & G. 571 ; 22 L. J. Ch. 419; 17 Jur. 196, 3 H. & N. 382 3 Mer. 249, [ 4 P. D. 115; 48 L. J. (N.S.) P. & A. 33; 27 W. R. 748; 40 L. T. (N.S.) 442, (5072) Page. 105 22, 209 5 154 325, 326 114, 123, 124 94 65, 66, 67, 87, 98 192, 245, 247, 249, 255 31 273, 276 140 338 301, 302 20, 31, 245 13,50,67, 98,114, 117, 120, 127 25 383, 460 396 223 514 181 394, 395 389, 425, 431 56, 62, 73, 84, 214, 245 96, 102, 104 497 505, 506, 531 481, 495, 496 180 292 120 369, 375 300 372, 373, 379 158, 160 342, 343, 361, 389, 392 545 TABLE OF CASES. [The paging refers to the [*] pages. ] lxxi Names of Cases. Swanston v. Lishman, Swift c. Pannell, . — r. Swift, . . . Swire v. Cookson, Sykes' Trusts, Re, Sykes r. Bond, . . — r. Sykes, Synies r. Hughes, . . Symmons, Ex parte, . Symonds v. Hallett, Synnot v. Simpson, . Tanner v. Byne, Tanqueray v. Bowles, Tappendeu «. Burgess, Tarback v. Marbury, Tarleton v. Liddle, Taskers. Small, . . Tate v. Hilbert. . . — v. Leithead, . . — v. "Williamson, . Tatham v. Vernon, . Taunton v. Morris, . Taw v. Bury, .... Taylor v. Atkinson, . — v. Beech, . . — v. Bowers, — v. Chester, . . — Coenen, . . . — v. Eckersley. — ■ v. Johnston, . — v. Jones, . — v. Lendey, . . Where Reported. 45 L. T. (N.S.) 360, , 24 Ch. D. 210; 31 "W. R. 543; 48 L. T. (N.S.) 351 34 Beav. 266; 34 L. J. (N.S.) Ch. 209, 9 App. Cas. 653; 48 L. T. (N.S.) 877, 2 J. & H. 415 7 Jur. (N.S.) 1024 L. E. 2 P. &D. 163 L. R. 9 Eq. 475; 39 L. J. (N.S.) Ch. 304; 22 L. T. (N.S.) 462, .... 14 Ch. D. 693; 2S W. R. 803; 42 L. T. (N.S.) 106, 24 Ch. D. 346; 32 W. R. 103; 49 L. T. (N.S.) 380, 5 H. L. C. 121, 1 Sim. 166, L. R. 14 Eq. 151, j 4 East, 230, 2 Yern. 510, j 17 Q. B. 390; 4 De G. & Sm. 538, j 3 My. & Cr. 63, '. . 2 Ves. 120; 4 Bro. C. C. 286, .... Kay, 658, L. R. 2 Ch. 55; L. R. 1 Eq. 528, 29 Beav. 604, 11 Ch. D. 779; 48 L. J. (N.S.) Ch. 408; 27 W. R. 718, Dyer, 167 b; 1 Anders. 4, 2 Atk. 600 1 Ves. 297 1 Q. B. D.'291; 46' L. j. (N.S.)Q.'b. 39; 24 W. R. 499;34L. T. (N.S.) 938, 10 B. & S. 237, 1 Ch. D. 636; 34 L. T. (N.S.) 18, j 5 Ch. D. 740; 25 W. R. 527; 36 L. T. (N.S.) 442, 19 Ch. D.603;51L. J. (N.S.) Ch. 879;\ 30 W. R. 508; 46 L. T. (N.S.) 219, / 2 Atk. 600, \ 9 East, 49, (5073) Page. 541 138, 152, 153 469 137, 155 431, 475 78 342 472 151 281 435, 436 267, 315 68, 184, 464, 524, 528, 545, 548 181 32, 75, 76, 111, 213, 214 45, 171, 192, 244, 245, 264, 265,285, 315, 318, 320,329, 464, 530, 531 514 407, 410, 430 443, 453 487, 495, 503, 551 390, 391, 412 300 475 163 372, 376, 386 472 469 20, 31, 3*, 39,40, 41, 50, 53, 55, 60, 64, 75, 517, 519, 526, 528, 546 152 484,485, 486, 494, 497, 551, 552 19, 40, 41, 50, 56, 62, 64, 117, 245, 368, 476 437 lxxii TABLE OF CASES. [The paging refers to the [*] pages. 3 Names of Casks. Where Bepokted. Page. Taylor v. Stile, . . . — v. "Wheeler, . Teasdale v. Braith- 1 waite, . . . J — v. Teasdale, . Tempest, Exparte, . Tench's Trusts, In re, Tendril v. Smith, . . Tennent v. Tennents, Teynham v. Mullins, Thackwell v. Gardiner, Theohold v. Duffoy, . Thomas v. Brennan, . — v. Freeman, — v. Thomas, . Thompson v. Attfield, — v. Leach, — v. Milligan, — v. Towne, — v. Webster, . — v. Whitmore, Thornber v. Sheard, . Thorne v. Newman, . — v. Thorne, . Thornhill v. Evans, Thorp v. Browne, . . — v. Cregan, . . Thorpe v. Macauley, — v. Owen, . . Throssel v. Marsh, Thynne v. Glengall, . Ticker v. "Smith, . . Tierney v. Wood, . . Todd v. Stokes, . . . Toker v. Toker, . . . Toilet v. Toilet, . . . Tolputt v. Wells, . . Tomkins v. Saffery, . Tonson v. Judge, . . Tonkins r. Ennis, Tope r. -Hockin, . . Topham, Exparte, . — v. Duke of f Portland, \ Townend v. Toker, . Townsend v. Westa- 1 cott, j Sug. V. & P. 14th ed. 714, .... 2 Vern. 565, 5 Ch. D. 630; 46 L. J. (N.S.) Ch. 725; \ 25 W. E. 546; 36 L. T. (N.S.) 601, / Sel. Ca. Ch. 59, L. E. 6 Ch. 70; 40 L. J. (N.S.) Bkcy, 22; 23 L. T. (N.S.) 650, 15 L. E. Ir. 406, 2 Atk. 86, L. E. 2 H. L. So. 6, 1 Mod. 119, 5 De G. & Sm. 58, 9 Mod. 102, 15 L. J. (N.S.) Ch. 420, 2 Vern. 563 2 G. & D. 226; 2 Q. B. 851; 6 Jur.645, 1 Vern. 40, 2 Vent. 198, 18 L. T. (N.S.) 809, Prec. Ch. 52, 4 Drew. 632, j 1 J. & H. 268, 12Beav. 589, Finch, 38, 1 Vern. 141, 2 Atk. 330, 16 Ir. Ch. Eep. 365, 55 L. J. (N.S:) Q. B. 80 5 Mad. 229, 5 Beav. 224, 53 L. T. (N.S.) 321, 2 H. L. C. 131, . 3 Sm. & Giff. 42, 19 Beav. 330, 1 Ld. Eaym. 444; Salk. 116 3 D. J. & S. 487; 31 Beav. 629, . j 2 P. Wins. 489; Mos. 46, 1 M. & S. 395, 3 App. Cas. 213; 47 L. J. (N.S.) Bkcy. 11; 26 W. E. 62; 37 L. J. (N.S.) 758, 3 Drew. 314, 1 Eq. Ca. Ah. 334, 7B. &C. 101; 1 L.T.(N.S.) 449, . . L.E. 8 Ch. 614; 42 L. J. (N.S.) Bkcy. 57;21W. E.655;28L.T. (N.S.) 716. 32 L. J. (N.S.) Ch. 257. 11 W. E. 507; 8L. T. (N.S.) 180; IN. E. 496, L. E. 1 Ch. 446; 35 L. J. (N.S.) Ch. ) 608; 12 Jur. (N.S.) 477; 14 W. E. [ 806; 14 L. T. (N.S.) 531, ... J 4 Beav. 58, 2 Beav. 340, ....-[ (5074) 191 230 284, 285, 289, 294, 295, 367 183 102, 103 ,296 491 245, 248, 270 189 396 447, 450 477, 478 450 257 390, 391 406 550 31 38, 39, 40, 46, 47, 50, 82, 247, 249, 250, 268, 522, 548 393, 482 494, 496, 504 466 213, 467 499 157 139 539 419, 441 158, 159 375 51 443, 446 302 405,461,489,500, 501, 552 394, 396 106, 109, 110 95, 102 493, 503 188, 193 181 102, 103 460 192,207,208,219, 247, 254, 256, 270, 466, 514, 532. 550 39,45,47,52.515, 516, 517, 545 TABLE OF CASES. [The paging refers to the [*] pages.] lxxiii Names of Cases. Townshend !'. Windham, ..} Trenchard v. Wanley, Trevelyan v. White, . Trimmer v. Dauby, . Troughton v. Trough- ton, Trousdale u.Sheppard, Trowell v. Shenton, . Trye v. Corporation of Gloucester, .... Tucker v. Finlayson, Tudor v. Anson, . . Tufnell v. Constable, Turbervill v. Tipper, Turnbull v. Forman, Turner's Estate, Jb re, Turner v. Collins, . — v. Hardcastle, — v. Vaughan, . Turnley v. Hooper, . Turquand, Ex parte, . — v. Knight, . Turvil v. Tipper, . Tuton v. Sanoner, Tweddle v. Atkinson, Twyne's Case, . Tyler v. Duke of Leeds, .... Tyre v. Lyttleton, Where Eepoeted. Ulmer v. Hills, . . . Underwood v. Hitch- cox, Ungley v. Ungley, . f 2 Ves. 1 , . . . -j 2 P. Wms. 167, . . ... 1 Beav. 588, 25 L. J. (N.S.) Ch. 424, . . . 3 Atk. 656, 14 It. C. L. E. 370, 8 Ch. D. 318; 47 L. J. (N.S.) Ch. 738; 26 W. E. 837; 38 L. T. (N.S.)369, 14 Beav. 173, 24 W. E. 570 2 Ves. 582, 8 Sim. 69, Palm. 415, n., 15 Q. B. D. 234, W. N. (1884) 191, L. E. 7 Ch. 329; 41 L. J. (N.S.) Ch. 558; 20 W. E. 305; 25 L. T. (N.S.) 779 11 C.'b." (N.S.') 683;' 31 L.J.' (N.S.) C P. 193, . . . 2 Wils. 339, 2 Jur. (N.S.) 1081 14 Q. B. D. 636; 54 L. J. (N.S.) Q. B. 242; 33 W. E. 437; 53 L. T. (N.S.) 579, 14 Sim. 643, Latch, 222, 3 H. & N. 280; 27 L. J. Ex. 293; 4 Jur. (N.S.) 365, 1 B. & S. 393; 30 L. J. (N.S.) Q. B. 265 3Eep. 81 b., 2 Stark. 218, . 2 Brownl. 189, 8 Greenl. (Maine) 326, 1 Ves. 280, 5 Ch. D. 887; 46 L. J. (N.S.) Ch.854 25 W. E. 733; 37 L. T. (N.S.) 52, . (5075) Page. 5, 15, 19, 31, 33, 36, 37, 45, 50, 63, 64, 65, 77, 191, 193, 217, 332 230 209 408 31 160 5, 187, 191, 195, 196,221,223,257, 370, 371, 372,381, 332 206 152 394, 395 455 62 304 546 481,486,488,489, 496, 497, 506,507, 508, 549, 552 181 312 47 148, 155 545 71, 171 159 245, 365, 392 4, 6, 18, 23, 36, 39, 56, 84, 86, 95, 97, 99, 100, 113, 116, 117, 118, 119,122, 124, 127, 130,132, 169, 178, 191,194, 204, 211, 245,246, 252 175 77, 210 120 21, 191, 201 373 lxxiv TABLE OF CASES. [The paging refers to the [*] pages. ] Names of Cases. Wheee Eeported. Page. Uniacke v. Giles, . . 2 Moll. 268, 474, 475 Union Bank v. Len- 1 anton, ... J 3 C. P. D. 243; 47 L. J. (N.S.) C. P. 409; 38 L. T. (N.S.) 698, 149 TJ. S. of America v. Conyngham, 9 Dallas (U.S.), 358; Wallace. C.C. 178 120 — v. Hooe, . . 3 Cranch. (U.S.), 73, ...... 120 — v. M'Crae, L. E. 3 Ch. 83; 38 L. J. (N.S.) Ch. ' 406; 17 W.E.764; 20 L.T.(N.S.) 476 539 Upton !•. Basset, . Cro. Eliz. 445, j 6, 79, 188, 191, 204,218, 220, 317 Vallence, Ex parte, 2 Deac. Bkcy. 354, 17 Vandenberg v. Palmer 4 K. & J. 204, ; 420, 437, 441 Vane v. Fletcher, . . 1 P. Wms. 352 395 — v. Kigden, . . L. R. 5 Ch. 663; 39 L. J. (N.S.) Ch. 797; 18 W. E. 1092, • . 107, 108, 109 Vansittart v. Vansit- tart 2 De G. & J. 249; 27 L. J. Ch. 290; 4 Jur. (N.S.) 519 281, 301 Vauxhall Bridge Co. v. Earl Spencer, 2 Mad. 356, 469 Veal v. Veal, 27 Beav. 303; 29 L. J. (N.S.) Ch. 321 410 Verney's Case, . . 2 Dyer, 245 b, 34 Vernon v. Cooke, 49 L. J. (N.S.) C. P. 767, 155 — v. Vernon, 1 Bro. P. C. 267 390, 399, 534 — v. Yalden, . App. No. VI., 438, 476 Verplank v. Sterry, 12 Johns. (Amer.) 536; 1 Story, Eq. Jur. 12th ed. 355 54 Villers v. Beaumont, 1 Vern. 100, 446,461, 476, 485 Voisey, Ex parte, . 21 Ch. D. 442; 52 L. J. (N.S.)Ch.l21; 31 W. E. 19; 47 L. T. (N.S.) 362, . 140 Vorley v. Cooke, . 1 Giff. 230, 531 Voyle v.- Hughes, . . 2 Sm. & Giff. 29, 400, 450 "Wakefield v. Gibbon, 1 Giff. 401, | 32, 79, 93, 247, 263, 535, 549 Waker v. Snowe, . . Palm. 359, 192 Waldy v. Gray, . . L. E. 20 Eq. 238; 44 L. J. (N.S.) Ch. 394; 23 W. E. 676; 32 L. T. (N.S.- 531, 198 Wale v. Commissrs. \ of Inland Revenue j 4 Ex. D. 270; 48 L. J. (N.S.) Ex.574; 27 W. E. 916; 41 L. T. (N.S.) 165, 155 "Walford v. Gray, . . 13 W. E. 761; 11 Jur. (N.S.) 473, . 369 "Walhampton Es- J tate. In re. . . J 26 Ch. D. 391; 53 L. J. (N.S.) Ch. f 208,209,254, 405, 802; 32 W. E. 874; 51 L. T.(N.S.) \ 445,451,466, 467, ' ' - (. 280, (_ 529 "Walker v. Bradford 1 Old Bank J 12 Q. B. D. 511; 53 L. J. (N.S.) Q. B. 280; 32 W. E. 597, .... 411, 412 f 13, 14, 37, 46,50, 63, 70, 190,233, 244, 519 — v. Burrows, . 1 Atk. 93, \ I (5076) TABLE OF CASES. CThe paging refers 1 1 the [*] pages. ] 1XXY Names of Cases. Where Reported. "Walker v. Perkins, — v. Smith, Wall r. Cockrell, . . Wallingford v. Mu-1 tual Society, . . J Wallis, In re, . . . — v. Biddick, — v. Smith, . . Walrond v. Goldmann — v. Walvond, Walsh is. Wason, Walwyn r. Coutts, Wankford K.Fotherley Warhurton v. Love- land, . . Ward v. Andland, — v. Booth, — ■(/■. Bant, . . — !.'. Shallet, — v. Turner, . — v. Yates, Warden v. Jones, Ware v. Gardner, . Warmoll v. Young, . Warrender v. War- render, Warriner v. Rogers, . Wash v. Medley, . . Waterhouse v. Jame- son, Waters «. Thorn, . . Watkins, Ex parte, . — v. Birch, . . — v. Steevens, Watson, Ex parte, — v. Parker, Watt v. Grove, . . . — v. Watt, . . . Watts v. Brooks, . . 3 Burr. 1568, 29 Beav. 394, 7 Jur. (N.S.) 29; 6 Jur. (N.S.) 768, . 5 App. Cas. 685; 50 L. J. (N.S.) Q. B. 49; 29 W. R. 81; 43 L. T.(N.S.)258 14 Q. B. D. 950 22 W. R. 1, W. N. (1882) 77, 16 Q. B.D.121; 55 L.J.(N.S.)Q.B.323; 34 W. R. 272; 53 L. T. (N.S.) 963, Johns. 18; 28 L. J. (N.S.) Ch. 97, . L. R. 8 Ch. 432; 42 L. J. (N.S.) Ch. 676; 21 W. R.' 554; 28 L. T. (N.S.) 457, . . ... 3 Mer. 707; 3 Sim. 14, j 2 Vern. 322; Freem. Ch. 201, . . 2 Dow. & CI. 487, ■{ 16 M. & W. 870, . ... | L. R. 14 Eq. 195; 41 L. J. (N.S.) Ch 729; 20 W.R.880; 27 L.T.(N.S.)364 Prec. Ch. 182, 2 Ves. 17 2 Ves. 442, 1 Dr. & Sm. 80 2 De G. & J. 76; 27 L. J. Ch. 190; f 4 Jur. (N.S.) 269, ^ L. R. 7 Eq. 317; 38 L. J. (N.S.)Ch. 348; 17 W. R. 439; 20 L. T.(N. ~ 71 ■ • • • 5B. &Cr. 660; 8 D. & R. 442, )Ch.l 1.8.) [ 2 CI. & F. 527, L. R. 16 Eq. 340; 42 L. J. (N.S.) Ch. 581; 21 W. R. 766; 28 L. ~ (N.S.) 863, 1 Dana (Kentucky), 269, . .s.n : T 'l L. R. 2 H. L. Sc. 29, 22 Beav. 547, L. R. 8 Ch. 520; 42 L. J. (N.S.)Bkcy. 50; 21 W. R. 530; 28 L.T.(N.S.)793 4 Taunt. 823, Nels. 160, ". . I 5 Ch. D. 35; 46 L. J. (N.S.) Bkcy.97; 25 W. R. 489; 37 L. T. (N.S.) 75, 6 Beav. 283, 2 Sch. & Lef. 501 3 Ves. 244, 3 Ves. 612, (5077) Page. 409 497 181 533 135 302 159 147 282, 305, 389 300 107,433,434, 435, 437, 463 375, 384 237,239,241, 329, 455 113,389,400, 407, 447, 455 100, 395 67, 472, 473,476 365,367, 522, 548 407, 409 300, 301 13, 23,299,365, 369,372,373, 380, 382, 386 14, 50, 52, 57, 64, 66, 70, 75, 170, 521, 522 174 301 403,404,414, 416, 418,420,439, 440, 441 120 525 506 129 114, 133 191,192,193, 196, 220, 222 148 67, 168, 398, 400 266 395, 396 470 lxxvi TABLE OF CASES. [The paging refers to the [*] pages.] Names of Cases. "Watts v. Bnllas, — v. Porter, — v. Thomas, — v. Watts, Way's Trusts, In re, . . . Weale v. Ollive, Weaver v. Joule, Webb v. East, . Webber v. Farmer, . Webster, Ex parte, . — v. Webster, Weeks v. Maillardet, Weise v. Wardle, . . Weldon v. Winslow, Welles v. Middleton, Wellesley v. Welles- ley Welman v. Welman, West v. Skip, . . . — v. West, . Westbury v. Clapp, . Westby v. Westby, . Westmeath v. Salis- bury, — v. West- I meath / Whaley v. Norton, . Wheatley v. Purr, . Wheeler v. Carl, . . Whitaker, In re . . . Where Eepoeted. — v. Wisbey . Whitbread u. Smith . White v. Drake, . . — v. Garden, . . — v. Hnssey, . . — v. Morris, . . — v. Sansom, . — v. Small, . — v. Stringer, 1 P. Wms. 60, 3 E. & B. 743; 2C. L. E. 1553; 23 L. J. Q. B. 345; 1 Jur. (N.S. J 133, . . 2 P. Wms. 364, 24 W. R. 623 2 De G. J. & S. 365; 10 Jur. (N.'s.') \ 836, / 17 Beav. 252, 3C. B. (N.S.) 309, 5 Ex. D. 23; 49 L. J. (N.S.) Ex. 250; 28 W. R. 336; 41 L. T. (N.S.) 715, 4 Bro. P. C. 170, 22 Ch. D. 136; 31 W. R. Ill, .... 4DeG. M. & G. 437; 22 L. J. Ch 857; 1 Sin. & Giff. 489, 14 East, 568, L. R. 19 Eq. 171; 23 W. R. 208, . . 13 Q. B. D. 784; 53 L. J. (N.S.) Q. B. 528; 33 W. R. 219; 51 L. T. (N. S.) 643 1 Cox, 119 Page. 10 Sim. 270; 4 My. & Cr. 561; 9 L. J. (N.S.) Ch. 21, 15 Ch. D. 570; 49 L. J. (N.S.) Ch. 736; 43 L. T. (N.S.) 145, . . . . 1 Ves. 239, 9 L. R. Ir. 121, 12 W. R. 511; 3N. R. 633, . . . . 2 Dr. & War. 519, 5 Bli. (N.S.) 339, . Jac. 126; 5 Bli. (N.S. & CI. 519, . . . . 1 Vern. 483, .... 1 Keen. 551, .... 1 Amb. 121, .... 339; 1 Dow. -{ 21 Ch. D. 657; 51 L. J. (N.S.) Ch. 737; 30 W. R. 787; 46 L. T. (N.S.) 802 . 12 C. B. (N.S.) 44; 21 L. J. (N.S.) C. P. 116; 16 Jur. (N.S.) 411, . 3 De G. M. & G. 727, . . 3 Keb. 6 10 C. B. (N.S.) 919; 20 L. J. C. P. 166; 15 Jur. 630, Prec. Ch. 13, 11 C. B. (N.S.) 1015; 21 L. J. C. P. 185; 16 Jur. 500 3 Atk. 411, / 2 Ch. Ca. 103 2 Lev. 106, 394, 395 226, 227 70 383, 512 452,453,458, 459, 472, 475 420, 430 123, 125, 252 541 199; 332 160 313 340 522 304 483, 493 (5078) 304 481 171, 174, 178 417, 441 391 253, 274, 311 313 301, 312, 213, 469 469 425, 438,441,445, 449 250, 297, 332, 365 409 170 284 371, 535 315 191, 531 171, 172. 173, 464 31, 62, 191, 532, 546 483 193, 196, 343, 356, 362, 534 TABLE OP CASES. [The paging refers to the [*] pages. ] lxxvii Names of Cases. Where Reported. Page. White v. Thornbor- ougli, — t>. White, — v. Witt, . . . Whitehead, Ex parte Whittington v. Jen- nings, Whit worth v. Gaugain, Whyte v. Meade, . . Wich v. Parker, . . Wiggins v. Armstrong. Wilcocksu. Hannyng- ton, . . . — v. Watson, Wilding v. Richards, Wilkes v. Holmes, . Wilkinson, Ex parte Prec. Ch. 425, L. R. 15 Eq. 247; 42 L. J. (N.S.) Ch. 288; 27 L. T. (N.S.) 752. . . . 5 Ch. D. 589; 46 L. J. (N.S.) Ch. 560; \ 25 W. R. 435; 37 L. T. (N.S) 110, J 14 Q. B. D. 419; 51 L. J. (N.S.) Q. B. 240; 33 W. R. 471; 52 L. T. (N.S.) 597 — v. Brayfield, — v. Joughin, — v. Oliveira, . — v. Wilkinson. Willan v. Willan, . . Willats v. Bnsby, . . Williams, Ex parte, . — Ex parte, . . — In re, . . . — v. Bayley, . v. Everitt, . v. Fowler, . v. Gonde, . v. Kershaw, v. Mercier, . — v. Williams, — v. Williams, Williamson v. Cod- rington, Willyams v. Bullmore, Wilmotfl. Barber, . . Wilson, Ex parte, . . 6 Sim. 493, .... 3 Hare, 416, .... 2 Ir. Eq. Rep. 420, . 22 Beav. 59, . 2 Johns. Ch. Ca. 144, 5 Ir. Ch. Rep. 38, 1 Cro. Eliz. 405, 1 Coll. 655, 9 Mod. 485, 22 Ch. D. 788; 52 L. J. (N.S.) Ch. 657; 31 W. R. 649; 48 L. T. (N. S.) 495, 2 Vern. 307, L. R. 2 Eq. 319; 12 Jur. (N.S.) 330; 14 L. T. (N.S.) 394, 1 B. N. C. 490, 1 Y. & C. C. C. 657; 6 Jur. (N.S.) 921, 2 Dow, 274, 5 Beav. 193; 12 L. J. (N.S) Ch. 105, j L. R. 10 Eq. 57; 39 L. J. (N.S.) Bkcy. 1; 18 W. R. 406, 7 Ch. D. 138: 47 L. J. (N.S.) Bkcy. 26; 26 W. R. 274 ; 37 L. T. (N.S.) 764 25 Ch. D. 656; 32 W. R. 187; 49 L. T (N.S) 475, L. R. 1 H. L. 200; 35 L. J. (N.S.) Ch 717; 12 Jur. (N. S.) 875; 14 L. T (N.S.) 802, 14 East, 582, Stra. 407, 1 Hagg. E. 581, 5 CI. & F. Ill, 10 App. Cas. 1; 9 Q. B. D. 337; 51 L. J. (N. S.) Q. B. 594; 30 W. R. 720, 37 L. J. (N.S.) Ch. 854; 18 L. T. (N.S.) 783, '. L. R. 2 Ch. 294 221 482 38, 40, 46, 50, 51, 61, 168, 522 382, 384 19, 31, 61 226, 228 495 539 527 438, 446 70 435 394, 396 95 474 463 253 468 248 202, 241, 306, 513, 514, 529, 550 36 140 137, 144 1 Ves. 511, 32 Beav. 574 17 Ch. D. 772; 45 L. T. (N.S.) 229, L. R. 7 Ch. 45; 41 L. J. (N.S.) Ch. 164, (5079) 253, 309, 311 437 108 497 206 28 384 276, 391 167, 168, 207, 208, 390, 391, 398, 399, 400, 466 469 545 127 lxxviii TABLE OF CASES. [The paging refers to the [*] pages.'] Names op Cases. "Wilson v. Kirkwood, — -v. Metealf, — v. Muskett, — v. Ray, . — v. Wilson, Wimbish v. Tailboy, Wind v. Jekyl, . . . Winfield, Ex parte, . Wingrove v. Win- grove, ... Winter, Ex parte, . . — : v. Winter, . Wise's Case Wiseman's Case, Wiseman v. Barnard, — r. Roper, Witham v. Bland, . . Witherden v. Jumper, Wolfe, Ex parte, Wollaston v. Tribe, . Wolverhampton, &c, Banking Co. v. Mars ton, Wood, In re, ... — v. Abrey, — v. Bowron, . — v. Dixie, . . — v. Downes, . — v. Irwin, . . Wooderman v. Bal- doek, ... Woodford v. Charnley. Woodgate v. Godfrey, Woodham v. Baldoek, Woodhouse v. Shep- ley, Woodie's Case, . . Woodman v. Chap- man, . . Woodroffe i. Johns- ton, Woodward v. Wood- ward Wordall v. Smith, . Worrall v. Jacob, . . Worrall v. Marlow, . Where Eepoeted. 48 L. T. (N.S.) 821, ...'... 1 Beav. 263; 8 L. J. (N. S.) Ch. 33, 3 B. & Ad. 743, 10 A. & E. 82, 5 H. L. 40; 1 H. L. 538, Plowd. 59, 1 P. Wms. 574 10 Ch. D. 591; 27 W. R. 346; 40 L. T. (N.S) 15 34 W. E. 346 29 W. R. 575 ; 44 L. T. (N.S.) 323, . 9 W. R. 747; 4 L. T. 639, . . Sel. Ca. Ch. 46, 8vo ed. p. 128, . 2 Rep. 15 F. Moo. 195, .... j ... . 1 Eep. Ch. 84, 3 Sw. 276, n., App. No. XI, 45 L. T. (N.S.) 268; 44 L. T. (N.S.) 321, L. R. 9 Eq. 44; 18 W. R. 83; 21 L. T. (N.S.) 449, . . ... 7H. &N. 148; 9 W. R. 790 . . . . 10 Ch. D. 94; 48 L. J. (N.S.) Bkcy. 39; 27 W. R. 372; 39 L. T. (N.S.) 647, 3 Mad. 417, L. R. 2 Q. B. 21; 7 B. & S. 931 L. J. (N.S.) M. C. 5; 15 W. R. 15 L. T. 207, .... 7 Q. B. 892; 9 Jur. 796, . 18Ves. 120 18 Chy. 594; 16 Chy. 398, 8 Taunt. 671, 28 Beav. 96, 5 Ex. E-. 24; 49 L. J. (N.S, 28 W. R. 88; 42 L. T. (N.S. 3 Moo. 11; Gow, 34, . 2 Atk. 540, . . Cro. Jac. 158, 1 Camp. 188, . 4 Ir. Ch. Rep. 319, ) Ex )34 ; 3 Be G. J. & S. 672, 1 Camp. 332, . 3 Mer. 256, . . 1 Cox, 153, Page. 139 19 314 104 307 4 450 128 480, 497 ■ 141, 142, 145 407 338 205 205 272, 390 72 413 157, 159, 160 343, 356, 361, 480, 496, 499, 502, 509, 534 108 95 248 (5080) 72, 99, 100 494, 506, 509 78 123, 126 412, 429, 457 148 126, 176, 182, 183 469 245 252, 441 281 118, 128, 130, 131 301, 302, 304, 459, 482 300 TABLE OF CASES. [The paging refers to the [*] pages.] lxxix Names of Cases. Worsley?'. Demattos, Worthingtonu. Curtis, Wright v. Lord Cado- gan, . . . — ii. Moor, . — f. Proud, . . — 4!. Vander- plank, . . — r. Wright, . Wrixon v. Cotter, . . Wycherleyt'. Wycher- ley, Wyse v. Lambert, . Xenos v. Wickham, . Yates v. Ashcroft, . , Yglesias v. Tglesias, . Young, Ex parte, . . — 11. Peachey, ■ — v. Timmins, — v. Waud, . . Where Reported. ■{ 1 Burr. 468, 1 Ch. D. 419; 45 L. J. (N.S.) Oh. 259 24 W. E. 221; 33 L. T. (N.S.) 828, 2 Eden 252 1 Rep. Ch. 84, . ... 13Ves. 138, 8DeG.M.&G.133;25L.J.(N.S.)Ch. \ 753; 2Jur.(N.S.)599; 2K. &J. 1, / 1 Ves. 409, ' ' . . 1 Ridgw. P. C. 302 2 Eden, 177, ... 16 Ir. Ch. Rep. 378, L. R. 2 H. L. 296; 16 W. R. 38; 16 L. T. (N.S.) 800, 31 W. R. 156, 4 P. D. 71; 27 W. K. 432; 40 L. T. (N.S.) 37, 27 W. R. 942; 41 L. T. (N.S.) 40, . 2Atk, 254, . 1 Tyrw. 226 8 Ex. 221; 22 L. J. Ex. 27, . Page. 37, 94, 95, 99, 115, 117, 166, 221, 254 470 396, 397 461 496 502, 506, 507, 508 447 50 491 274, 276, 389, 505 496, 502, 505 458, 472, 475 157 342 160, 250 474, 489, 496, 497 469 12, 252 (5081) TABLE OF STATUTES CITED. [The paging refers to the [*3 pages.] 52 Hen. 3, c. 6 (Wardships), 329 50 Edw. 3, e. 6 (Fraudulent Assurances), 1 3 Hen. 7, c. 4 (Fraudulent Deeds), 1, 118 13 Eliz. c. 5 (Fraudulent Deeds), 1-15, 17, 20, 23, 35, 36, 52, 63, 65, 66, 67, 79, 85, 86, 96, 104, 110, 116, 137, 164, 182, 184, 190, 191, 214, 243, 245, 249, 258, 259, 271, 319, 323-6, 376, 460, 464, 476, 515, 517, 518, 522, 523,524, 527, 528, 529, 538, 539, 540, 542 r 545, ,549 s. 1 : 1, 80 s. 2 : 17, 163, 463 s. 3 : 536, 543 s. 5 : 1, 46, 260 s. 6 : 2, 41, 78, 84, 91, 325, 326 s. 7: 1 c. 7 (Bankruptcy), 165 14 Eliz. c. 11 (Act to Continue Certain Statutes), s. 10 : 1 27 Eliz. c. 4 (Fraudulent Conveyances), 1, 2, 3, 5, 6. 7, 13, 15, 79, 164, 187, 190, 191, 195, 196, 200, 203, 207, 212, 221, 223, 224, 226, 227, 229, 234, 236, 237, 238, 242, 244, 245, 247, 248, 251, 254, 256, 257, 258, 259, 260, 287, 318, 323, 324, 325, 326, 329, 347, 355, 438, 460, 464, 465, 466, 475, 527, 529, 542, 549, 550 s. 1 : 202 s. 2: 202, 217, 231, 237, 463 s. 3 : 188, 237, 537 s. 4 : 2, 325, 326 s. 5 : 111, 209 ss. 7, 8 : 1 29 Eliz. c. 5 (Perpetuating 13 Eliz. c. 5), ss. 1, 2 : 1 31 Eliz. c. 5 (Common Informers), 542 39 Eliz. c. 5 (Perpetuating 27 Eliz. c. 4), 206 c. 18, s. 32 : l" 43 Eliz. c. 4 (Charitable Uses). 206 s. 1 : 205 s. 6 : 206 21 Jac. 1, c. 4 (Bankruptcy), 542 c. 19 (Bankruptcy), 17, 116, 119 s. 11 : 135 10 Car. 1, Sess. 2, c. 3 (Purchasers, Ireland), 2, 10, 258, 268, 292, 328, 329 29 Car. 2, c. 3 (Statute of Frauds), 370, 371, 470 s. 4 (Parol Agreements), 370, 371, 384 s. 7 (Parol Trusts), 404, 443, 446 s. 15 : 229 3 & 4 Anne, c. 8 (Promissory Notes), 418 7 Anne. c. 20 (Middlesex Registry Act), 196 9 Geo. 2, c. 36 (Mortmain Act), 412 (5082) TABLE OF STATUTES CITED. lxXXl [The paging refers to the [*] pages. ] 9 Geo. 4, c. 14 (Guarantee of Promises), s. 5: 370 51 Geo. 3, c. 64 (Marine Insurance Policies Act), s. 4: 411 1 Geo. 4, c. 119 (Insolvency), s. 7 : 170 1 & 2 Will. 4, c. 58 (Interpleader Act), s. 6 : 179 3 & 4 Will. 4, c. 27 (Statute of Limitations), s. 26 : 202 s. 27 : 202 c. 74 (Fines and Recoveries), 285, 299 s. 77 : 366, 484 s. 78 : 484 s. 80 : 484 c. 105 (Dower Act), 283 6 & 7 Will. 4, c. 4 (Irish Bankruptcy), 24 7 Will. 4 & 1 Vict. c. 26 (Wills Act), ss. 9, 10 : 394 I & 2 Vict. c. 110 (Judgment Act), 19, 22, 55, 86, 279 s. 11 : 18, 22 s. 12 : 20 22 s! 13 : 225,~226, 227, 234 s. 14 : 227, 234 s. 55 : 25 s. 56 : 25 3 & 4 Vict. c. 105 (Act to Abolish Arrest on Mesne Process in Civil Actions), 226 5 & 6 Vict. c. 45 (Copyright Amendment Act), 412 c. 100 412 8 & 9 Vict. e. 18 (Lands Clauses Consolidation Act), 373 c. 19: 411 II & 12 Vict. c. 43 (Criminal Information Act), s. 36: 542 12 & 13 Vict. c. 100 (Bankruptcy Act, 1849), 24 c. 107 (Bankruptcy Act, Ireland), ss. 78, 91 : 24 16 & 17 Vict. c. 137 (Charitable Trusts Act), 206 17 & 18Vict. c. 36 (Bills of Sale Act, 1854)', 136 c. 55 (Bills of Sale Eegistration Act, Ireland), 136 c. 125 (Common Law Procedure Act, 1854), ss. 60 el seq., 24, 33 18 & 19 Vict, c- 111 (Act to Amend Law of Bills of Lading), s. 1 : 410 c. 124 (Conveyance for Charity), s. 48 : 206 20 & 21 Vict. c. 57 (Malins' Act), 299 22 Vict. c. 32 (Act to Amend the Law concerning the Eemission of Penalties), 543 22 & 23 Vict. c. 35 (Trustees' Relief Act), s. 12 : 394 c. 61 (Divorce Court Act — as to Settlements), s. 5 : 342, 512 23 & 24 Vict. c. 126 (Common Law Procedure Act, 1860), s. 12: 179 c. 134 (Charities Act), s. 8: 206 24 & 25 Vict. c. 134 (Bankruptcy Act, 1861), s. 192 : 105, 233 25 & 26 Vict. c. 89 (Companies Act, 1862), s. 203 : 525 s. 204 : 525 27 & 28 Vict. c. 112 (Judgments, &c, Law Amendment Act), 527 s. 2 : 227 s. 4 : 227 29 & 30 Viet. c. 96 (Bills of Sale Registration Act, 1866, Renewal of), 136 30 & 31 Vict. c. 142 (County Courts Act, 1867), 545 c. 144 (Assignment of Life Policies), 411, 453 31 Vict. c. 4 (Sale of.Reversions Act, 1868) 248 31 & 22 Vict. c. 86 (Assignment of Marine Policies),411, 453 32 & 33 Vict. c. 71 (Bankruptcy Act, 1869), 42, 59, 60, 522 s. 6 (1) : 12, 94, 96, 105 s. 14 : 170 s. 15 (4) : 233 s. 15 (5) : 129, 135 s. 17 : 233 6 STAT. OF ELIZ. (5083) lxxxii TABLE Or STATUTES CITED. [The paging refers to the [*] pages. ] 32 & 33 Vict. c. 71 s. 22 : 233 s. 32 : 399 s 72 ' 523 s! 83 (6), (7), (8) : 233 s. 89 : 25 s. 91 : 42, 43, 44, 51, 57 - s. 92 : 101, 102 s. 94 : 45 s. 125 : 105 33 & 34 Vict. c. 93 (Married Women's Property Act, 1870), 25 s. 12 : 25, 27, 28 36 & 37 Vict. c. 66 (Judicature Act, 1873), s. 3 : 532 s. 4 : 532 s. 11 . 533 s. 16 : 532 s. 24 : 527, 528, 532 , s. 25 (6) : 168, 411, 456 s. 32 : 532 s. 34 : 482, 532, 533 37 & 38 Vict. c. 50 (Married Women's Property Act, 1870, Amendment Act, 1*74), 25 s. 1 : 28 s. 2: 28 s. 5 : 28 c. 83 (Supreme Court of Judicature Commencement Act, 1874), s. 1 : 411 s. 2: 411 38 & 39 Vict. c. 77 (Judicature Act, 1875), s. 10 : 526 s. 67 : 544, 545 40 & 41 Vict. c. 57 (Irish Judicature Act, 1877), s. 28 (6) : 457 41 Vict. c. 19 (Matrimonial Causes Act, 1878), s. 3 : 342 41 & 42 Vict. c. 31 (Bills of Sale Act, 1878), 127, 162 s. 2: 136 s. 4 : 114, 140, 146, 149, 150 s. 6 : 140, 146 s. 7 : 114 s. 8 : 136, 141, 150, 153, 465 s. 9 : 154 s. 10 : 146, 153, 154, 155, 156 . s. 10 (4) : 465 s. 11 : 155, 160 s. 20 : 152 ♦ s. 23 : 136 42 & 43 Vict. c. 50 (Bills of Sale Act, 1879, Ireland), 136 c. 59 (Civil Procedure Act Eepeal Act, 1879), 542 i 44 Vict. c. 12 (Customs and Inland Revenue Act, 1881), a. 28 : 459 s. 38 : 459, 502 44 & 45 Vict. c. 41 (Conveyancing Act, 1881), s. 1 (2) : 424 s. 50 : 420, 422, 424 s. 52 : 366 45 & 46 Vict c. 39 (Conveyancing Act, 1882), s. 6 : 366 s. 8 : 412 s. 9 : 412 c. 43 (Bills of Sale Act, 1878, Amendment Act, 1882), 114. 127 137, 146, 161 s. 2 : 137, 152 s. 3: 137, 140, 146, 153, 155 s. 4 : 162 (5084) TABLE OF STATUTES CITED. lxxxiii [The paging refers to the [*] pages. ] 45 & 46 Vict. c. 39, s. 5 : 162 s. 6 : 149 s. 7 : 140 ». 8 : 138, 140, 141, 152, 154, 465 s. 9 : 138, 140, 146 s. 10 : 156 s. 11 : 160 s. 12 : 138, 140 s. 13 : 138 s. 15 : 153 s. 17 : 162 c. 61 (Bills of Exchange Act, 1882), s. 31 : 410 s. 31 (2) : 410 s. 38 : 410 s. 73 : 410 s. 83 : 410 s. 84 : 410 75 (Married Women's Property Act, 1882), 281, 293, 294, 295, 306, 334, 342, 422, 509 s. 1 (1) : 12. 90, 91, 250, 296, 303, 359, 360, 366, 420, 424, 442 s. 1 (2) : 282, 283, 303, 304, 305, 309, 310, 366, 483 s. 1 (3) : 303, 309, 483 s. 1 (4) = 303, 305, 309, 483 s. 1 (5) : 338, 339 s. 2 : 12, 29, 90, 91, 223, 250, 295, 296, 338, 339, 359, 360; 366, 367, 420, 424, 442, 492 s. 3 : 284 s. 5 : 12, 30, 223, 250, 284, 295, 296, 338, 339, 366, 367, 420, 424, 442, 492 s. 10, 21, 128, 483 s. 13 : 28 s. 14 : 31 s. 19 : 30, 90, 91, 282, 338, 389 s. 24 : 366 S.-25 : 90, 91, 223, 284, 338,. 339, 424, 442, 492 46 & 47 Vict. u. 52 (Bankruptcy Act, 1883), 12, 59;- 60 s. 4 : 436 s. 4 (1) (A) : 12, 94, 105, 233' s. 4 (1) (C) : 102, 436 s. 6 : 436 s. 6 (1) (C) : 96 B . 18 : 105 s. 19 : 105 s. 40 (4) : 339 s. 40 (5) : 464 s. 44 (2), (3) : 128, 135, 233 s. 47 : 12, 42, 43, 44, 92, 250, 460 s. 48 : 102 46 & 47 Vict. c. 52, s. 49 : 44 b. 53 : 25 s. 56 : 170 s. 57 : 170 s. 92 : 522 s. 93 : 522 s. 168 : 17 s. 102 : 523, 524 s. 146 : 527 schedule 5 : 422 (5085) (5086) THE LAW OF Voluntary ani Fraudulent Dispositions of Property DNDEK THE STATUTES OF ELIZABETH. PART I. THE GENERAL OPERA TION OF THE STA TUTES OF ELIZA- BETH AGAINST FRAUDULENT CONVEFANCES AND THE GENERAL DISTINCTIONS BETWEEN THEM. The statutes of Elizabeth now in force against fraudu- lent conveyances are the 13 Eliz. c.5 (a), and the 27 Eliz. c. 4 (b). The statute 13 Eliz. c. 5, is made for the protection 13 Eliz. c. 5 of creditors. It declares all conveyances and disposi- protects tions of property, real or personal, made with the in- creditors, tention of defrauding creditors, to be null and void against them. ( Eliz. c. 5, was merely declaratory of what was pre- declaratory ' viously the common law of the land (k). Lord Coke of the corn- several times (I) comments on the word " declare," mon law - which is used in the statute, as showing that this was the case. Lord Mansfield, indeed, said (m) that the principles and rules of the common law, as now univer- sally known and understood, are so strong against fraud in every shape, that the common law would have at- tained every object proposed by the statutes 13 and 27 Eliz. (n). So it was said by the Supreme Court of the United States that the Acts of the 13 and 27 of Eliz. were con- sidered as only declaratory of the principles of the common law (o). As to the statute 13 Eliz. c. 5, it may well be doubted How far this whether anything more was intended by these expres- is so. sions, than that "whatever offends against the order and good morals of society is an offence against the law of England, and punishable at common law " (p) ; and that "the law abhors covin, and therefore every covinous act shall be void" (q). But be this as it may, the statute in question expressly laid down and more clearly defined the law on the subject ; whereas the doctrine of the common law was so general as to be vague and difficult of application. (t) Story, Eq. Jur. 12th ed. ss. 427-434. (ii) 3 Burge, Col. Law, 644 ; see The Laws of the Australasian Colonies, by J. D. Wood, 12 et seq. (k) Per Lord Brougham in Richards v. Attorney-General , 12 CI. & F. 44 : and see Barton v. Vanheythuysen, 11 Hare, 126, 132 ; Byall v. Uolle, 1 Atk. 178. (I) Co. Lit. 76 a, 290 b ; 3 Rep. 82 b. (m) In Cadogan v. Kennett, Cowp. 434. (n) See also Ex parte Mayor, 34 L. J. Bkcy. 25. (o) Hamilton v. Russell (Amer.), 1 Cranch, 309 ; Bump. Fr. Conv. (Amer.), 2nd ed. 10. (p) Lofft, 385. \q) 3 Com. Dig. p. 295. (5089) 4 THE GENERAL OPERATION As to the statute 27 Eliz. e. 4, the proposition here laid down seems too extensive. The statute, indeed, as it is now construed in favour of subsequent purchasers defeats any voluntary conveyance, whether fraudulent or not. Judicial decisions in England have even gone so far as tq avoid a voluntary conveyance in favour of a subsequent purchaser who bought with full notice of that voluntary conveyance (r). Generality [ * 4] * In one respect, however, both these statutes and simplici- were moulded in strict conformity with the rules of the ty of the common law. If " simplicity was the striking feature " dti of the common law" (s), it was in an almost equal de- gree the chief feature of the statutes of Elizabeth, which are couched in very general terms, so as to include, and allow their application by the Courts, to, any fraudu- lent contrivances to which the fertility of man's imagi- nation might have resorted, as a means of eluding a more precise and inflexible law. The constant The statute 13 Eliz. c. 5, is expressed to be directed growth of against fraudulent feoffments, &c, "more commonly used and practised in these days, than hath been seen or heard of heretofore " (t). So it has been since, and will ever be to the end of time ; for fraud is infinite, and will always attempt to evade whatever is done for its suppression ; to prune it back on one side is but to give it a stimulus to branch out with fresh vigour in and the some other direction («). But the simplicity of the en- suppression actment (u) and; — if the expression may be allowed — its of it by the expansiveness, have enabled the judges to bring within statutes; H s scope, and extend its operations to, almost every kind of transaction resorted to by debtors to the preju- dice of their creditors. which are to " These statutes," said Lord Mansfield, " cannot he construed receive too liberal a construction or be too much ex- hberally. tended in suppression of fraud" (w). So in Twyne's (r) Post, p. 193. is) Sug. Pow. 8th ed. Introduction, p. 1. (t) Appendix No. I. («) See Morilock v. Bailer, 10 Ves. 306; Lawley v. Hooper, 3 Atk. 279s Story, Eq. Jur. 12th ed. s. 186. (v) In. Kyall v. Rolle, 1 Atk. 165, 184-5, Lord Hardwicke said, "the Act was made in the simplicity of former times, long before those large and airy notions of credit prevailed which have been since introduced ;" S. C. 1 Ves. 348, 374. (w) In Cadot/an v. Kmnett, Cowp. 434 ; et vide Moo. 617 • see Bump. Fr. Conv. (Amer.), 2nd ed. 12. (5090) OF THE STATUTES OF ELIZABETH. 5 Case (x) it was resolved that " because fraud and deceit abound in these days more than in former times, all statutes made against fraud should be liberally and beneficially expounded to suppress the fraud." The word "voluntary" is not to be found in either of n either the two statutes of Elizabeth (y). Both statutes are statute pointed at fraudulent conveyances. speaks of vol- untary con- * This limits the scope of the statute 13 Eliz. [ * 5] veyances c. 5; for it follows that a conveyance cannot be avoided under that statute merely because it is voluntary. That fact, of itself, does not necessarily bring the conveyance within the statute (z). So Lord Mansfield said, "the statute [13 Eliz. c. 5] does not militate against any trans- action bona fide, and where there is no imagination of fraud " (a). By the construction that the statute 27 Eliz. c. 4, has Construction received in England, a conveyance of real estate or of 27 Eliz. c. chattels real is always void as against a subsequent pur- 4 > m England chaser for value, if it be voluntary, because it is deemed fraudulent in law, though in fact it may have been per- fectly free from any taint of fraud (6). But it is not necessary that a conveyance should be voluntary in order to come within it. If executed with express intent to defraud, it will be void by the statute (c). In America, however, the statute 27 Eliz. c. 4, has re- in America, ceived a somewhat different construction, and it seems now to be settled law there that a voluntary conveyance is not avoided by a subsequent sale to a purchaser with actual notice of it (d). In the United States it seems the better doctrine that a voluntary conveyance will be upheld if bond fide even against a subsequent purchaser witlumt notice (e). (x) 3 Eep. 82 a ; and see Wimbish v. Tailboys, Plowd. 59 ; Rob, Fraud. Conv. 542. (y) Holloway v. Millard, 1 Mad. 418 ; Bump. Fr. Conv. (Amer.), 2nd ed. 263, 264. (z) Post, pp. 36, 50. (a) Cadogan v. Kennelt. 2 Cowp. 434; Mackey v. Douglas, L. E. 14 Eq. 121; post, p. 36. (6) Townshend v. Windham, 2 Yes. 10; Trowell v. Shenion, 8 Ch. D., per James and Cotton, L.JJ., 325. (c) Perry-SerricTc v. Attwood, 2 D. G. & J. 39. (d) Story, Eq. Jur, 12th ed. ss. 427, 428; Sierry v. Arden (Amer.), 12 Johns. 536. , (e) Cathcart v. BoMnson (Amer.), 5 Peters, 264, 280; Story, Eq. Jur. 12th ed. ss. 428, 429; Kent, Com. 12th ed. vol. 4, 464. (5091) 6 THE GENERAL OPERATION Constructive The statute 1"3 Eliz. c. 5, is directed not only against fraud under such transfers of property as are made with the express 13 Eliz. c. 5. intention of defrauding creditors; but, as has been justly remarked, extends as well to such as virtually and indi- rectly operate the same mischief, by abusing their con- fidence, misleading their judgment, or secretly under- mining their interests To obviate this, it has gradually grown into a practice to regard certain acts or circum- stances as indicative of a so-called fraudulent intention [ * 6J in the * construction of the statute, although per- haps there was, in fact, no actual fraud or moral turpi- tude. It is difficult in many cases of this sort to sepa- . rate the ingredients which belong to positive and inten- tional fraud from those of a mere constructive nature, which the law thus pronounces fraudulent upon prin- ciples of public policy (/). To draw any definite invariable line of distinction be- tween moral and technical fraud, on the one hand, or between actual and constructive fraud on the other, would be next to impossible, and could rarely serve any useful purpose. But there are certain circumstances the presence of which is to be taken as conclusive evidence of fraud, and which will invariably avoid the conveyance. The most ordinary form of constructive fraud against creditors under the statute 13 Eliz. c. 5, is that a vol- untary conveyance made by a man deeply indebted is void (g). By the construction the statute 27 Eliz. c. 4, has re- ceived in England, the mere fact that the settler has ex- ecuted a subsequent conveyance of the same lands to a bona fide purchaser for value is of itself conclusive ev- idence of a fraudulent intention in law at the time he executed the voluntary conveyance (h). 27 Eliz. c. 4, The statute 27 Eliz. c. 4, cannot, so far, at least, as not merely re g ar( j g its operation in cases of constructive fraud, be common law considered as merely, declaratory of the common law, ' notwithstanding what Lord Mansfield said in Cadogan v. (/) Story, Eq. Jur. 12th ed. s. 349; Bump. Fr. Conv. (Amer.), 2nd ed. 25. (g) See post, pp. 35 et seq. (h) See post, pp. 187 et seq. (5092) OF THE STATUTES OF ELIZABETH. 7 Kennett (i) ; for it introduced a perfectly new and distinct protection to purchasers which was before unknown (&). This appears from Upton v. Bassett (I), mentioned in Twyne'8 Case (m), where "it was agreed that, by the common law, an estate made by fraud should be avoided only by him who had a for?ner right, title, interest, debt, or demand, as (33 Hen. 6) a sale in open market by covin shall not bar a right which is more ancient; nor a [ * 7] covinous gift shall * not defeat execution in re- spect of a former debt; but he who hath right, title, in- terest, debt, or demand more puisne shall not avoid a gift or estate precedent, by the common law " (n). It is only by virtue of the statute 27 Eliz. c. 4, there- which it goes fore, that a purchaser can avoid a prior voluntary con- beyond ; veyance, &c, made use of to defraud him. A voluntary assignment of chattels, which are not within the statute, is still good against a subsequent purchaser (o) ; for the common law does not touch such a case of constructive fraud. This, however, only refers to the doctrine that, in excent w here general, every voluntary conveyance is void as against there is actual a subsequent purchaser ; the common law did not reach fraud, such cases, in which the fraud is created, or rather defi- nitely pointed out, by the construction put upon the statute in question. But it seems that the common law would have been capable of avoiding any conveyance made with the express purpose of defrauding even a subsequent purchaser. Thus Lord Cranworlh said, in Perry -Herrick v. Atlwood (p), that the jurisdiction of the Court in such cases existed long before the statute 27 Eliz. c. 4, "which can only be intended to give a more clear and distinct jurisdiction, and a more ex- tended remedy." The statute 13 Eliz. c. 5, is in very general words 10 ™. „ r i \ t n ■ i . j -i.j Ti « t 13 khz. c. 5, (q), and makes void against creditors all manner of alien- (i) Cowp. 434; ante, p. 3. (k) Ante, p. 5. (0 3 Rep. 83 a. (m) 3 Rep. 80 b. in) Barton v. Vanheythuysen, 11 Hare, 126, 132-3 ; post, p. 204. (o) Jones v. Crouclier, 1 S. & S. 315 ; Bill v. Cureton, 2 My. & K. 512 ; infra, p. 204. (p) 2 De G. & J. 21, 40. (q) Ante, p. 2. (5093) b THE GENERAL OPERATION ations of property, judgments, &c, had or made with the intention of delaying or defrauding them. follows the In this it follows, not only the common law of Eng- eivil law. land, but also the Roman civil law. By that law it was provided that all acts, of whatever nature, done by debt- ors to defraud their creditors should be revoked (r) ; as to voluntary alienations, whether the donee knew of the [* 8] prejudice done to creditors or not (s) ; and as * to alienations not voluntary, if the grantee knew of the fraud (i), but not otherwise ; for the debtor's knavish intention ought not to cause a loss to those who deal with him in a lawful commerce and who have no share in the fraud («) ; and to oblige him who purchased a thing of a debtor to make restitution of it, it was not enough that the purchaser knew that the said debtor had creditors, but he must have been privy to the de- sign of defrauding them. For many of those who have creditors are not insolvent, and one does not become an accomplice in the fraud except by taking part in it (v); and (as is the case under the statute 13 Eliz. c. 5) any circuitous means by which a debtor attempted to de- fraud creditors was declared void : viz., by giving up a security to a person who owed him money (w), or suf- fering a creditor to obtain judgment where he had a good defence (x), &c. If a debtor did or omitted to do any other thing by which he caused a loss or a volun- tary diminution of hia goods to the prejudice of his creditors (y), everything done by such collusion was re- (/■) Dig; lib, 42, tit. 8, par. 1, ss. 1, 2 ; Domat's Civil Law, book 2, tit. 10, sec. 1, par. 1 ; 1 Fonbl. Eq. 270. (s) "Simili modo dicimus et ei cui donatum est, nonesse quae- rendum an, sciente eo cui donatum gestum sit ; sed hoc tantum. An fraudentur creditores? Nee videtur affici injuria is qui ig- noravit, cum lucrum extorqneatur, non damnum infligatur." Dig. lib. 42, tit. 8, par. 6, sec. 11. (() "Ait prfetor, Quae fraudationis causa gesta erunt cum eo qui fraudem non ignoraverit .... actionem dabo. " Ibid. par. 1, sees. 7-8. (u) Domat's Civil Law, book 2, tit. 10, sec. 1, par. 3 ; see Co- pis v. Middleton, 2 Mad. 410-429, infra, p. 81. (») Domat, book 2, tit. 10, sec. 1, par. 5. "Quod ait praetor, scienter sic accipimus te conscio et fraudem participante ; non enim si simpliciter seio ilium creditores habere, hoc sufficit ad contendendum teneri euni in factum actione : sed si particeps fraudis est." Dig. lib. 42, tit. 8, par. 10, sees. 3 and 4. (w) " Si pignora liberet.' Ibid. par. 2. (x) "Verum etiam si forte data opera ad judicium non ad- fuit." Ibid. par. 3, sec. 1. (y) "Et qui aliquid fecit ut desinat habere quod habet." Drid. par. 3, sec. 2. "In fraudem facere etiam euni qui non fa- cit quod debet facere." Ibid. par. 3. C5094) OF THE STATUTES OF ELIZABETH. , 9 voked, and the creditors restored to the first right of their debtor (z). So payment of a debt by a debtor be- fore it was really due (a), or putting himself under ob- ligation for what he did not owe (6), was liable to be revoked. But, as with us, it was no fraud for a man to pay one bona fida creditor in preference to others, although because of such payment there did not re- main enough to satisfy the other * creditors (c), [ * 9 ] whether the payment was made willingly or on com- pulsion ; the other creditors ought to blame themselves for not having been as watchful of their interests as he has been who has obtained payment (d). As in the English law, the intention of defeating creditors at the time of the alienation is what is looked at (e). It will be found that all these provisions are contained in, or have, by judicial interpretation and implication, been engrafted on, the statute 13 Eliz. c. 5. These two Statutes of Fraudulent Conveyances have T , , been in operation for upwards of 300 years, and a vast operation of number of cases have been directly decided upon them, the statutes! besides many others on which they have exercised an indirect influence. As to the statute 13 Eliz. c. 5, at least, which relates 13 Eliz. c. 5, to the protection of creditors, it may be said that its protects the interests of (2) ' 'Quodcumque igitur fraudis causa factum est, videtur his creditors, verbis revocari, qualecumque fuerit, nam late ista verba patent. Sive ergo rem alienavit sive acceptilatione vel pacto aliquem lib- eraverit." Ibid. par. 1, sec. 2. (a) Ibid. par. 10, sec. 12. " Omnes debitores qui in fraudem creditorum liber antur per hanc actionem revoeantur in pristinam obligationem." Ibid. par. 17. (b) " Sive se obligavit fraudandorum creditorum causa. " Ibid, par. 3. (c) "Qui suum recipiat, nullam videri fraudem facere." Dig. lib. 42, tit, 8, par. 6, sec. 6. "Qui debitam pecuniam recepit antequam bona debitoris possideantur, quamvis sciens prudens- que solvendo non esse recipiat non timere hoc edictum ; sibi enim vigiliavit." Ibid. sec. 7. (d) " Licet creditoria vigilare ad suum consequendum. Quid ergo si cum in eo essent ut bona debitoris mei venirent, solvent mihi pecuniam ; an actione revocari ea possit a me ? An distin- guendum est, is obtulerit mihi, an ego illi extorserim invito? Et si extroserim invito, revocetur ? Si non extorserim nonrevo- cetur? Sed vigilavi : meliorem meam conditionem feci : jus civile vigilantibus scriptum est. Ideo non revocatur id quod percepi." Ibid. par. 24, apud finem. (e) "Fraudis interpretatio semper in jure civili non ex eventu duntaxat sed ex consilio quoque desideratur." Ibid. lib. 50, tit. 17, par. 79. (5095) 10 THE STATUTE 13 BLIZ. C. 5, effect has been, throughout this length of time, uni- formly beneficial. It has been well observed (/) that "it must be a fundamental policy of all enligthened nations to protect and subserve the rights of creditors." The absence of such protection must, in the language of the statute, be " 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, bar- gaining and chevisance between Man and Man, without the which no Common Wealth or civil society can be maintained or continued." For the well-being of a great commercial country like England, it must always be a matter of the highest importance that the interests of creditors should be secured by every possible means consistently with justice. It may be said that this statute has, by its 300 years [ * 10] of activity, *exercised a wholesome influence on the commerce and industry, and therefore on the pros- perity, of this country. Its adoption in other countries, as Ireland (g), the Isle of Man (h), and most of the colonies of Great Britain (i), and its universal adoption in America (k), are proofs of its value and efficacy. Its principles have likewise been adopted from the civil law by Frarjce, Holland, and Spain (I). 13 Eliz. c. 5, The statute 13 Eliz. c. 5, extends to creditors and applies to others (?n), and is not in terms confined to fraudulent others as well dispositions ; for it makes void any disposition which is as creditors. intended to delay, hinder, or defraud creditors and others, &c. (w). Extended to other countries. Works con- currently with the Bankruptcy Acts. The statute 13 Eliz. c. 5, has always been, both in principle and practical operation, quite distinct from and independent of the bankrupt lawB, but has worked concurrently and, for the most part harmoniously, with the long series of Bankruptcy Acts which have suc- ceeded one another, with various provisions and amend ments which the growth of commerce and civilization (/) Story, Eq. Jur. 12th ed. s. 350. (.?) 10 Car. 1, sess. 2, c. 3. (h) See Mills' Stats, of Isle of Man, p. 238. Corlett v. RadcWe. 14 Moore, P. C. 121. (i) 3 Burge, Col. Law. 644. (*) Story, Eq. Jur. 12th ed. s. 353 : et supra, p. 2 : 4 Kent, Com. 12th ed. 463. (0 3 Burge, Col. Law, 616. (m) Section 1 ; post, pp. 64, 65. (») Section 1 ; post, pp, 17 et seq. (5096) COMPARED WITH BANKRUPTCY ACTS. 11 has rendered necessary for the time being, and which the changing nature of the relations between debtor and creditor has required ; whereas this statute of Elizabeth is as effective now as it was at its first enact- ment, on account of its simplicity and comprehensive- ness. The question whether a deed is void under the stat- The differ- ute 13 Eiz. c. 5, is a very different one from the ques- ence between tion whether that deed is void under any of the succes- 13 , E V Z ' c ' ' r '' sive Bankruptcy Acts. Bankruptcy Acts. The one great object of the statute 13 Eliz. c. 5, is to prevent debtors from dealing with their property in any way to the prejudice of their creditors ; it, in fact, con- siders a man deeply indebted as no longer the true owner of his property, but, as it were, a trustee of it for the benefit of his creditors. As in the Statute of Fraudulent Devises it was an old rule that, where a man devised land for the payment of debts and lega- cies, the debts should first be satisfied, for Lord Not- tingham said he would not "make a man *sin [ * 11] in his grave" (o) ; so the statute 13 Eliz. c. 5, gives a priority to debts over voluntary and fraudulent convey- ances, and attempts to prevent a man in his lifetime from sinning against his just creditors. j The meaning of this statute, said Jessel, M.R., in Middleton v. Pollock (p), "is that the debtor must not retain a benefit for himself. It has no regard whatever to the question of preference or priority among the creditors of the debtor." A settlement, therefore, which preferred certain creditors and tended to defeat the others, might be good under this statute of Elizabeth. The primary aim of all the successive Bankruptcy Acts however, is to obtain an equal distribution of the debtor's assets among his creditors. The assumption when a man is made bankrupt is, that his debts are in excess of his available assets (q) ; and the ruling object of the statutes on the subject is, to take and divide amongst the creditors, in proportion to their debts, whatever assets there may be, and then, (o) Bruvsden v. Stratton, Prec. Chan. 520. (p) 2 Ch. D. 108, 109 ; see Alton v. Harrison, L. E. 4 Ch. 622, and Ex parte Games, 12 Ch. D. 314. (q) Exparte Russell, 19 Ch. D. 568. (5097) 12 THE STATUTE 13 ELIZ. C. 5, in consideration of the debtor's giving up the whole of his property, to discharge him from any future liability with respect to his then debts. Assignment Nor, again, is it material under this statute of Eliza- oS whole prop- beth whether the assignment by the debtor is of the erty not whole of his property, present or future, or of any part voWunder of iL So it; was 8aid bv Thesi g er . L - J > in Ex P arte 13 Eliz. c. 5; Games (r), quoting, with approval, the words of Giffard, L. J., in Alton v. Harrison (s) : "I have no hesitation in saying that it makes no difference in regard to the statute of Elizabeth whether the deed deals with the whole, or only a part, of the grantor's property. If the deed is bona fide— that is, if it is not a mere cloak for retaining a benefit to the grantor — it is a good deed un- der the statute of Elizabeth." but is an act Under the Bankruptcy Act, 1883 (t), however, a debt- of bank- or commits an act of bankruptcy if he makes a fraudu- ruptcy. i en t conveyance, gift, delivery, or transfer of his prop- erty, or of any part thereof. [ * 12 ] * It therefore follows that if a deed is void under the statute 13 Eliz. c. 5, because it is thereby deemed fraudulent in law, it at once also becomes fraud- ulent under the Bankruptcy Act, an act of bankruptcy, and void against the trustee in bankruptcy (u). But the converse of this is not true. Deed good A deed may be a good deed under the statute 13 under 13 Eliz Eliz. c. 5, and yet may come within the Bankruptcy c. 5, but void Acts under Bank- ruptcy Acts. Thus, an assignment by a man of his whole property to a trustee for creditors generally may be a good deed under the statute 13 Eliz. c. 5 (v) ; but is an act of bankruptcy under the Bankruptcy Act, 1883, if im- peached within three months of its execution (w) ; and (r) 12 Ch. D. 324. (s) L. R. 4 Ch. 626 ; Ryall v. Rolle, 1 Atk. 165, J80. (t) Section 4 (1) B ; and see section 4 (1) A. (u) See Billiter v. Young, 6 E. & B. 1 ; Young v. Waud, 8 Ex. 221, 234, where Lord Wensleydale classified fraudulent deeds which are acts of bankruptcy ; Devon v. Watts, 1 Doug. 86, and Hassells v. Simpson, 1 Doug. 89, 95 ; Com. Dig. tit. Bankrupt (C.) 8 ; and Ex parte Chaplin, 26 Ch. D. 319. (v) Post, pp. 96 et seq. (to) 46 & 47 Vict. c. 52, s. 4 (1) (A) ; 32 & 33 Vict. c. 71, s. 6 (1) ; Robson, Bkcy. 5th ed. 154 et seq. ; post, p. 94. (5098) COMPARED WITH BANKRUPTCY ACTS. 13 was under the Act of 1869, even though for valuable consideration (a;), unless also bona tide (y). Again, a deed may be a preference of one creditor over others, and yet be a good deed under this statute of Elizabeth (2); while under the bankruptcy law, if impeached within the proper time, it would be void as a fraudulent preference (a), and would now be an act of bankruptcy (6). By the Bankruptcy Act, 1883 (c), all voluntary set- voluntary tlements made by any settlor within two years before settlements bankruptcy are void against the trustee in his • bank- avoided by ruptcy ; and if made within ten years they are also ?^ k JSM Cy similarly void under certain circumstances ; but there ' is an exception in favour of settlements " 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." Under the statute 13 Eliz. c. 5, a settlement of such property would, subject to the wife's equity to a settlement (d), be equally voluntary and void against creditors with *that of property belonging to [ * 13 ] the husband in his own right (e). A question there- fore may possibly arise as to whether such a settlement, being void under this statute of Elizabeth, but being expressly favoured by the Bankruptcy Act, would be an act of bankruptcy ; but it is apprehended the section, taken as a whole, merely invalidates certain settlements and transfers of property, and that such a settlement, if void under this statute of Elizabeth, would be an act of bankruptcy. The statute 27 Eliz. c. 4, has no relation to the Bank- ruptcy Acts. The statute Eliz. c. 4, it will be seen ( / ) makes void Purchasers as against subsequent purchasers all transfers of real protected by estate or chattels real made to defraud them, nearly in 27 Eliz - c - 4 - (x) See post, p. 94 ; and Siebert v. Spooner, 1 M. & W. 714. (y) Baxter v. Pritchard, 1 A. & E. 456 ; Rose v. Hancock, 1 A. & E. 460 ; Robson, Bkcy. 5th ed. 156 et seq. (z) Middleton v. Pollock, 2 Ch. D. 104. (a) 46 & 47 Vict. c. 52, s. 48 ; post, p. 100 ; and see Eobson, Bkcy. 5th ed. 167 et seq. (6) 46 & 47 Vict. c. 52, s. 4 (1) (C). (c) 46 & 47 Vict. c. 52, s. 47 ; post, pp. 42 et seq. (d) See now 45 & 46 Vict. c. 75, ss. 1,(1), 2, 5. (e) Warden v. Jones, 2 De G. & J. 76; Spirett v. Willows, 3 D. J. & S. 293. (/) Post, pp. 186 et seq. 7 STAT. OF ELIZ. (5099) 14 STATUTES OF ELIZABETH: the same terms as are employed by the statute 13 Eliz. c. 5. in favor of creditors. Difference It is clear, however, that the operation and construe- between the tion of these two acts must be materially different, two statutes. Under 13 Under the statute 13 Eliz. c. 5, the fraud against Eliz. c. 5, cre( Jitors, if any, exists, theoretically at least, at the tors^fraud is ^ me ^ ne conveyance, &c, is made (g). As soon as that complete at is executed, an act has been done upon which the stat- the time con- ute is capable of operating at once. The ground on veyance is -which a disposition of property has been held fraudu- lent against future creditors, when not made with the intention of prejudicing any existing creditor, has been that the intention of defeating those future creditors must be taken to have been in the mind of the debtor at the time (h). Thus it was agreed by Sir Edward Coke and the Court of King's Bench, in Stone v. Grubham (i), that " as to the matter of fraud, the same ought to be fraud at the beginning ; " .... and "if a man hath any intention to evade out of the statute of 13 Eliz. c. 5, [ * 14 ] whatsoever * he shall say afterwards will not anyways salve and amend the matter, but the same shall be fraud, and shall be within the statute." Intention of A conveyance which is constructively fraudulent the conveyer, under the statute 13 Eliz. c. 5, and for that reason whether the void, is so because, from the construction to be put on actual or a ^ ^he circumstances of the case, it must be presumed merely con- that the conveyance was made with the intention of structive. defrauding creditors (fc). If the conveyance is not void as being voluntary and made by a person indebted, the question is as to the motives of the person making (g) Walker v. Burrows, 1 Atk. 93; Holloway v. Millard, 1 Mad 420; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503- In. re Maddever, 27 Ch. D. 523, 526, 530; Story, Eq. Jur. 12th ed.' s. 353, n. ; post, pp. 15, 35, 67. (/») So also, under the earlier bankrupt statutes, the settlor must have been a trader at the time when he made the voluntary settlement ; see Lilly v. Osborn, 3 P. "W. 298 ; 1 Jac. 1, c. 15, s. 5 ; this distinction does not exist under 46 & 47 Vict. c. 52 ; see post, pp. 61 et seq. (i) 2 Buls. 225. (fc) Holmes v. Penney, 3 K. & J. 90, 99 ; Freeman v. Pope, L. E. 5 Ch. 538, 543 ; In re Johnson, 20 Ch. D. 389, S. C. 51 L J (N.S.) Ch. 503 ; In re Maddever, 27 Ch. D., per North, J., at p. 526 ; but see Ex parte Mercer, 17 Q. B. D. 290, post, pp. 38, 41. (5100) DIFFERENCE BETWEEN THEM. 15 the deed, whether or not his intention was to defeat creditors (I). On the other hand, it is evident that there must be Under27Eliz two separate acts to constitute a fraud cognizable by c. 4, agairist the statute 27 Eliz. c. 4 ; first, a conveyance fraudulent purchasers, by being set up against the subsequent purchaser ; and comp i e t e un . secondly, the conveyance to that purchaser. til the second conveyance. Thus there must be two independent inconsistent dispositions by the grantor, and the fraud can only be collected from those two dispositions taken together, and constituting one fraudulent act within the stat- ute (m). Until the second conveyance is executed, the fraud is only inchoate, for a man may make a voluntary or other fraudulent conveyance, with or without the intention of using it to cheat a subsequent purchaser ; but if he does not actually execute a second conveyance, or enter into a contract for sale, it is clear no one can be. injured by the first. As against creditors, then, the animus fraudandi must have, or must be taken to have, existed when the conveyance, &c, was made. As against purchasers, it matters not why the first conveyance * was made ; it is sufficient if it [ * 15 ] was subsequently made a means of attempting to deceive a purchaser. This distinction is in harmony with all the authori- Under 13 Eliz ties. It may, therefore, be stated as a settled principle c. 5, the cir- that in order to decide whether a disposition of property curnstances is void as to creditors, under the statute 13 Eliz. c. 5, conveyance the state of circumstances at the time the conveyance is to he re- executed must be regarded (n). garded ; (Z) Nunn v. Wilsmore, 8 T. E. 521, 530; Henderson v. Lloyd, 3 F. & F. 7 ; Ware v. Gardner, L. R. 7 Eq. 317 ; In re Pearson, 3 Ch. D. 807 ; Ex parte Mercer, 17 Q. B. D. 290. The principle, however, is to be collected from a general survey of all the authorities, rather than by any express dicta : see also French v. French, 6 D. M. & G. 95, 101 ; Neal v. Day, 28 L. J. Ch. 45, 47, post, pp. 78, 84. (m) Walker v. Burrows, 1 Atk. 94. (n) See ante, p. 13; post, pp. 35, 67; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503; In re Maddever, 27 Ch. D. 523. (5101) 16 STATUTES OF ELIZABETH. at time of subsequent sale. but under Id order to determine, under the statute 27 Eliz. c. 4, 27 Eliz. c. 4, whether a disposition of property is void as against a subsequent purchaser, the circumstances at the time when the purchaser assumed that character must be looked at, and considered in relation to the previous disposition which is impeached as fraudulent. It will be found that these two propositions will give the key to eliciting a satisfactory and harmonious principle from many decisions which might otherwise appear unintel- ligible or contradictory. How the dis- tinction op- erates practi- cally as to constructive fraud. The practical effect of the distinction, so far as regards constructive fraud under the two statutes, was clearly laid down by Lord Hardwicke in Townshend v. Wind- ham (o), where he said: "There is certainly a differ- ence between the Statutes of Fraud of the 13 Eliz., which is in favour of .creditors, and the 27th Eliz., which is in favour of purchasers. But that difference was never suffered, by way of general rule, to go farther than this : on the 27 Eliz. every voluntary conveyance made where afterwards there is a subsequent convey- ance for valuable consideration, though no fraud in that voluntary conveyance, nor the person making it at all indebted, yet the determinations are, that such mere voluntary conveyance is void at law by the subsequent purchase for valuable consideration (p). But the dif- ference between that and the 13 Eliz. is this: if there is a voluntary conveyance of real estate or chattel inter- est by one not indebted at the time, though he after- wards becomes indebted, if that voluntary conveyance [ * 16 ] was for a child (q), and *no particular evid- dence or badge of fraud to deceive or defraud subse- quent creditors, that will be good; but if any mark of fraud, collusion, or intent to deceive subsequent credi- tors appears, that will make it void; otherwise not, but it will stand, though afterwards he becomes indebted-" (o) 2 Ves. 1, 10. (p) See post, pp. 187 et seq. (q) See post, pp. 76, 77, (5102) fr PART II. t* 17 3 THE EIGHTS OF CREDITORS UNDER THE STAT- . UTE 13 ELIZABETH, CAP. 5. CHAPTER I. WHAT KINDS OF PROPERTY ARE WITHIN THE STATUTE, AND WHAT KINDS OF CONVEYANCES. The preamble of the statute 13 Eliz. c. 5, declares it 13 Eliz. c. 5. to be made "for the avoiding and abolishing of feigned, covinous, and fraudulent feoffments, gifts," &c. "as well of lands and tenements, as of goods and chattels" (a), made to delay, hinder, or defraud creditors and others. The kinds of property to which the statute extends are described in it as "lands, tenements, hereditaments, goods and chattels or any of them, or any lease, rent, common or other profits or charge out of the same lands, tenements, hereditaments, goods and chattels, or any of them" (6). Under this description are included all kinds of prop- includes all erty real and personal, legal and equitable (c), vested, property lia- reversionary (d), or contingent (e), which are subject ^le to claims (a) Bills of exchange (Hornblower v. Proud, 2 B. & Aid. 327 ; Edwards v. Cooper, 11 Q. B. 33), shares in joint stock and other companies (Ex parte Burbridge, 1 Deac. Bkcy. 13.1 ; (Ex parte Vallence, 2 Deac. 354) and stock (Brown v. Bellaris, 5 Mad. 53) have been held to be goods and chattels within other statutes ; see also Rumble v. Mitchell, 11 A. & E. 205. Bonds are goods and chattels ; Sims v. Thomas, 12 A. & E. 536. Choses in action were goods and chattels within 21 Jac. 1, c. 19 Ryall v. Rolle, 1 Atk. 165, 182, 163, S. C. 1 Ves. 348), though not always compris- ed by the words ; Hertford v. Lowther, 7 Beav. 1 ; see 46 & 47 Vict. c. 52, s. 168. (b) 13 Eliz. c. 5, s. 2 : Appendix No. I. (c) Ashfield v. Ashfield, 2 Vern. 287. (d) Ede v. Knowles, 2 Y. &. C. Ch. C. 172 : Sexton v. Canney, 8 L. R. Ir. 216. (e) French v. French, 6 D. M. & G. 95. (5103) 18 WHAT KINDS OF PROPERTY to the payment of debts, or liable to be taken in execu- [*18] tion at the time of the fraudulent Conveyance (/) ; but, in general, not any not so liable (g). -The reason of this is, that a settlement of property which creditors could not have got ab puts no property out of their reach, and cannot be fraudulent against them (h) ; and conse- quently, when by a change in the law, certain property is made liable to creditors which before was not so, that property then becomes also liable to the provisions of the statute of Elizabeth (i). Copyholds It was formerly held that copyholds were not within formerly not, the statute. In Mathews v. Feaver (k) Lord Kenyon but now are. (then Sir Lloyd Kenyon) said : "I am not satisfied as to the nature or the value of the copyhold premises, which, generally speaking, are not subject to debts, and therefore the assignment of them can never be fraud- ulent against creditors." By 1 & 2 Vict. c. 110, s. 11 (the Judgment Act, which came into operation on October 1, 1838), copyholds where made liable to be taken in execution by writ of elegit, and therefore, because capable of being taken in execution, came within the statute of Elizabeth (I). Money, So likewise money (m), bonds, and choses in action bonds, choses f a ri ti n( j 8 we re not formerly within the statute, because stock fome* thev could not be reacned b y au execution (n). ly no. Thus, a settlement or transfer of stock, which was not liable to debts or execution in the absence of any (f) Sims v. Tliomas, 12 A. &. E. 536 ; Turnley v. Hooper, 2 Jur. (N. S.) 1081. (g) Sims v. Tliomas, 12 A. & E. 536 ; Turnley v. Hooper, 2 Jur. N.S) 1081 ; and Ridler v. Punter, 1 Cro. Eliz. 291 ; but see post, p. 23. (ft) See Mathews v. Feaver, 1 Cox, 278 ; Turnley v. Hooper, 2 Jur. (N.S.) 1081 ; 1 Story, Eq. Jur. 12th ed. s. 367. (i) See Sims v. Thomas, 12 A. &. E. 536, 554 ; and see Bump. Fr! Conv. (Amer.), 2nd ed. 236. Ik) 1 Cox, 278 ; and see Hassells v. Simpson, 1 Doug. 89-93. (Z) See Scriven, 5th ed. pp.' 39-40. Twyne's Case, 1 Sm. L. C. * 8th ed. pp. 38, 39. (m) Fletcher v. Sedley, 2 Vern. 490 ; Vin. Abr. tit. Fraud. (F), 22, vol. 13, p. 522 ; Ex parte Shortland, 7 Ves. 88 ; Kensington v. Chaniler, 2 Mau. &. S. 36 ; Ex parte Slcerratl, 2 Rose, 384. But see Partridge v. Gopp, Amb. 596 ; et post, p. 22. . (n) Norcutt v. Dodd, Cr. & Ph. 100 ; Edgell v. Havwood, 3 Atk. 352, 356 ; Duffin v. Furness, Sel. Ca. Ch. 77 ; Ashe v. Low, Hayes & J. 287 ; Sims v. Tliomas, 12 A. & E. 536 ; Adames v. Hallctt L. E. 6 Eq. 468. (5104) ARE WITHIN 13 ELIZ. C. 5. 19 lien (o), could not be *set aside as fraudulent [ *19] against creditors (p) ; and although, under the peculiar circumstances of the case in Rider v. Kidder, (q) Lord Eldron, the settlor being dead, allowed the transfer to be made (?•), he seems to have been of opinion that stock was not within the statute of Elizabeth, and as- sented to Lord Thurlow's opinion to that effect in Dun- das v. Dutens (s). In Taylor v. Jones (t), however, the point does not seem to have been raised and a settle- ment of a sum of stock was set aside at the suit of cred- itors. Even before this Act, however, though a settlement Before Judg- of stock could not be impeached during the debtor's life, m ^nt Act, except under a commission of bankruptcy (u), it could be ^ stock™/ got at after his death (v), in the one case, the Court of money void Bankruptcy, and in the other the Court of Chancery, on bank- taking the whole estate into possession for the purpose ™ pt 5 y ° T of administration. After the debtor's decease, also, his S gyj or ° creditors could sue the persons claiming under the fraud- ulent deed as executors de son tort, the property settled being assets in their hands (w) ; from which it may be inferred that a settlement of stock, &c, made before 1 & 2 Vict. c. 110, might be void against creditors if the debtor had become a bankrupt or died. And in the same manner, a settlement of money could be set aside at the settlor's death (x), and though, in his life, it could not be reached by creditors before this (o) Cochrane v. Chambers, note to Horn v. Horn, Amb. 79 ; Nantes v. Corrork, 9 Ves. 189 ; Bank of England v. Lunn, 15 Ves. 569-577 ; McCarthy v. Goold. 1 Ball & B. 389. But see Guy v. Pcarkes, 18 Ves. 197, and Horn v. Horn, Amb. 79. (p) Dundws v. Dutens, 1 Ves. Jun. 196-198. (q) 10 Ves. 360. (r) 10 Ves. 370 n. (50), 2nd ed. See also Eider v. Kidder, 13 Ves. 123; Pringle v. Hodgson, 3 Ves. 617. (s) 1 Ves. Jun. 198; 2 Cox, 235, 240. (t) 2 Atk. 600. As to sequestration of choses in action, see Sim- monds v. Kinnaird, 4 Ves. 735; Wilson v. Metcalfe, 1 Beav. 263. (u) Pringle v. Hodgson, 3 Ves. 617; Eider v. Kidder, 10 Ves. 360, 368. (ti) McCarthy v. Goold, 1 Ball & B. 387, 390; Eider v. Kidder, 10 Ves. 360, 368-9. (to) See 2 Roll. Eep. 173; 2 Ben. & Dal. 94, pi. 16; Vin. Abr. tit. Fraud (C), pi. 5, 7, 8, 11; Kitehin v. Dixson, Gouldsb. 116, pi. 12 Howes v. Leader, Cro. Jac. 271; Edwards v. Harben, 2 T. R. 587 Stamford's Case, 2 Leon. 223; Townshend v. Windham, 2 Ves. 11 Shears v. Sogers, 3 B. & Ad. 362; Shee v. French, 3 Drew 716. (x) Whillington v. Jennings, 6 Sim. 493. As to choses in action, see per Lord Cottenham in Norcult v. Dodd, Cr. & Ph. 100, 102. (5105) 20 WHAT KINDS OF PROPERTY Act by any process at law, it seems questionable wheth- er, in some cases, equity could not have reached it. In [ * 20] Partridge v. Oopp (y), children were * ordered to refund £500 each paid to them by their father, an insolvent executor, for their maintenance. So it was laid down by Lord Cottenham in Norcultv. Dodd, (z) that a chose in action, after the death of the assignor, because it was assets in the hands of the ex- ecutor, could be reached by creditors. Policies of Lord Manners doubted, in Grogan v. Cooke (a), wheth- assurance er policies of life insurance were within the statute; but formerly not. j t ig now se ttled that they are securities for money with- in the meaning of the 1 & 2 Vict, c. 110 (b), and it fol- lows that they are subject to the claims of creditors un- der the statute 13 Eliz. c. 5, and it has in fact several times been so decided (c). Purchase in It was at one time held (d) that, as money could not nameof child then be taken in execution, a purchase in the name of a er third per- c^ia or third person was not within the statute. If the not • ° rmer y conveyance was declared void, the title to the property would remain in the grantor, and therefore the creditors could not seize it; and it was argued that the debtor might have given the money to the child or third per- son, who might himself have made the purchase; and that unless, as Lord St. Leonards expresses it (e), the purchase itself was substantially affected with fraud, the mere fact lhat the money of the debtor was laid out in the purchase of land for the benefit of a child would not be a reason for bringing the purchase within the statute. Thus, also, a purchase by a husband in the joint names (y) Arab. 596. See also East India Co. v. Clavel, Gilb. Eq. Rep. 37; Prec. Ch. 377. (z) Cr. &. Ph. 100, 102. (o) 2 Ball & B. 233. (b) Section 12. Law v. London, &c.sPolicy Company, 1 K. & J. 223; Robson v. McCreiglii, 25 Beav. 272; Stokoe v. Cowan, 29 Beav. 637. (c) SloJcoe v. Cowan, 29 Beav. 637; Jenkyn v. Vaughan, 3 Drew. 419; Skarfv. Soulby, 1 Mac. & G. 364; Penhall v. Elwin, 1 Sm. & Giff. 267; Freeman v. Pope, L. E. 9 Eq. 206, S. C. L. R. 5 Ch. 538; Taylor v. Coenen, 1 Ch. D. 636. (d) Fletcher v. Sedley, 2 Vern. 490; Glaisterx. Hewer, 8 Ves. 199; Duffin v. Furness, Sel. Ca. Ch. 77; Proctor v. Warren, Sel. Ca. Ch. 78; Barrack v. McCiilloch, 3 K. & J., per V. C. Wood, 117-118; and see Dart, V. & P. 5th ed. 938. (e) Sug. V. &. P. 14th ed. p. 706. (5106) ARE WITHIN 13 ELIZ. C. 5. 21 of himself and his wife, though, perhaps, open to more or joint suspicion (/), * has been considered not within [ * 21] £"™ haS r in lf the statute (g), though the question was never fully set- "nd wife ^ tied (h). But now by the Married AV omen's Property Act, 1882 (i), s. 10 (extending the Act of 1870, s. 6), it is provided that "nothing in this Act contained shall give validity as against creditors of the husband to any gift, by a husband, to his wife, of any property which, after such gift, shall continue to be in the order and disposition or reputed ownership of the husband or to any deposit or other investment of moneys of the husband made by or in the name of his wife in fraud of his creditors ; but any moneys so deposited or invested may be followed as if this Act had not passed." This section, which is confined to "moneys," seems to apply at whatever time the fraud is committed. It will be simply a question of fraud or no fraud, as against the husband's credi- tors, in considering the validity of any deposit or invest- ment made by the husband, or wife with her husband's moneys, whether made in the joint names of husband and wife or of husband, wife, and others. If in fraud of his creditors, it cannot be supported as a gift or an advancement to the wife (&). But after a purchase by a man in the names of trus- Purchase tees in trust for such persons, &c, as he should appoint, taken to trus- an appointment by him in favour of wife and children s +?, was, of course, held voluntary, and within the statute ; should a p- for he had in him an equitable estate (I). point. Since January 1, 1838, the date of the operation of Purchase in 1 & 2 Vict. c. 110, money can be taken in execution, name of child and it therefore follows that a purchase in the name of w ^™^ d a child, or wife, or third person on or after that date Within would be within the statute (m). statute. The same seems now to be the settled law in America, where the point has been much discussed in). (/) Christ's Hospital v. Budgin, 2 Vera. 683. (g) Kingdon v. Bridges, 2 Vera. 67. (h) See Lord Hardwieke's observations, Underwood v. Eitcheox, 1 Ves. 280. (i) 45 & 46 Vict. c. 75, s. 10. (k) Be Eykyn, 6 Ch. D. 115. (I) Ashfield v. Ashfield, 2 Vern. 287 ; see Barton v. Vanheythuy- sen, 11 Hare, 126,' 130 ; post, p. 200. (m) Barrack v. McQulloch, 3 K. &, J. 110 ; but see Drew v. Martin, 2 H. & M. 130. (») Bump. Fr. Conv. (Amer.), 2nd ed. 237, 238. (5107) 22 WHAT KINDS OF PROPERTY Sale of prop- [ * 22] * So, too, purchase- money received upon a sale erty and set- of property cannot now be settled so as not to be within tlement of the statute. So Lord Hatherly, then Sir W. P. Wood, moneTwith- VC > said in Barrack v. McCulloch (o): "The late case in the statute of French v. French ( p) shows that property purchased, as it was in that case, with the goods of the debtor is within the statute. The debtor in that case sold his business and stock-in-trade in consideration of a money payment, and also of an annuity to himself and a con- tingent annuity to his wife if she survived him ; and it was held that the annuity so purchased for his wife was a gift to her from her husband, which was void under the statute, as against his creditors." And this principle seems now to apply to such cases, even if the subject-matter of the sale, as the goodwill of a trade, cannot itself be taken in execution (q) But it seems that money voluntarily spent by a hus- band on his wife's property in redemption of the land- tax (r), in building improvements, or the enfranchise- ment of copyholds, even if the husband was then insol- vent (s), cannot be followed by his creditors ; and there- fore is not within the statute. Judgment Act. But by 1 & 2 Vict. c. 110 (the Judgment Act), which came into operation on the 1st of October, 1838, many kinds of property have been made available to creditors for the payment of debts. Copyholds, Since this Act, copyhold land (t), money, and bank- money, notes (m), whether of the Bank of England, or of any cheques, bills q^qj. bank or bankers, and any cheques, bills of ex- ' ' [* 23] change, promissory notes, bonds, * specialties, or (o) 3K. & J. 117, 118. \p) 6 D. M. & G. 95. (q) French v. French, 6 D. M. & G. 95 ; Neale v. Day, 28 L. J. Ch. 45. (r) Burrough's Case, 17 Ves. 267. (s) Campion v. Cotton, 17 Ves. 263 ; and see Hammer v. Tilsey, 1 John. 486 ; Stepney v. Biddulph, 13 W. R. 576 ; Sug. V. & P. 14th ed. 707 ; Dart, V. & P. 5th ed. 938, 939. The contrary is the law in America : see Bump. Fr. Conv. (Amer.), 2nd ed. 239, 240. (t) 1 & 2 Vict. c. 110, s. 11 ; and see Bolt v. Smith, 21 Beav. 511. (w) Section 12 ; Barrack v. McCulloch, 3 K. & J. 110 ; Stokoe v. Cowan, 29 Beav. 637. Money, &c, is subject to seizure in the same way as other chattels were before this Act, except that where money is seized it is not necessary that the form of sale should be gone through : Collingridge v. Paxton, 11 C. B. 683. (5108), ARE WITHIN 13 ELIZ. C. 5. 23 other securities for money (v), and stock and shares in stocks, and public funds and public companies (w), are to be con- shares are sidered as " goods and chattels " within the meaning of n ° w wltnin this section (x); even where, in the case of stock or e s a u e - shares, the provision of the Act as to obtaining a charg- ing order could not be complied with, because the stock or shares were not standing in the name of any one in trust for the debtor, nor of the debtor himself (y). But even now property which is not liable to execu- Property now tion is not within the statute. After the conveyance is within made, alterations of the law, subjecting the property ?! a . t . u * e 1 ° nly comprised in it to execution, do not bring it within the execution °or statute of Elizabeth (z). But, whether the property if settlor ' be capable of being taken in execution or not, if the dead or settlor dies or becomes bankrupt, the property is then bankrupt. brought within the statute (a). The principle is, that to convey away any property against which execution can issue is a fraud on credi- tors, but not a conveyance of that which they could not (but for the conveyance) have touched; so that, by suc- cessive statutes giving creditors power over different kinds of property, the operation of the statute 13 Eliz. c. 5, has been gradually extended. Where, by a subsequent improvement or alteration in improve- the law, a better and more effectual or a different mode ment in of affecting the property by way of execution has been mode of created, it is immaterial so long as there was at the date ^otiertv of the settlement any remedy against the property (b); nor does it make any difference that the new mode has been resorted to rather than that which was alone in force when the deed was executed (c). *A term to which a man was entitled in right [ * 24 ] Term held as of his wife as administratrix of her first husband, or. which administra- tor. (o) Mortgages of realty: Spirett v. Willows, 3 D. J. & S. 293. (w) Sections Hand 15; Warden v. Jones, 2 DeG. & J. 76; Gold- smith v. Russell, 5 P. M. & G. 547. (x) 13 Eliz. c. 5, s. 1; ante, p. 17, as to what are goods and chattels, note (a). (y) Goldsmith v. Russell, 5 D. M. & G. 547-553. (*) Sims v. Thomas, 12 Ad. & E. 536-554; Story, Eq. Jur. 12th ed. ss. 366, 367. Thesame is the law in Upper Canada: see Bank of U. C. v. Shickluna, 107 Chy. 157. (a) See ante, p. 19; and see notes to Twyne's Case, 1 Sm. L. C. 8th ed. 38. (6) See Bump. Fr. Conv. (Arner.), 2nd ed. 236. (c) Blenkinsopp v. Blenkinsopp, 1 D. M. & G. 495-500. (5109) 24 WHAT KINDS OF PROPERTY he held himself as executor, has been held not within the statute (d). Case in Ire- A settlement by a tenant in tail, by which he opened land; estate and resettled his estate on himself for life, with remain- tail resettled ^ eTg 0YeTf jj as been held (e) not to be within the statute, Sue an because "the property was in his dominion either to leave it as he got it, or to convert it, or to convert it so as to become absolutely his own ; but leaving it as it was, the creditor could have nothing except during his life;" and it was said that if he had disentailed the property by one deed and then settled it by another, yet even then it would be difficult to say he could not have removed it from his creditors, the whole being one transaction (/). As in this case the debtor was bank- rupt, so that his assignees would have been able to sell the estate tail (g) if it had not been for the settlement complained of, it must be allowed that the decision is hardly satisfactory, but it seems to be the only authori- ty on the point. Contingent ^ contingent reversionary interest is withi n the statute, interests arjd so is' the settlement of an annuity purchased with the given as part proceeds of the sale of a bankrupt's stock in trade, when of eonsidera- the settlor was in insolvent circumstances (h) tion on sale of 1 J 11 S 1 1 1 GSS The forgiveness by a debtor of a debt due to him, would, of aourse, be within the statute (i) ; or entering into a covenent not to enforce a bond (fc) ; for debtb due to a man are now available to his creditors (I), and with- in the statute. Lease holds. Leaseholds are within the statute, and an asssignment (d) Bidler v. Punter, Cro. Eliz. 291. (e) Clements v. JEccles, 11 Ir. Eq. Eep. 229. (/) Ibid. 238-9. (g) The Irish bankrupt law was then regulated by 12 & 13 Vict. c. 107; see s. 18, re-enacting 6 & 7 Will. 4, c. 4, ss. 78, 91, &c, as to property vesting in assignees, and their powers. And by the English law they then had the same power by 12 & 13 Vict. c. 106, s. 208, incorporating the provisions of the Fines and Eecoveries Act. See 1 Griffith & Holmes, 261. (7t) Ante, p. 22; French v. French, 6D.M.& G. 95 followed by Neale v. Day, 28 L. J. Ch. 45. See Barrack v. McCulloch, 3 K. & J. 110, 117-8. (i) Sibihorp v. Moxom, 3 Atk. 581 ; Henderson v. Lloyd, 3 F. & F. 7. (k) Slack v. Tol'on, 1 Euss. 553. (I) See Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), ss. 60 et. seq. (5110) Debts. ARE WITHIN 13 ELIZ. C. 5. 25 of leaseholds for no consideration is not within the ex- ception in *the statute by the mere fact that [ * '25 ] the grantee becomes liable for the rent (m). The pay or half-pay of officers is not assignable, nor Officers' pay is an office of trust; and therefore no question with re- not within gard to them can arise under the statute (n) ; for noth- s a u e - ing can be taken in execution which is not assignable (o). Before the Married "Women's Property Acts of 1870, Wife's sepa- 1874, and 1882, the wife's separate property not sub- rate property ject to a restraint on anticipation became under certain T ? n i a |?i e circumstances liable to the payment of her debts con- oe f ore ma r- tracted before marriage. By the common law, indeed, riage. the husband was supposed to take all the wife's prop- erty (under certain restrictions as to real property), and for this reason he was liable for her debts (p) — they became his — during coverture (q) ; and this prin- ciple applied whether the wife had or had not property at the time of her marriage (r). But the husband and wife must have been sued jointly for the wife's debt (s), and if- no action was brought during. the coverture, and the wife survived, she remained just as liable for her debts as she was before the marriage; but if an action was brought, and judgment recovered, against husband and wife during the coverture, and the husband became bankrupt, and obtained his discharge, the liability of the husband and of the wife for the wife's debt was gone at law, although the creditor thus lost the chance he would have had 6f recovering against the wife after the husband's death (t). *But the reason of this has been broken in [ * 26 ] (m) In re Ridler, 22 Ch. D., per Cotton, L.J., 82. (n) Stone v. Lidderdale, 2 Anstr. 533; McCarthy v. Ooold, 1 B. & B. 390; Barwick v. Eeade, 1 H. Bl. 627, and cases in note; see also 1 & 2 Vict. c. 110, ss. 55, 56. But see the Bankruptcy Acts, 1869 (32 & 33 Vict. c. 71), s. 89, and 1883 (46 & 47 Vict. c. 52), s. 53, under which part of an officer's pay may be appropriated to paying his debts in his bankruptcy. (o) Bing. on Executions, 104. (p) M' William's Case, 1 Sch. & Lef. 169; Chubl v. Stretch, L. E. 9 Eq. 555. (q) Lockwood v. Salter, 5 B. & Ad. 309. But see now the Mar- ried Women's Property Act, 1870, s. 12; the Amendment Act of 1874, ss. 1, 2, 5; and the Married Women's Property Act, 1862, ss. 14, 15. M Bell v. Stocker, 10 Q. B. D. at p. 130. (s) Mitchinson v. Eewson, 7 T. E. 348. (t) Miles v. Williams^ 1 P. Wms. 249; Lockwood v. Salter, 5 B. & Ad. 303, 309; Woodman v. Chapman, 1 Camp. 188. (5111) 26- MARRIED WOMEN S PROPERTY Separate property lia- ble if hus- band unable to pay; or bankrupt. Settlement to avoid that liability. Biscoe v. upon by the jurisdiction which the Court of Chancery has exercised in protecting property of a wife settled to her separate use. Such property did not become the husband's by the marriage, and even at law, the prin- ciple that such property was liable to her debts, if the husband could not pay them (w), was recognized (v). In equity, though the wife was not and is not person- ally liable (w), after the husband's bankruptcy, a cred- itor of hers, even if he has proved his debt in the bank- ruptcy, could obtain satisfaction out of the wife's sep- arate property (*). As every settlement which takes property out of the reach of creditors of the settlor sa- vours of fraud, a case may be put where a woman be- ing in debt might have made over all her effects in trust, and then have married a bankrupt, and, by that, discharged all her debts, and yet preserved her estate; and that would be a fraudulent conveyance as against creditors quoad so much of the estate as would satisfy their debts, and for that they might have remedy (y). In the old case of Biscoe v. Kennedy (z) personal estate was, on the marriage of B., settled to her sepa- rate use. She was indebted by bond at the time of the marriage; the creditor filed his bill to have this trust property applied to pay his debt, and the bill was dis- missed because the creditor had not done his best to get the money from the husband, but afterwards, the hus- band having absconded and having been outlawed, the creditor filed another bill to make her separate estate liable, contending that the deed was fraudulent against him, and it was decreed in his favour. (it) Biscoe v. Kennedy, 1 Bro. C. C. 17, n. ; cited in Chubb v. Stretch, L. E. 9 Eq. 561. (v) Sparkes v. Bell, 8 B. & C. 1; Lockwood v. Salter, 5 B. & Ad. 303, 312; Chubb v. Stretch, L. E. 9 Eq. 555, 561. (w) Hulmev. Tenant, 1 Bro. C. C. 20, and note 3; Francis v. Wigzell, 1 Mad. 258-264; Alwood v. Chichester, 3 Q. B. D. 722. A married woman cannot now be made personally liable as for a debt, although final judgment can be signed against her under the Married "Women's Property Act, 1882, s. 1 (2). See Brown v. Morgan, 12 L. E. Ir. 122, and Perks v. Mylrea, W.N. (1884) 64 overruling Moore v. Mulligan, W.N. (1884) 34; Gloucestershire Banking Co. v. Phillips, 12 Q. B. D. 533; Bursill v. Tanner. 13 Q. B. D. 691; Meager v. Pellew, 14 Q. B. D. 973. (x) Chubb v. Stretch, L. E. 9 Eq. 555; infra. (jO Per Parker, C.J. (Lord Macclesfield), in Miles v. Williams 1 P. Wms. 249, 257-8. ' (z) Note to Hulme v. Tenant, 1 Bro. C. C. 17; 1 Wh & Tu L C. 6th ed. 536; 2 Eop. Husb. & W. 2nd ed. 240. See the decree in Chubb v. Stretch, L. E. 9 Eq. 562. (5112) WHEN WITHIN 13 ELIZ. C. 5. 27 * In Chubb v. Stretch, (a) a widow, being [ * 27 ] Chubb v. indebted, married Mr. S., and on their marriage a small Stretch. freehold estate of hers and certain sums of money were vested in a trustee for her separate use during the joint lives of herself and her husband ; the wife's creditors in 1868 commenced an action against the husband and wife, but before judgment could be obtained Mr, S. was adjudged bankrupt ; the creditors proved in the bank- ruptcy for the amount of their claim, but there were no assets, and the bankrupt was discharged. The creditors then filed their bill in Chancery against Mr. and Mrs. S. and the trustee of the settlement, for the purpose of having the separate interest of Mrs. S. under the settlement applied in payment of their debt. Sir R. Malins, V. C, held that debts incurred by a married woman might be enforced against her separate estate, and that though personally discharged at law (b) her property remained liable ; and that the creditors were entitled to have their debt paid out of her separate interest under the settlement. The married Women's Property Act, 1870, (c), ex- Married tended the rights in equity of the ante-nuptial creditors "woman's of a woman married on or after the 9th August, 1870, he™*^/ 01 to all her separate property ; and expressly released the nuptial debts husband from any liability in respect thereof. But, by under the this Act, a woman, by merely marrying without any Act of 1870- settlement, could defeat the claims of such creditors altogether ; as her property by the act of marriage be- came her husband's. In Sanger v. Sanger (d) a woman remarried, in 1871, Sanger v. without a settlement, who had incurred a debt before Sanger. her first marriage. She was entitled to an annuity for her separate use, without power of anticipation, under her first husband's will, which was being administered by the Court, and a fund had been set apart in Court to meet this annuity. Judgment had been entered up against her after her marriage for this debt, and sub- sequently an order had been obtained charging the fund with the debt, and interest. On * an [ * 28 ] application for a stop order, it was held that section 12 extended to property subject to a restraint on anticipa- (a) L. R. 9 Eq. 555. (b) Miles v. Williams, 1 P. Wins. 249 ; Atwood V. Chichester, 3 Q. B. D. 722 ; Aylett v. Ashton, 1 My. & Cr. 111. («) 33 & 34 Vict. c. 93, s. 12. (d) L. E. 11 Eq. 470. (5113) 28 MARRIED WOMEN'S PROPERTY London and Provincial Bank v. Bogle. Under the Act of 1874. Under the Act of 1882. tion, and that the charging order was a good incum- brance. So in London and Provincial Bank v. Bogle (e) a woman then in debt settled on her marriage, in 1875, all her property to her separate use without power of anticipation. The creditors, after having obtained judgment against her, brought an action against her, her husband, and the trustees of her settlement, for payment of the debt and costs. Bacon, V. C, said : " This is clearly a debt contracted by the wife before her marriage within the words of section 12 of the Married "Women's Property Act, 1870, and therefore a debt for which her separate estate is liable. What is her separate estate ? Clearly it is her right to receive the income of her settled property. There must be a declaration that the plaintiffs are entitled to recover against the separate estate included in the settlement, notwithstanding the restraint on anticipation, the amount of their judgment debt and costs." The Married Women's Property Act Amendment Act, 1874, which applied to all women married on or after July 30, 1874, left untouched the liability of the wife's separate property for her ante- nuptial debts imposed by the Act of 1870, but created a liability of the hus- band for those debts, limited to the extent of any assets he had or might have received through or in right of his wife (/). So, under the Act of 1870, the separate property of a married woman not subject to the re- straint on anticipation could be taken in execution to satisfy the claims of her ante nuptial creditors (gf). Under the Married Woman's Property Act, 1882 (h), a woman married on or after January 1, 1883, after her marriage continues to be liable in respect and to the extent of her separate property for all her ante-nup- tial debts, as if she were still unmarried. For, it should be observed that by this Act (i) the term separate [ * 29 ] property * acquired an enlarged meaning. It (e) 7 Ch. D. 773 ; and see Williams v. Mercier, 9 Q. B. D. 337, S. C. 10 App. Cas. 1. (f) 37 & 38 Vict. c. 50. ss. 1, 2, 5. ( g) Ex parte Jones, 12 Ch. D. 484 ; Robinson v. Pickering, 16 Ch. D. 660 ; Williams v. Mercier, ' 9 Q. B. D. 337, S. C. 10 App. Cas. 1. (A) 45 & 46 Vict. c. 75, s. 13. (i) 45 & 46 Vict. c. 75 a. 2. (5114) WHEN WITHIN 13 ELIZ. C. 5. 29 now means, 'with reference to a woman who has married since the date of the operation of the Act, all property, real or personal, which belongs to her at her marriage, which she acquires or which devolves on her after- wards (k). As by the husband's death or bankruptcy, or by the Settlements dissolution of the marriage (I), the wife's sole liability by women revived, so that her separate property became liable to before and satisfy her debts, it seemed to follow that any volun- ri when tary dealing with her separate property by a woman, void against so as to put it out of the reach of her creditors (m), ante-nuptial would be void within the statute of Elizabeth against cl ' e( litors. her ante- nuptial creditors. The same might have been said of any voluntary alienation by her, either before or after marriage, of property not settled to her separate use ; inasmuch as, but for such alienation, the property would have gone to the husband, and he could have been compelled to satisfy the debts. Such a settlement, however, would probably have been made on the valuable consideration of marriage. It followed from this that a wife's equity to a settle- Equity of ment which only attached to property which her hus- settlement band took in right of her (n) would not generally be subject to enforced against her creditors before her marriage ; at !jebts nUI) ** least not if her husband was bankrupt, and her debts, contracted before her marriage, exceeded the property on which her equity attached (o). This, of course, cannot be the case with regard to any woman who has married on or after January 1, 1883, as by the Married Women's Property Act, 1882, s. 2, she holds all her property as her separate property in- dependently of her husband ; and therefore the ques- . tion of voluntary alienation of property by her, not set- (fc) Mander v. Harris, 24 Ch. D. at pp. 229-230. (0 Capel v. Powell, 17 C. B. (N.S.) 743 ; Roll. Ab. 337; Chubb v. Stretch, L. R. 9 Eq. 555, Bell v. Stocker, 10 Q. B. D. 128. (m) Of course a gift to her husband would not have had that effect ; but see now the Married Women's Property Act, 1882, ss. 1 (1) and 10. (n) Knight v. Knight, L. R. 18 Eq. 490 ; and see Murray v. Lord Elibank, 10 Ves. 84 ; 1 Wh. & Tu. L. C. 6th ed. 493 et s'eq. ; post, p. 296 et seq. (o) Bonner v. Bonner, 17 Beav. 86 ; Barnard v. Ford, L. R. 4 Ch. 247. 8 STAT. OF ELIZ. (5115) 30 MARRIED WOMEN'S PROPERTY Married Women's Property Act, 1882. tied to her separate use, cannot arise. Neither can this question arise as to the property acquired on or after [ * 30 ] that day by any woman who * has married be- fore January 1, 1883 (o). The husband, moreover, is by the Act of 1874 only liable to the extent of the as- sets he has or might have received through or in right of his wife (p), and by the Act of 1882 to the extent only of all property whatsoever belonging to his wife which he shall have acquired or become entitled to from or through his wife (q). The Married Women's Property Act, 1882 (r), pro- vides that " No restraint against anticipation contained in any settlement, or agreement for a settlement, of a woman's own property, to be made or entered into by herself, shall have any validity against debts contracted by her before marriage, and no settlement or agreement for a settlement shall have any greater force or validity against creditors of such woman than a like settlement, or agreement for a settlement, made or entered into by a man would have against his creditors." This section, which is not retrospective (s), applies to any ante-nuptial or post-nuptial settlement made or entered into by any woman on or after January 1, 1883 (the date of the operation of the Act), but only as re- gards the woman's own property, and also only if made or entered into by her. A settlement, therefore, made on her by a stranger will still be good against her ante- nuptial debts (t). So it seems now to be immaterial whether all the parties interested under the settlement are or are not ascertained, if only the settlement be by a woman of her own property ; an ante-nuptial creditor will be able to resort to the property to satisfy his claim by virtue of this section (u). Settlement This section gives to a settlement made by a woman by married of her own property the same validity against her cred- woman under jtors as a similar settlement made by a man ; it will be when void"' va ^ or invalid under precisely the same circumstance, (o) 45 & 46 Vict. c. 75, a. 5. (p) See above, p. 28. (q) 45 & 46 Vict. c. 75, s. 14. (r) 45 & 46 Vict. c. 75, s. 19. (s) Smith v. Whitlock, 55 L. J. (N.S.) Q. B. 286. (t) But see Sanger v. Sanger, L. E. 11 Eq. 470 ; above, pp. 27-28. (u) Paul v. Paul, 20 Ch. D. 742 ; Hodges v. Hodges. 20 Ch. D. 749. (5116) against her creditors. WHAT SETTLEMENTS WITHIN 13 ELIZ. C. 5. 31 and is equally now within reach of her creditors. Al- though execution cannot issue against a married woman's property generally, but is limited to her * separate property to which a restraint on an- [* 31 ] ticipation is not annexed (v), yet where that restraint on anticipation is imposed by a settlement, or agree- ment for a settlement, made by her of her own prop- erty, execution may issue against that property (w). The statute 13 Eliz. c. 5, extends to all kinds of includes property which may be the subject of a settlement, in- property eluding, of course, a general power of appointment by sub J ect to deed, and indeed any power which is not a bare, naked ofa-Dpoint^ 61 power, but an ownership, so that the alienation of it mea t by- would be prejudicial to creditors (x). deed. But a general power of appointment by deed exer- cisable by a married woman is not her separate prop- erty (y), and therefore is not within the statute; nor is property subject to a particular power of appoint- ment, as among certain persons; for, as the debtor can- not appoint to himself, his creditors cannot claim the benefit of it (z). As to the kind of settlement or alienation which may 'WTiat kinds be set aside as void under the statute, the 1st section of settlement enumerates " feoffment, gift, grant, alienation, bargain, m ^y be set and conveyance of lands, tenements, and hereditaments, asicle - goods and chattels, or any of them, or of any lease, rent, common, or other profit or charge out of the same, ... by writing or otherwise, and all and every bond, suit, judgment, and execution." The jurisdiction of the Court, however, is not to be strictly confined by the words of the statute. The following kinds of settlements have been held to be within the meaning of the statute. A voluntary set- (v) Gloucestershire Banking Co. v. Phillips, 12 Q. B. D. 532; Bursill v. Tanner, 13 Q. B. D. 691. (w) Bursill v. Tanner, 13 Q. B. D. 691. (x) White v. Sansom, 3 Atk. 411; Troughton v. Troughion, 3 Atk. 656; Tnwnshendv. Windham, 2 Ves. 1, 11; Whiitingion v. Jennings, 6 Sim. 493; Sainton v. Ward, 2 Atk. 172; Stilwell v. Mellersh, 20 L. J. Ch. 356, 360; Thompson v. Towne, Prec. Ch. 52; Lassells v. Cornwallis, Prec. Ch. 232. (y) In re Armstrong, 17 Q. B. D. 167, S. C. Ex parte Gilchrist, 17 Q. B. D. 521. (z) See Townshend v. Windham, 2 Ves. 9; and see Bump. Fr. Conv. (Amer.), 2nd ed. 241. (5117) 32 WHAT SETTLEMENTS Settlements within the statute. Voluntary settlements. Settlements for value. tlement (z), a post-nuptial settlement (a), a voluntary- assignment (b), a voluntary assignment after the com- mission of felony, but before conviction (c), a volun- tary settlement reserving to the settlor a life estate de- terminable on bankruptcy (d), a voluntary settlement [ * 32 ] which the settlor * has power to alter or revoke (e), and probably if it can be revoked with the consent of a person nominated by and " at the devotion of " the settlor (/), but not if that consent is of persons not under the control of the settlor (g), and a voluntary settlement by a guarantor of substantially all his prop- erty (h). It would seem that a voluntary settlement of an equity of redemption when the mortgagor cove- nants to pay the interest on the mortgage, and to pay off the principal, is within the statute (i). A settlement, though made for valuable considera- tion, may be affected by mala fides, but those who un- dertake to impeach for mala fides such settlement, have a task of great difficulty to discharge (k). The mere fact that a bon& fide creditor may be defeated is not of itself sufficient to set aside a deed founded on valuable consideration (I). So an ante-nuptial settlement has been held fraudulent and void (m), an assignment of a share in a partnership as against joint creditors (n), a sale of property by an insolvent trader (o), a sale by a father of all his property to his children, although in itself a fair family distribution (p), a separation deed (q), money paid for redemption of the land-tax of land (2) Holmes v. Penney, 3 IC. & J. 99. la) Taylor v. Coenen, 1 Ch. D. 636. (6) Norcutt v. Dodd, Cr. &. P. 100; Stokoev. Cowan, 29Beav. 637. (e) He Saunders, 4 Giff. 179. (d) In re Pearson, 3 Ch. D. 807. (e) Tarbuck v. Marbury, 2 Vern. 510 ; Smiili v. Hurst, 10 Hare, 44. (/) See 3 Rep. 826; Dav. Prec. 3rd ed. vol. 3, 679. (ff) See Buller v. Waterhouse, 2 Jo. 94, decided on 27 Eliz. c. 4; Sug. V. & P. 14th ed. 721. Ih) In re Eidler, 22 Ch. D. 74. (?) Ex parte Huxtable, 2 Ch. D. 54. (7c) Harman v. Richards, 10 Hare, per Turner, L.J., 89. (1) In re Johnson, 20 Ch. D. at p. 396. (m) Bulmer v. Hunter, L. R. 8Eq. 46. in) Ex parte Mayow, 11 Jur. (N.S.) 433. (o) French v. French, 6 De G. M. & G. 95; Wakefield v. Gibbon. 3 Jur. (N.S.) 356. (p) Cornish v. Clark, L. R. 14 Eq. 184; but see In re Johnson. 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503; Ex parte Eyre, 44 L. T. (N.S.) 922. (?) Clough v. Lambert, 10 Sim. 174; Frampton v. Frampton, 4 Beav. 257. (5118) ARE WITHIN 13 ELIZ. C. 5. 33 settled by the settlor or himself and others (r), a trust to carry on a business for the benefit of creditors, if there be a resulting trust in favour of the debtor (s), but not if the trust be primarily for the purpose of sell- ing the business (t). An assignment for the general benefit of creditors is not of itself "within the statute (tt), but it is if made for the purpose of defeating an expected judgment (v). * The exercise of a general power of appoint- [ * 33 J Powers of ment by deed, either over land (tt>), or a sum of money appoint- (x), may be fraudulent and void under the statute, ment - but where a man has only a limited or exclusive power of appointment of course it is different. He never had any interest in the property himself which could have been available to a creditor, or by which he could have obtained credit (y). A disposition of property is equally within the stat- Cause of the ute, wb ether it is by voluntary settlement or by gift, disposition of whether it is in anticipation of death or bankruptcy, or ^thedebtor by the free will of the donor, or whether it is at the immaterial, instance of the donees. The defect of such disposition is that it removes the debtor's property out of the reach of all his creditors (z). So in whatever way the disposition of property be ef- fected, it will be held within the statute, which is general, for the suppression of fraud (a), and a man will not be allowed to do in one way that which he cannot do in another (b) ; so a voluntary post-obit bond (c) and an advancement have been held void (d). A judgment (/), judgments. (r) Emly v. Guy, 3 Mer. 702. (s) Owen v. Body, 5 A. & E. 28; Spencer v. Slater, 4 Q. B. D. 13. (t) Boldero v. lA>ndon and Westminster Loan and Discount Co. , 5 Ex. D. 47. (u) Pickstoek v. Lyster, 3 Mau. & Sel. 371. (u) Reese River Silver Mining Co. v. Atwell, L. E. 7 Eq. 347. (w) Townshend v. Windham, 2 Ves. *1. (a;) Pack v. Bathurst, 3 Atk. 269. (y) See Sims v. Thomas, 12 Ad. & E. 536 ; Hockley v. Mawbey, 1 Ves. Jun. 143, 150 ; ante, p. 31. (2) Cornish v. Clark, L. B. 14 Eq. 189. The same is the law in America ". see Bump. Fr. Conv. (Amer.), 2nd ed. 235. 1 (a) 3 Co. 82 a ; see also Lord Mansfield in Cadogan v. Kennett, Cowp. 434, and ante, p 4. (b) Fitzerv. Fitzer, 2 Atk. 511. (c) Adames v. Hallett, L. E. 6 Eq. 468. (d) Christy v. Courteaay, 1 Beav. 96 ; Barrack v. M' Cuttoch, 3 Kay & J. 110. (/) Clavey v. Hayley, 2 Cowp. 427. (5119) .34 WHAT SETTLEMENTS ARE WITHIN 13 ELIZ. C. 5, Release of debts. Fraudulent outlawry. therefore, or a confession of judgment, for a debt really due (g) and a fortiori where no real debt (h); a fraudu- lent judgment and execution (i); entering into a cove- nant not to enforce a bond (Jc) ; or a transfer or for- giveness of debts due to him by a person indebted (I), are within the statute ; for as debts due to a debtor can now be made available for payment of bis debts (in), the release or alienation of them is an injury to his creditors. But any process by which an alienation of property liable to debts is effected will be within the statute ; so [*34 J that where judgment was * given against one in debt, and he suffered himself to be outlawed in felony to the intent to defraud his creditors, and afterwards purchased a pardon and had restitution, the creditor was allowed to sue out execution on account of the mani- fest fraud (n) ; and by the common law such circuitous evasions of justice were not allowed to take effect (o). So where tenant for life, being in debt, colluded with the remainderman and committed a forfeiture, Sir Matthew Hale was of opinion that creditors were entitled to avoid this as much as any fraudulent conveyance (p). Family set- Settlements which are honest family arrangements tlements not &re regarded with favour by Courts of Equity (q), and are not within the statute, although not founded on actual valuable consideration, unless the rights of ex- isting creditors are thereby directly interfered with (r). Such settlement, if founded on an inadequate consid- eration, will not therefore be held void (s) ; for the Court, in such a case, does not regard the inadequacy of consideration as a badge of fraud (t). Forfeiture. generally within statute. (g) Holbird v. Anderson, 5 T. E. 235 ; Meux v. Howell, 4 East 1. (h) Billiler v. Young, 6 E. & B. 1. (j) Imray v. Magnay, 11 M. & W. 267 ; Hunt v. Hooper, 12 M. & W. 664 ; and see post, pp. 171 et seq. (k) Slack v. Tolson, 1 Buss. 553. (l) Silthorp v. Moxom, 3 Atk. 581 ; Henderson v. Lloyd, 3 F. & F. 7 : Belcher v. Prittie, 10 Bing. 408. (to) Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), ss. 60 et seq. (n) Beverley's Case, 2 Dyer, (Vail, ed.), 245 b, n. (o) Veruey's Case, 2 Dyer, 245 b. (p) Anon. VeDt. 275 ; Vin. Abr. tit. Fraud (F.), pi. 14. (?) Penhall v. Elwin, 1 Sim. & G. 258, 269. (r) Penhall v. Elwin, 1 Sm. & G. at p. 270. (s) Post, pp. 270 et seq. (/) In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503; post, pp. 271, 272. (5120) *CHAPTER II. [*35 WHAT VOLUNTARY CONVEYANCES ARE VOID AS AGAINST ENISTING CREDITORS. In considering whether a conveyance is void under 13 Circum- Eliz. c. 5, all the circumstances at the time that the con- stance at the veyance is made must be looked at, and not subsequent i l lme tn edeed events, except such as must be taken to have been in ^ e looked at. the contemplation of the transferor at the time of trans- ferring the property, and from which a fraudulent in- , tention at that time may be gathered (t). It is very important to keep this in mind, for on this principle, and on this principle alone can the cases be reconciled. The subject, therefore, naturally divides itself into the following two heads. "What state of circumstances at the time of the trans- fer are fatal to the validity of a transfer ? What transfers are fraudulent against creditors, in which the fraudulent intention at the time of the trans- fer is shewn by subsequent acts or events which may in fact have been, or must, in law, be taken to have been, then in the transferor's contemplation? (u). As to the first class of cases, it may be stated gener- ^n V olun- ally that all voluntary transfers of property by a person tary convey- " indebted" according to Lord Hardwicke's meaning, as ances by per- explained by subsequent cases, are void against credi- s ] °" i i , ™" . , tors. The mere fact of a man "indebted" giving away against part of his estate is, by presumption and construction creditors. of law, a fraudulent act. (t) Ante, p. 15, and see Mackay v. Dour/las, L. R. 14 Eq. at p. 120 ; Ex parte Rimell, 19 Ch. D. 588 ; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503 ; In re Maddever, 27 Ch. D. 523 ; Ex parte Mercer, 17 Q. B. D. 290. («) Post ch. iii. ; and see pp. 51-45. (5121) 36 VOLUNTARY CONVEYANCES The principle, as stated by Lord Hatherley, L. C, in ["* 36] Freeman v. * Pope (w), on which the statute of 13 Eliz. c. 5, proceeds, is this that persons must be just before they are generous, and that debts must be paid before gifts can be made. The reason of For where a man indebted gives all his goods to a the rule. son or cousin in consideration of natural affection, lest others should lose their debts, which are things of -value, the intention of the Act was that the considera- tion should be valuable; for equity requires that that gift which defeats others should be made on as high and good consideration as the things which are thereby defeated are ; and it is to be presumed that the father, if he had" not been indebted, would not have dispos- sessed himself of all his goods, and subjected himself to his cradle ; and therefore it shall be intended that it was made to defeat creditors (v). Settlements But, on the other hand, a voluntary conveyance or by persons settlement by a person not indebted, and not meaning a d°ht d" d fr" au d> i s cl ear ly good against future creditors. The not meaning law is perfectly settled that if a man is solvent at the a fraud good time and after the time of taking away the property though vol- wrj ieh is put into the settlement he remains solvent, and nntry. does nQ ^ a ^ ^e time contemplate doing anything which could lead to insolvency, that settlement will be good (w). Fraud, however, of course vitiates the transac- tion — that is to say, where there is an express intent to defraud future creditors it is bad (x) ; but a settlement not fraudulent, by a party not indebted, is valid, though voluntary (y), and cannot be shaken by subsequent debts. Agreement It has never been decided whether a settlement by a when not man indebted, in pursuance of an agreement entered indebted, ^ Q ^ Q wfl en he was not indebted, would be good against when in debt, his creditors. If it were a binding agreement, which («) L. E. 5 Ch. 540 ; and see Ex parte Williams, L. E. 10 Eq. , per Bacon, C.J.B., 61. (v) Twyne's Case, 3 Eep. 81 b. (w) Mackayv. Douglas, L. E. 14 Eq.,.per Malins, V.C. 121 ; post, pp. 45, 53. . (x) Maekay v. Douglas, L. E. 14 Eq. 106 ; Ex parte Russell, 19 Ch. D. 588. The same is the law in Upper Canada : see Bank of British North America v. Rattenburg, 7 Chy. 383. (y) Sir T. Plumer, in Battersbee v. Farrington, 1 Sw. 106 ; Hard- wicke, L.C., in Russel v. Hammond, 1 Atk. 13 ; Townshend, Lord, v. Windham, 2 Ves. 11, 12. (5122) BY PERSONS INDEBTED. 37 could be enforced against him, or if there was an actual completed trust, such a settlement would, *doubt- [ * 37] less, stand ; but it can hardly be thought that the performance, when indebted, of a mere voluntary agree- ment made when in good circumstances, and which he could not be compelled to carry into effect, would be valid (z). Two requisites are necessary for perfecting this con- structive or presumptive fraud under the statute : first, the conveyance must be voluntary ; secondly, the con- veyer must be indebted. The question what conveyances are voluntary will be hereafter discussed (a). The subject of this chapter is, the nature of the in- what i s in- debtedness which vitiates such a transaction. In Towns- debtedness? hend v. Windham (b) a testator had made a voluntary appointment in favour of his daughter, to take effect after his death, and Lord Hardwicke said : "The testator being 'indebted' at the time of the appointment, it was void against his creditors ; " and in Russel v. Hammond (c) the same learned judge observed, that the only vol- untary conveyances which are not fraudulent under this statute are those "where the persons making them are not indebted at the time ; " and in Walker v. Burrows (d) he. spoke of indebtedness at the time, or soon after, as a circumstance from which a fraudulent intention might be collected. Lord Hardwicke, however, spoke of " indebtedness " "What is ' (e) simply, without any definition of its precise mean- meant by the ing, and several varying decisions have resulted from Y -!? * ,) n ~ different interpretations of his words. Sir R. P. Arden used ^ Lord (/) thought the debtor must be in insolvent circum- Hardwicke, stances, and in this he was followed by Lord St. Leon- &e. ards (g); while other opinions are recorded which go quite as far in the opposite direction, laying down that the existence of almost any debt at the time of the (z) See Houghton v. Tate, 3 Y. & J. 486 ; and see post, pt. v. ch. i. (a) Post, pp. 248 et seq. (6) 2 Ves. 1, 10. (c) 1 Atk. 13. ■ (d) 1 Atk. 94. (e) The word is used in precisely the same sense in Worsley v. Demattos, 1 Burr. 468. (/) In Lush v. Wilkinson, 5 Ves. 384. See also Shears \. Rogers, v 3 B. & Ad. 362 ; Norcutt v. Dodd, Cr. & P. 100 ; Skarf v. Soulby, 1M.&6. 364. (g) Martyn v. McNamara, 4 D. & War. 427. (5123) 38 VOLUNTARY CONVEYANCES If settlor owes debts, and necessary result of set- tlement to defeat exist- ing creditors, Court infers fraudulent intention. [* 38] transfer, and remaining unsatisfied, is * enough to avoid the transfer (h). But, as Lord Cottenham said (i) the word " indebted," as used by Lord Hard- wicke in these cases, cannot be considered as meaning only that the settlor owed some debts. It must be re- membered that the statute is couched in very general terms, and makes void all conveyances, made "to the end, purpose, and intent to delay, hinder, or defraud creditors," not restricting the operation to any particu- lar state of circumstances (k) ; and therefore the ques- tion is never, whether there is any one circumstance which has in other cases been looked upon as an argu- ment against the deed (I), but whether, having regard to all the facts of the case, it comes within the purview of the statute, and was made to defraud and delay cred- itors by placing the property out of their reach (m). In the absence of any such direct proof of intention, if a person owing debts makes a settlement which sub- tracts from the property which is the proper fund for the payment of those debts, an amount without which the debts cannot be paid, then, since it is the necessary consequence of the settlement that some creditors must remain unpaid, there would be such an inference of a fraudulent intention as to bring the case within the statute (n), while the mere fact that the settlor is in ' embarrassed circumstances is not of itself a ground from which to infer a fraudulent intention, if the prop- erty left out of settlement is ample to pay all debts then owing (o). Sale for full But where a debtor sells property for an adequate value. consideration, no one is injured (p), for his estate is (7i) Porter v. Boyle, 3 Law Rec. 181, 365 ; Spirett v. Willows, 3 D. J. & S. 293 ; Freeman v. Pope, L. E. 5 Ch. 538. And see post, p. 46 et seq. (i) In Skarf v. Soulby, 1 Mac. & G-. 374-5. lie) See the preamble and operative part : Appendix No. 1. (I) See Clements v. Eccles, 11 Ir. Eq. 229,237. (m) Richardson v. Smallwood, Jac. 55'2 ; Thompson v. Webster, 4 Drew, at p. 632 ; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (X.S.) Ch. 503 ; Ex parte Chaplin, 26 Ch. D. 319 ; Ex parte Mercer, 17 Q. B. D. 290. (n) Freeman v. Pope, L. E. 5 Ch. 538 ; Taylor v. Cremer, 1 Ch. D. 636; Re Ridler, 22 Ch. D., per Cotton, L. J., 82; Ex parte Chaplin, 26 Ch. D. 319; In re Maddever, 27 Ch. D. at p. 526; Green v. Paterson, 32 Ch. t»., per Cotton, L. J., 105 ; post p. 50 ; but see Ex paHe. Mercer, 17 Q. B. D. 290 ; post, p. 74. (o) Kent v. Riley, L. E. 14 Eq. 190 ; White v. Witt, 24 "W. E. 727. (p)Copisv. iViddleton, 2 Mad. 430; Ch. D., per Fry, J., 397. (5124) and see In re Johnson, 20 BY PERSONS INDEBTED. 39 not dimnished by the transaction ; he still has [ * 39] as large a fund as he before had for the satisfaction of claims, though in another form. Lord Langdale, in Townsend v. Wesiacott (q), put Townsend v. the rule as to what is indebtedness on its true princi- Wcstacott, pie, and has been repeatedly followed and approved, tohidebte^ He said that the real and just construction of the stat- nest,. ute does not wan-ant the proposition that the existence of any debt at the time of the execution of the deed was sufficient to induce the Court to set it aside ; be- cause there is hardly any man who can avoid being in- debted to some amount. He may intend to pay every debt as soon as it is contracted, and constantly use his best endeavours and have ample means to do so, and yet may be frequently, if not always, indebted in some small sum. There may be a withholding of claims con- trary to his intention, by which he is kept indebted in spite of himself ; it would be idle to allege this as the least foundation for assuming fraud or any bad inten- tion. That, on the other hand, it had been said that something amounting to insolvency (r) must be proved to set aside a voluntary conveyance ; that this too is in- consistent with the principle of the Act and with the judgments of the most eminent judges. It is not, then, necessary to show actual insolvency, Insolvency but the mere existence of a debt at the time of the set- not neces - tlement is not sufficient (s) ; so that proof of isolated sary- debts is not what is required, except so far as they are ™ f no material as evidence of an intention to defraud credit- ors, or as a foundation for an inquiry as to the state of the settlor's affairs. But if it can be shewn that the settlor, at the time he made the settlement, was indebt- ed to the extent of insolvency, or that he became so by the abstraction of the property comprised in the set- tlement (t), this is enough to invalidate the settlement. (q) 2 Beav. 340, 344. See Sir E. T. Kindersley's judgment to the same effect in Thompson v. Webster, 4 Drew. 628, 632. (r) See infra. (s) Cottenham, L.C., in Skarfv. Soulby, 1. H. & Tw. 426 ; and see Kidney v. Coussmaker, 12 Ves. 148. In Twyne's Case, 3 Co. 81 b, the expression is ' ' greatly indebted ;' ' Crossley v. Elworthy, L. E. 12 Eq. 167 ; Kent v. Riley, L. E. 14 Eq. 190. (I) Smith v. Cherrill, L. E. 4 Eq. 390, 395 ; Hollambyy. Oldrieve, W. N. (1866) 94 ; Denison v. Tatlersall, 18 L. T. (N. S.)' 303 ; Freeman v. Pope, L. E. 5 Ch. at p. 545 ; Taylor v. Co/nen, 1 Ch. D. per Malins V. C, at 'pp. 641, 644 ; Ex Parte JSuxiable, 2 Ch. D. 54 ; Ex parte Russell, 19 Ch. D. 588. (5125) 40 VOLUNTARY CONVEYANCES intention from embar rassed cir- cumstances of settlor. Presumption [* 40 ] * The extent of indebtedness fatal to a volun- of fraudulent tary conveyance as against creditors may shortly be stated as that from which it must be presumed that the intention of the donor was, not to provide honestly for the donees and to put the property out of his own reach, but to do so at the expense of the just claims against him. But " the existence of property at the time of the settlement, not included in it, ample for the payment of debts then due, would negative the fraudulent inten- tion" (u). This principle was clearly stated by Lord Hatherley, L.C., then Sir William Page Wood, V.C., in Holmes v. Penney (v). The mere fact, he said, of a settlement being voluntary is not enough to render it void as against creditors, but there must be unpaid debts which were existing at the time of making the settlement, and the settlor must have been at the time, not necessarily insolvent, but so largely indebted as to induce the Court to believe that the intention was to defraud persons who, at the time of the settlement, were creditors of the settlor (to). Sir W. Fortescue, also, in Taylor v. Jones (x), said : "It is not material in the present case what the circum- stances of the father were at the time of making this deed, any further than as an evidence to shew, if he was in indigent circumstances, that it was made with intent to commit a fraud." So it was said by Sir G. M. Giffard, L.J., in Free- man v. Pope (y) that, if at the date of the settlement the person making the settlement was not in a position actually to pay his creditors, the law would infer that he intended by making the voluntary settlement to de- feat and delay them (z). And it is not now necessary to bring actual proof that the debtor had in his mind an intention to defeat, delay or defraud his creditors (a) ; for, if it appears («) Skarfv. Soulby, 16 Sim. 344, S. C. 1 Mac & G. 364 ; Hol- loway v. Millard, 1 Mad. 414 : Kent v. Riley, L. R. 14 Eq 190 • White v. Wilt, 24 W. R. 727. ' (») 3 K. & J. 90, 99. (w) See also per Sir R. T. Kindersley in Thompson v. Webster, 4 Drew, 628, 632 et seq. ; Freeman v. Pope, L. R. 9 Eq. 206 S C L. R. 5 Ch. 538. ' (a;) '2 Atk. 600-602. ly) L. R. 5 Ch. at p. 545. lz) See Taylor v. Coenen, 1 Ch. D. p. 641. (a) See Freeman v. Pope, L. R. 5 Ch. 538, 540 : Crossley v. El- (5126) BY PERSONS INDEBTED. 41 from all the circnmstances of * the case that [ * 41 ] the effect might be expected to be, and has in fact been, to do so, and that it is not within the proviso (a), the Court will attribute the fraudulent intention to the per- son executing the deed (b). It lies on the settlor to prove that he was not only solvent, but in a position which justified his making a voluntary settlement (c). Where the settlor is shewn to have been indebted, he Whether in must be taken to have known the state of his^ circum- -^ m or t stances, whether he really did so or not ; evidence that he did not will not rebut the presumptive fraud (d). Where the intention to. defraud is manifest, and no Fraud over- other purpose appears, this is sufficient of itself to rides a11 bring the case within the statute, and to override all "iterations other considerations whatever. So a settlement, by a man then owing no debts, and not in trade for eighteen years after, by which the first life estate was to the set- tlor, determinable on his bankruptcy, was held plainly fraudulent, because the intention of the settlor to put his property out of the reach of possible future credit- ors was evidenced by the trust in his own favour (e). The cases (/) in which it has been said that it is ne- insolvency cessary to shew that the voluntary settlor was insolvent means, not may be, in a great measure, reconciled with these au- enough prop- thorities by interpreting the word " insolvent " in the ^{j led ef f or Un ~ sense given to it in Jackson v. Bowley (g), where a vol- payment of untary assignment made by a testator in his lifetime existing was impeached by a creditor, in an action against the debts. executor, on the ground of fraud, suggesting, as proof of fraud, that the testator was insolvent when he made worthy, L. R. 12 Eq. 158 ; Mackay v. Douglas, L. E. 14 Eq. at p. 120 ; Cornish v. Clark, L. E. 14 Eq. 184 ; In re Bidler, 22 Ch. D. 74 • In re Maddever, 27 Ch. D., per North J., 526. (a) 13 Eliz. c. 5. s. 6. See post, pp. 78 et seq. (b) Smith v. Cherrill, L. E. 4 Eq. 390 ; Cornish v. Clark, L. E. 14 Eq. 184 ; Spencer v. Slater, 4 Q. B. D. 13 ; In re Bidler, 22 Ch. D., per Cotton, L. J., at p. 82- ; Ex parte Chaplin, 26 Ch. D. 319 ; Green v. Paterson 32 Ch. D., per Cotton, L.J. 105 ; ante, p. 38 ; but see Ex parte Mercer, 17 Q. B. D. 290. (e) laylor v. Jones, 2 Atk. 600, 603 ; Denison 1. Tattersall, 18 L. T. (N.S.) 303 ; Crossley v. Elworthy, L. E. 12 Eq. at p. 164 ; Mackay v. Douglas, L. E. 14 Eq. at p. 119 ; Taylor v. Coenen, 1 Ch. D. 636. (d) Christy v. Courtenay, 13 Beav. 96, 101. (e) Acraman v.JOorbett, 1 J. & H. 410, 423; Taylor v. Coenen, 1 Ch. D. 636; In re Pearson, 3 Ch. D. 867; and see Learmouth v. Miller, L. E. 2 H. L. Sc. 438. (/) Lush v. Wilkinson, 5 Ves. 384; and other cases, ante, p. 37. (g) Car. & M. 97. . (5127) 42 VOLUNTARY SETTLEMENTS Test -whether voluntary settlement void under Bankruptcy Act, 1869, or under Bankruptcy Act, 1883. the assignment. Mr. Justice Erskine, in summing up, said: " The question is, what is meant by insolvency ? If by the act of assignment the party makes himself [ * 42 ] * insolvent — that is, if the property left after the conveyance is not enough to pay his debts — that is insolvency sufficient for the purposes of the plaintiff in this action" (h). This is the sense in which the term insolvency is now applied. To uphold a voluntary settlement, the settlor must, at the time of making it, have property enough left out of settlement to meet all his existing debts and liabilities (i), and such property must be then actually available assets for that purpose (fc). This was the test applied by the Bankruptcy Act, 1869, to all voluntary settlements made by traders more than two but within ten years before their bankruptcy. If such a settlement was so impeached, the burden of proof lay on the settlor to shew that at the date of its execution he was able to pay all his debts in full without the aid of the property comprised in such set- tlement (I); that is to say, the settlor must have been able without such property to pay his debts out of ac- tually available assets in the way which he proposed to pay them — that is, by continuing his business (m). This will be the test of capacity to pay debts under section 47 of the Act of 1883, cited below. The same test is applied by the Bankruptcy Act, 1883 (n), to all voluntary settlements, whether made by trad- ers or non-traders; and in addition to uphold the set- tlement it must be shewn that the interest of the set- tlor in the property passed to the trustee of the settle- ment on the execution thereof. The 47th section enacts that " any settlement of prop- yl) See also per Lord Tenterden, in Shears v. Rogers, 3 B. & Ad. 362, 369; and Clements v. Secies, 11 Ir. Eq. 237. ' (t) Freeman v. Pope, L. E. 5 Ch. at p. 545; Kent v. Riley, L. E. 14 Eq. 190; Taylor v. Coenen, 1 Ch. D. 636; Ex parte Huxiable, 2 Ch. D. 54. As to how to estimate these.see post, pp. 57 etseq. (k) Ex parte Russell, 19 Ch. D. 588; In, re Ridler, 22 Ch. D. 74. (1) Ex parte Huxtahle, 2 Ch. D. 54; and see 32 & 33 Vict. c. 71 s. 91. (m) Ex parte Rttssell, 19 Ch. D. 588. (n) 46&47 Vict. c. 52, repealing 32 & 33 Vict. c. 71; see schedule 5. (5128) UNDER BANKRUPTCY ACTS. 43 erty not being a settlement made before and in consid- Voluntary eration of marriage, or made in favour of a purchaser settlements or incumbrancer in good faith and for valuable consid wit hm two eration, or a settlement made on or for the wife or chil- bankruptcy dren of the settlor of property which has accrued to the absolutely settlor after marriage in right of his wife, shall, if the void, settlor * becomes bankrupt within two years after [*43 ] the date of the settlement,be void against the trustee in the bankruptcy, and shall, if the settlor becomes bank- rupt at any subsequent time within ten years after the Within ten date of the settlement, be void against the trustee in years void- the bankruptcy, unless the parties claiming under the a ^ le - settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had passed to the trustee of such settlement on the execu- tion thereof. Any covenant or contract made in con- sideration of marriage for the future settlement on or for the settlor's wife or children of any money or prop- erty wherein he had not at the date of his marriage any estate or interest, whether vested or contingent, in pos- session or remainder, and not being money or property of or in right of his wife, shall, on his becoming bank- rupt before the property or money has been actually transferred or paid pursuant to the contract or cove- nant, be void against the trustee in the bankruptcy." " ' Settlement ' shall, for the purposes of this section, include any conveyance or transfer of property." Under section 49 of the Bankruptcy Act, 1883, an Saving of exception is made in favour of all and any dealings purchasers with the bankrupt for valuable consideration before the for value date of the receiving order by a person who has not without then had notice of any available act of bankruptcy committed by the bankrupt before that time. In section 91 of the Act of 1869 the word purchaser ~ , was held to mean a buyer in the ordinary commercial ^at un( je r sense, and not a purchaser in the legal sense, of the Bankruptcy word ; so that a trustee of a post-nuptial settlement of Acts- leaseholds though liable to pay the rent and perform the covenants in the lease, was not a purchaser for value within the section (o). The same meaning will apply in section 47 of the Act of 1883. (o) Ex parte Hillman, 10 Ch. D. 622 ; In re Sidler, 22 Ch. D. 74. (5129) 44 VOLUNTARY SETTLEMENTS : Bankruptcy It has been held (p) that the act of 1869, section 91, Acts retro- applied to settlements executed before as well as after spective. the _^ c t came j n t operation. The corresponding sec- tion of the Act of 1883 (q) will be also, it is conceived, deemed to be retrospective. Covenant. [ * 44 ] * A covenant by a trader, in a settlement, in consideration of marriage, to settle all his future acquired property, although he was then solvent, was held void within section 91 of the Act of 1869, on the ground that he could not, even for the consideration of marriage, withdraw from his creditors any future prop- erty he might acquire, if at the time his creditors had the right to be paid out of the property (r). A similar covenant by a non-trader will now be held void within section 47 of the act of 1883. Cases section 47 will cover. It will be observed that section 47 of the Bankruptcy Act of 1883 imposes a new condition, in requiring those who claim under the settlement to prove that the interest of the settler in the property parsed to the trustee of the settlement on the execution thereof. This meets cases where there is a mere contract, such, for instance, as in Ex parte Bishop (s), where a cove- nant is contained in a post-nuptial or other voluntary settlement to pay a sum of money or to transfer secu- rities to trustees, and the same has not been actually paid or the securities transferred. It was held in Ex parte Bishop (s) that a covenant in an ante-nuptial settlement to pay a sum of money to the trustees was not within section 91, and that the section did not apply to what was a mere debt due from the settlor. This condition will also apply to a class of cases, such as In re Andrew's Trusts (t), but where the.settle- ment is voluntary. In that case a trader by ante-nup- tial settlement covenanted to settle any property he should acquire under his father's will, by virtue either of a limited power of appointment therein, or in default of such appointment. It was held that as he then had an interest under the will, vested, but subject (p) Ex parte Dawson, L. B. 19 Eq. 433. tq) 46 & 47 Vict. e. 52 s. 47. (r) Ex parte Bolland, L. E. 17 Eq. 115. (s) L. E. 8 Ch. 718. (i) 7 Ch. D. 635. (5130) KNOWLEDGE OF VOLUNTEERS. 45 to be divested by an appointment, it was not within section 91. A settlement, however, may still be voluntary, and, when volun- whether made by a trader or a non trader, if only it is tary settle- not impeached within ten years of the date of its exe meat good cution, will be a good settlement under the Bankruptcy ,. UP tc V Acts" Act; but under the statute of Elizabeth such settle- bntnot under ment is liable to be impeached at any time, until the statute of legal right of the creditor is barred by the Statutes of Ellza "eth. Limitation (w). *In cases of voluntary conveyances it mat- [* 45 ] In voluntary ters not whether or not the donee had knowledge or conveyances notice of the fraudulent intent, for they are not within ° n J lr >tent the exception in favour of bona fide purchases by per- material. sons "not having, at the time of such conveyance or as- surance to them made, any manner of notice or knowl- edge of such covin, fraud, or collusion" (w). Where the conveyance is voluntary it is the motive of the giver, not the knowledge of the acceptor, that is to weigh (x) ; for volunteers cannot be said to be injured by the gift to them being defeated; no loss is inflicted on them; they are only deprived of a gain to which others had a better right (y). But the Court will not allow a vol- unteer to be placed in a worse position than he was in before by the avoidance of a deed tainted with a fraud of which he was innocent (z). A voluntary settlement may, however, be rendered void by the motives of the donees, even if the donor has no intention to defraud his creditors; but whether it is by the free will of the donor, or whether it is at the instance of the donees, such a settlement may be equally invalid having regard to the scope and object of the statute (a). But it is proved by many cases that where the settle- Voluntary ment was not executed under such circumstances as to settlement, when good. (u) Ante, p. 42 ; post, pp. 96, 184. ho) 13 Eliz. c. 5, s. 6; post, pp. 78 et seq. (x) Per Lord Northington in Partridge v. Gopp, 2 Amb. 596; Mackay v. Douglas, L. B. 14 Eq. 106. The same is the law in America. See Bump. Fr. Conv. (Amer.), 2nd ed. 263. (y) So, by the civil law: "Cui donatum est .... necvidetur affiei injuria is qui ignoravit, cum lucrum extorqueatur non dam- num infligatur. " Dig. lib. 42, tit. 8 r par. 6 sec. 11. (z) Tarlelonv. LicldeV, 17 Q. B. 390, 4 De G. & Sm. 538. (a) Cornish v. Clark, L. R 14, Eq. 184. - 9 STAT. OF ELIZ. (5131) -16 VOLUNTARY SETTLEMENTS shew that fraud was intended, or to induce the presump- tion of such intention, the mere fact of its being volun- tary, and not even supported by meritorious considera- tions (b), will not make it void against creditors, either existing or future (c). [ * 46 ] *For, as Lord Hardwicke said in Walker v. Burrows (d), "Where a man has died indebted, who, in his lifetime, made a voluntary settlement, upon appli- cation to this Court to make,it subject to his debts as real assets, the Court have always denied it, unless you shew he was indebted at the time the conveyance was executed,;" words which clearly shew that Lord Hard- wicke used the word "indebted" as meaning "embar- rassed." Justice of the The distinction, says Fonblanque, is drawn from con- opposite siderations too obvious to require illustration. For if a doctrine. man "indebted" were allowed to divest himself of his property in favour of his wife or child, his creditors would be defrauded; but if a man not indebted and not meaning a fraud (e) could not make an effective settlement in favour of such objects, because by possi- bility he might afterwards become indebted, it would destroy those family provisions which are, under certain restrictions, a benefit to the public, as well as to the in- individual objects of them (/). Spirit v. This long-settled doctrine received a shock from the Willow*. decision in the case of Spirett v. Willows (g). In that case the plaintiff sued as a creditor for a debt contracted before, but due very shortly- after, the execution of a vol- untary settlement made by a settlor then solvent. The (6) Holloxoay v. Millard, 1 Mad. 414, 418: Kent v. Riley, L. E 14 Eq. 190. (e) Townshend v. Windham, 2 Ves. 1, 11, ante. p. 15; Russell v. Hammond, 1 Atk. 13; Tovmsend v. Westacott, 2 Beav. 340; Skarfr Soulby, 1 Mac. & G. 364, 374-375; Battersbee v. Farrington, 1 Sw.' 106; Holloway v. Millard, 1 Mad. 414-418; Lilly v. Osborn 3 P. "Wms. 298; Marty n v. McNamara, 4 D. & War. 427; Tlwmpson v Webster, 4 Drew. 628; Exlon v. Scott, 6 Sim. 31; French v. French 6 De G. M. & G. 95, 101; Clements v. Eccles, 11 Ir. Eq. 229 237- Gugen v. Sampson, 4 F. & F. 974; post, pp. 61 et seq. ; contra Por- ter v. Boyle, 3 Law Bee. 181, 365; Spirett v. Willows, 3 D J & S. 293; Kent v. Riley, L. E. 14 Eq. ante, p. 36. (d) 1 Atk. 94. (e) Holloway v. Millard, 1 Mad. 414, 419; Walker v Burrows 1 Atk. 93-4; Murphy v. Abrahams, 15 Ir. Ch. Bep. 371-378- Kent v. Riley, L. E. 14 Eq. 190; While v. Witt, 24 W. E. 727; ante, 'p 36 (/) 1 Fonbl. Eq. 270. ' ' e (g) 3D.J.& S. 302. (5132; AS AGAINST EXISTING DEBTS. 47 settlor had spent all his other assets after the making of the settlement, and before the debt fell due. Lord West- bury, L. C, said: "The defence is, that at the time of making the settlement the debtor reserved and had property enough to pay the plaintiff and all his other creditors in full, and that the settlement therefore is -not fraudulent, because the debtor remained solvent after he had made it. " There is some inconsistency in the decided cases on the subject of conveyances in fraud of creditors; but I think the following conclusions are well founded. If the debt of the creditor by whom the voluntary settle- ment is impeached existed at the date of the settlement, and it is shewn that the remedy of the creditor is de- feated or delayed by the existence of the settlement, it is immaterial whether the debtor was or [ * 47 ] was not solvent after making the settlement." "It is obvious that the fact of a voluntary settlor re- taining money enough to pay the debts which he owes at the time of making the settlement, but noiTactually paying them, cannot give a different 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 whose debts existed at the time are ' delayed, hindered, or defrauded.' I am, therefore, of opinion that this settlement is void as against the plaintiff." The decision in Spirett v. Willows (h) was directly Spircli v. opposed to several cases in which a voluntary settle- Willows -con- ment has been supported, notwithstanding a prior debt remaining unsatisfied (i), and to the principle of those cases in which it has been held that a single debt at the time of the settlement would not do (k) ; and that the settler must be shewn to have been so largely indebted (ft) 3 D. J. & S. 293. (i) East India Co. v. Clarcl, Prec. Ch. 377, Gilb. Rep. 37 ; TJiompson v. Webster, 4 Drew. 628 ; Turriley v. Hooper, 2 Jur. (N.S.) 1081 ; Extonv. Scott, 6 Sim. 31 ; Manders v. Manders, 4 Ir. Eq. 434. (7c) Lush v. Wilkinson, 5 Ves. 384 ; Kidney v.- Coussmaker, 12 Tes. 148 ; Shears v. Sogers, 3 B. & Ad. 362 ; Martyn v. McNamara, 4 D. & War. 411, 427 ; Skarf v. Soulby, 1 Mac. & G. 374-5 ; Jack- son v. Bowley, Car. & M. 97 ; Richardson v. Smallwood, Jac. 552 ; Holmes v. Penney, 3 K. & J. 90 ; Townsend v. Westacott, 2 Beav. 340 ; Turnlevv. Hooper, 3 Sm. & Giff. 349 ; ante, pp. 37 et seq.; 1 Fonbl. Eq. 279. (5133) 48 VOLUNTARY SETTLEMENTS as to induce the presumption of a fraudulent intention, and that a man may make a good voluntary settlement though indebted to some extent (I), and that "it would be absurd to suppose that a person worth £10,000, and settling £1000, such settlement could be impeached" (m). Freeman v ^ n Freeman v. Pope, (n), where a voluntary settle Pope. ' ' ment of a policy of insurance on the settlor's life was made by a settlor really insolvent at the time of making it, and not in a position to make any settlement what- ever, the case of Spirett v. Willows, (o) was considered by Lord Hatherley, L.C., and Sir G. M. Giffard, L.J. It was there said by Lord Hatherjy, L.C. : Sxnrett v C * ^8] *" Of course there may be cases — of which Willows ex- Spirett v. Willows, (p) is an instance — in which there plained as a is direct and positive evidence of an intention to de- case of plain f raU( i independently of the consequences which may defraud have followed, or which might have been expected to follow, from the act. In Spirett v. Willows, (p), the settlor, being solvent at the time, but having contracted a considerable debt which would fall due in the course of a few weeks, made a voluntary settlement by which he withdrew a large portion of his property from the pay- ment of debts, after which he collected the rest of his assets and (apparently in the most reckless and profli- gate manner) spent them, thus depriving the expectant creditor of the means of being paid. In that case there was clear and plain evidence of an actual intention to defeat creditors. But it is established by the authori- ties that, in the absence of any such direct proof of in- tention, if a person owing debts makes a settlement which subtracts from the property which is the proper fund for the payment of those debts, an amount with- out which the debts cannot be paid, then, since it is the necessary consequence of the settlement (supposing it effectual) that some creditors must remain unpaid, it would be the duty of the judge to direct the jury that they must infer the intent of the settlor to have been to defeat or delay his creditors, and that the case is within the statute." (0 Ibid. (m) Per Lord Cranworth in French v. French. 6 De G. M. & G. 95, 101; see also Dewey v. Baynlun, 6 East,' 257; Clements v. Eccles, 11 Ir. Eq. 229, 236-7 ; post, p. 55. (») L. R. 5 Ch. 540, 541 ; but see Ex parte Mercer, 17 0. B D 290. (o) 3D.J.& S. 293. (p) 3D.J.& S. 293. (5134) AS AGAINST EXISTING DEBTS. 49 It was also there said by Sir G. M. Giffard, L.J. : " In this case I quite agree with the Vice-Chancellor The ]aw as in thinking that if the propositions laid down in Spirett laid tlown in v. Willows are taken as abstract propositions, they go Spirett v. too far, and beyond what the law is ; but if they are '^'"°" ,s too taken in connection with the facts of that case, then, un- doubtedly, there is abundantly enough to support the decision, for there was a voluntary settlement by a man who, at its date, was solvent, but immediately after- wards realized the rest of his property and denuded himself of everything. Of course the irresistible con- clusion from that was, that the voluntary settlement was intended to defeat the subsequent creditors. That being so, I do not think that the Vice-Chancellor need have felt any difficulty about the case of Spirett v. Wil- lows, but he seems to have considered that, in order to defeat a voluntary settlement, there must *be [ * 49] proof of an actual and express intent to defeat creditors. That, however, is not so. There is one class of cases, no doubt, in which an actual and express intent is necessary to be proved — that is, in such cases as Holmes v. Penny (q) and Lloyd v. Attwood (r), where the in- struments sought to be set aside were founded on valu- able consideration ; but where the settlement is volun- tary, then the intent may be inferred in a variety of ways. For instance, if, after deducting the property which is the subject of the voluntary settlement, suffi- cient available assets are not left for the payment of the settlor's debts, then the law infers intent, and it would be the duty of a judge, in leaving the case to the jury, to tell the jury that they must presume that that was the intent. Again, if, at the date of the settlement, the person making the settlement was not in a position actually to pay his creditors, the law would infer that he intended, by making the voluntary settlement, to de- feat and delay them. " Now, in this case, at the date of the settlement, Mr. Custance was really insolvent ; and if at the date of the settlement the bankers had insisted on payment, and had issued execution, they could not have got a present payment unless they had resorted to that particular policy. That being so, it seems to me that the facts of this case bring the matter entirely within all the decided n 3 K. & J. 90. 3 l)e G. & J. 614. (5135) 50 VOLUNTARY SETTLEMENTS Rule laid down by Lord West- bury. True prin- ciple now. cases, and it ia enough to say that at the date of this settlement Mr. distance was not in a position to make any voluntary settlement ■whatever." The judgment of Lord Westbury in Spirett v. Willows (s) may now, it is submitted, be taken merely to have established this proposition — that a settlement by a man, owing any debt, of all his property available to pay that debt, is within- the very words of the statute, and fraudulent and void against that debt (t). The general proposition laid down in that case by Lord Westbury (u) was dissented from in Freeman v. Pope, (v) which has been repeatedly followed. The principle of law seems now firmly established, and is this. A valid voluntary settlement may now be made by a [ * 50 ] settlor * indebted at the time, provided that ample available assets are left out of settlement to meet those debts, whether the debts are actually then payable (w), or not (x). Same in The same is the law in America (y), and also in America and Upper Canada (z). Upper The general principle is, that the intention of the settlor at the time when he made the settlement, and as inferred from all the circumstances at that time, is the test of fraud (a) ; and that a voluntary settlement by (s) 3. D. J. & S. 293. (t) See Freeman v. Pope, L. E. 5 Ch. at p. 545. («) 3 D. J. & S. at p. 302. (v) L. R. 5 Ch. 538. (w) Freeman v. Pope, L. R. 5 Ch. 538, supra, p. 47 ; Kent v. Riley, L. R. 14 Eq. 190 ; Ex parte Suxtable, 2 Ch. D. 54 ; but see Spirett v. Willows, 3 D. J. & S. at p. 302. (x) In re Ridler, 22 Ch. D. 74. (y) Bump. Fr. Conv. (Amer.), 2nd ed. 275. (z) O'Doc/heriy v. The Ontario Bank, 32 C. P. 285. (a) See Stone v. Grubham, 2 Buls. 225 ; Nunn v. Wilsmore, 8 T. R. 521 ; Meux v. Howell, 4 East, 1 ; Taylor v. .Jones, 2 Atk. 600, 602-3 ; Wri.ron v. Cotter, 1 Ridgw. P. C. 302 ; Graham v. Furber, 14 C. B. 410; Richardson v. Smallwood, Jac. 552; Henderson v. Lloyd, 3 F. & F. 7 ;' Holt v. Kelly, 13 Ir. L. Rep. 33 ; Ware v. Gardner, L. R. 7 Eq. 317; and, by the civil law there was the same kind of intention inferred from the circumstances : "Quamvis non propnatur consilium fraudandi habuisse, tamen qui creditores habere se scit et universa bona sua alienavit, intel- ligendus est fraudandorum creditorum consilium habuisse." I)ig. lib. 42, tit, viii. par. 17, sec 1 ; and see Sir R. T. Kindersley's judgment in Thompson v. Webster, 4 Drew. 628, 632 ; In re John- son, 20 Ch. D. at p. 394, S. C. 51 L. J. (N.S.) Ch. 503 ; In re Maddever, 27 Ch. D. 523 ; Ex parte Mercer, 17 Q. B. D. 290. (5136) .Canada. Intention of settlor at the time. AS AGAINST EXISTING DEBTS. 51 \ a person not deeply indebted, and not with a fraudu- Bona fide lent intention, is good, although the settlor afterwards voluntary becomes indebted (a). But a voluntary settlement clcc '! 1 K " 0(l made in 1858, by a settlor owing no debts at the time, ^bsequeiit and not a trader till 1873, which gave the settlor a life creditors, estate determinable on bankrupcy, was held fraudulent within this statute, because it so dealt with his prop- erty as to disappoint the just claims of his creditors (6). Again, it has been laid down that no inquiry as to Inquiries the state of the settlor's circumstances when he made directed < nly the settlement will be directed unless a debt at that w . llen l 51 '^" , . , , / „ . . vious debt time can be proved (c) ; in one case an inquiry was proved. refused, although a small debt owing at the date of the settlement was in evidence (d). But in Taylor v. Coenen (e) * although there was no proof that [ * 51 ] any debt was contracted before the date of the first of two voluntary settlements, inquiries were directed as to the state of the settlor's affairs at the date of each of those settlements. Where, at the time when the settlement was made, c aa creditors there remained property, not included in it, ample and be delayed by available for the payment of debts (/), and no special a settlement circumstances of fraud, how can it be said that any w rS n . . creditor was either defrauded or delayed by the settle- then able to ment ? If he had at once taken steps to recover the pay all liis amount due to him, the settlement would have been no debts? obstacle to his getting his money ; but if he neglects to do that, and waits until, by a reverse of circumstances, the settlor becomes embarrassed, it is his own laches, (a) Per Lord Hardwicke in Bussel v. Hammond, 1 Atk. 13 ; Walker v. Burrows, 1 Atk. 94 ; and Townshettd v. Windham, 2 Ves. 1, 10; Sir Lord Kenyon in Stephens v. Olive, 2 Bro. C. C. 90 ; and Sir T. Plnmer in Holloway v. Millard, 1 Mad. 418 ; Clements v. Eeeles. 11 Ir. Eq. 229, 237 ; Gugen v. Sampson, 4 F. & F. 974 ;. Crossley v. Elworihy, L. E. 12 Eq. 167 ; Mackay v. Douglas, L. E. 14 Eq. 121 ; Kent v. Riley, L. E. 14 Eq. 190; White v. Witt, 24 W. E. 727 ; ante, p. 36. (6) In re Pearson, 3 Ch. D. 807, post, p. 68 ; see Learmouth v. Miller, L. E. 2 H. L- Sc. 438. (e) Lush v. Wilkinson, 5 Ves. 384 ; see 12 Ves. 148 ; Noreutt v. Dodd, Cr. & P. 100 ; Skarfv. Soulby, 1 Mac. & G. 364 ; Holloway v. Millard, 1 Mad. 414 ; post, pp. 516-518. (d) Manders v. Manders, 4 Ir. Eq. Eep. 434. (e) 1 Ch. D. 636. (/) See the Bankruptcy Acts, 1869, s. 91, 1883. s. 47 ; ante, pp. 42, 43, 50 ; Kent v. Riley, L. E. 14 Eq. 190 ; While v. Wilt, 24 W. E. 727. (5137) 52 SETTLEMENTS BY TRADERS and not- the settlement, which has prevented him from being paid in full (gr). The question, whether a voluntary settlement can stand against creditors at its date, does not depend on whether they are willing to forego the immediate pay- ment of their debts, if then due ; but on this question, whether they are entitled 'to press for payment, and, if so, whether they can get a present payment without resorting to the property in settlement (h). If they are so entitled, and cannot get such a payment, the set- tlement is fraudulent and void against them. Settlements There is a special class of cases, in which voluntary by men about settlements made by persons who shortly afterwards go to trade of j n ^ i raa - e have been held fraudulent and void within whole or bulk ,, RtahlJ .„ of property tDe statute - void. The principle of the decisions is that a man who is about to engage in a hazardous business is not entitled, [ * 52 ] whether owing any * debts or not, to settle the whole or the bulk of his property, so as to put it out of the reach of his creditors. Crossley v. Elwortliy. In Crossly v. Elworthy (i) a voluntary post-nuptial settlement was made by the managing director of a company, who became insolvent within nine months af- terwards. Some of the debts due from him at the date of the settlement remained unpaid at the date of the suit. At the date of the settlement the settlor had in- curred heavy liabilities as a surety for the company on a mortgage debt of £35,000 as indorser, without con- sideration, of certain bills of exchange drawn by the company, and then current, and in respect of very large (g) Clements v. Eccl.es, 11 Ir. Eq. 229, 237. Trustees, who are only bound to take the same care of property intrusted to them as if it were their own (Morley v. Morley, 2.Ch. Ca. 2 ; Jones v. Lewis, 2 Ves. 240), ought not to leave property outstanding on personal security, and must, if necessary, commence legal pro- ceedings : Lowson v. Copeland, 2 Bro. C. C. 156 ; Bailey v. Gould, 4 Y. & C. Ex. Ca. 221 ; Powell v. Evans, 5 Ves. 839 ; Caney v. Bond, 6 Beav. 486 ; Fenwiek v. Greenwell, 10 Beav. 412 ; Ticlcner v. Smith, 3 Sm. & Giff. 42, 46 ; unless they can shew reasonable grounds for believing that legal proceedings would have been useless : Hobday v. Peters, 28 Beav. 603. (h) Freeman v. Pope, L. E. 5Ch. 543, 545 ; In re Bidler, 22 Ch. D. 74 ; Green v. Paterson, 32 Ch. D per Cotton, L. J., 105 ; ante, p. 50. (0 L. E. 12 Eq. 158 ; and see Ware v. Gardner, L. E. 7 Eq. 317. (5138) OK MEN ABOUT TO TRADE. speculative transactions on the Stock Exchange. After the date of the settlement, a judgment was obtained against him for a sum of £36,'252 8s. on account of false and fraudulent misrepresentations made by him before the date of the settlement. Sir R. Malins, V.C., held the settlement within the purview of the statute and void against creditors. He there said : "Now, considering that he (Mr. Elworthy) had made a settlement only nine months previously, I think that state of things is sufficient to relieve those who desire to impeach the settlement from proving in- solvency, and to throw upon Mr. Elworthy the burden of proving that he was in a position to make the settle- ment. The general policy of the Act of 13 Eliz. c. 5, is, that those who are engaged in the transactions of life, buying or selling, or otherwise indebted, are not, by means of a voluntary settlement, to take their prop- erty out of the reach of their creditors. If a man does, under such circumstances — that is, when it is doubtful whether he is in a solvent condition, and, if so, whether he is likely to remain so — make a settlement, it seems to me in the highest degree reasonable that upon him should be thrown the burden of proving that he was in a condition to make it when it was executed" (fc). Af- ter examining the state of the assets and liabilities, and citing the cases of Townsendv. Westacott (I) and Skarf v. Soulby (m), his Lordship continued : "It is clear that, though the mere fact of a man being indebted is not fatal to a settlement, it is not necessary to* prove actual insolvency, but if insolvency takes place shortly after the execution of the settlement, that is enough." * This decision has been followed in the cases of [*53] Mackay v. Douglas (n), and In re Pearson (o), in which last case there was no debt due at the date of the settle- ment still unpaid, and also in Taylor v. Coenen (p), where the settlement was of a very trifling amount com- pared with the amount of the business. In Ex parte, Russell (q) the settlor's debts exceeded his available assets at' the date of his settlement, by which he settled (k) Crossley v. Elworthy, L. E. 12 Eq. at p. 164. (?) 2 Beav. 340. (m) 1 Mac. & G. 364. (n) L. E. 14 Eq. 106. See post, p. 65. (o) 3 Ch. D. 807. See p. 68. (p) 1 Ch. D. 636. (?) 19 Ch. D. 588. See post, p. 66. (5139) 54 CIRCUMSTANCES OP SETTLEMENT. substantially the whole of his property upon his -wife and children. It was held that the settlement was plainly void, because its object was to protect him against the eventuality of bankruptcy — to save the prop- erty for his wife and children in case the new business should not succeed (q). Insolvency The mere fact of subsequent insolvency, if it does will not avoid n0 ^ resu lt from the conveyance, or if it could not be re- deed if it eroded as -within the contemplation of the settlor at the could not o •-i-ijp-i-ii. '-i,i t t have been time of the conveyance, will not of itself avoid the deed. foreseen. Thus, when a man is solvent at the time of the settle- ment, but becomes insolvent the next year by reason of some unexpected loss which he could not have fore- seen, such settlement will not on that account be held void (r). So in America a voluntary settlement will be upheld, even if the property left unsettled turns out to be in- adequate to pay all the settlor's then existing debts — if, but only if,' this inadequacy can be proved to be due to some accident which the settlor could not guard against, as sudden losses in trade, or fire, or storms (s). In America I 11 America, where the statute has been adopted, there doctrine of has been a similar divergence from the general con- tipirett v. struction in this respect in a case (t) where it was said b m ht f that, if a person indebted makes a voluntary settlement ward and it i 8 presumed to be fraudulent in respect to such debts subsequently (that is, those antecedently due), and no circumstance overruled. W {]1 permit those debts to be affected by it or repel the presumption; that the presumption does not depend on the amount of debts or the extent of the property in [* 54] settlement,or the *circumstances of the party; for to attempt aline of distinction would be embarrassing,if not dangerous, to the rights of creditors, and prove an inlet to fraud. In America, however, the doctrine has, by decision of the Supreme Courts, been brought back to its former position, and there, and now in England, the law may be said to be that the mere fact of the set- tlor being indebted to a small amount will not make a deed fraudulent even against existing creditors; but (q) This principle has been followed in America and Upper Canada: Buekland v. Rose, 7 Chy. 440; King v. Keating, 12 Chy 29; Bump. Fr. Conv. (Amer.1, 2nd ed. 310. (r) Hblloway v. Jlillard, 1 Mad. 414; Mackay v. Douqlas, L fi 14 Eq. 121. J ' (s) Bump. Fr. Conv. (Amer.), 2nd ed. 285, 286. (t) Reade v. Livingston, 3 Jon. Ch. Eep. 500. (5140) PROPERTY WITHDRAWN FROM CREDITORS. 55 the fact of his being so deeply indebted as to be insolv- ent without the settled property always makes his vol- untary settlement void against creditors (u). The way in which a voluntary settlement is regarded Voluntary with respect to all the circumstances of the settlor, may ? e ^ d j, ' ,e be seen from Lord Cranworth's remarks in Goldsmith v. the ctrcuni- Russell (v). In that case A.', in the same month in stances of the which the plaintiff obtained judgment for his debt, and settlor. being otherwise largely indebted, conveyed his interest in certain real estate to trustees to sell, and settled the proceeds of the sale on his wife and children. His Lordship remarked, on the state of circumstances which led to the settlement — that it was not one which A. was in any way bound to make; it was said to have been made in pursuance of a previous parol agreement; this allegation was very loosely made; it seemed to have rested on understanding only; it was not obligatory; which of itself would be sufficient to bring the case within the statute of Elizabeth ; but besides this, there was much contrivance to shew that the settlement was for value when it was not; the transaction might have been bona fide, but it took place on the eve of the judg- ment being entered up, and the story as to money hav- ing been paid and then returned for the purpose of paying urgent claims, was very improbable. His going abroad on account of ill-health just at the time when his creditors were most urgent, was a very suspicious occurrence; and upon all the * circumstances [ * 55 ] of the case, his Lordship came to the conclusion that the whole transaction was a fraudulent contrivance con- cocted when the settlement was made. The amount of property withdrawn by the settlement Amount from liability to the claims of creditors must be taken settled into consideration ; for a person may, although indebted ma erla ' at the time, settle some portion of his property, pro- vided that enough is left for satisfying his debts. («) Hinde's Lessee v. Longworlh, 11 Wheaton, 199; Sexton v. Wheaton. 8 Wheaton, 229, 230; Salmon v. Bennett, 1 Connect. Rep. 525, 548 et seq. ; Jackson v. Town, 4 Cowen, 604; Verplank v. Sterry, 12 Johns. (Amer.), 536; Bump. Fr. Conv. (Amer.), 2nd ed. 273,' 274, 276; 1 Story, Eq. Jur. 12th ed. 355, 362, 364, 365; Richardson v. Rhodrn, 14 Eich. S. C. 95, 19 L. T. (N.S.) 106; Bdbcock v. Eckler, 24 New York, 623; and Sedgwick v. Place, 25 L. T. (N.S.) (Amer.), 307. (v) 5 De Gr. M. & G-. 547, 555. See also Richardson v. Small- wood, Jac. 552, 557-558; Abbott v. Burbage, 2 Bing. N. C. 444; Freeman v. Pope, L. E. 5 Ch. 538; Ex parte Russell, 19 Ch. D. 588. (5141) 56 MERITORIOUS CONSIDERATION. Thus, it would be absurd to suppose that a person worth £10,000 and settling £1000, such settlement could be impeached ; but if, having £10,000 and owing that amount, he settled £5000, it would be clearly a fraud (w). Policies of assurance on the settlor's own life are securities for money under 1 & 2 Vict. c. 110 (x), and liable to be taken in execution during the debtor's life and on his bankruptcy pass to his trustee. • So a settlement of policies of assurance on the settlor's life was declared fraudulent and void against his cred- itors within this statute, and assets for payment of his debts (y). So also in a trial by jury, it is material to submit to them the relative value of the property withdrawn from the reach of the creditors in proportion to the amount ?n ™l mltted of their demand at the time, and the value and tangi- bility of that substituted in its place, in aid of the con- clusion whether or not the deed was covinous against them (z). For the purpose of having these facts in- quired into and fully stated to the jury, a new trial was granted where the verdict had been given, founded on — 1. The previous embarrassment of the husband; 2. The want of notoriety of the conveyance at the time; 3. The want of an inventory ; 4. The continuance of the husband in possession consistently with the deed, but without notice of the change of property ; and 5. The appropriation by the husband to his own use of a part of the money raised by the trustees of the settle- ment (a). Value, &c, of property unsettled to to jury. _ Settlement which does not with- draw any property from credi- tors not fraudulent. But where the effect of a settlement, made even by a person largely indebted, is not to withdraw any portion [ * 56] of the debtor's *property from the power of creditors, but merely to vary the investment, this set- tlement will not be within the statute. Thus, where property was settled to such uses as the husband and wife should jointly appoint, and subject thereto to the husband in fee, and the wife joined in appointments by way of mortgage to raise the purchase-money for other estates which were settled on her and her husband, it (to) French v. French, 6 De G. M. & G-. 95-101. See also Clem- ents v. Eccles, 11 Ir. Eq. Rep. 229, 236-237 ; Kent v. Riley, L. E. 14 Eq. 190 ; Taylor v. Coenen, 1 Ch. D. 636. (x) Supra, p. 20. (y) See Taylor v. Coenen, 1 Ch. D. 636, 641, 642 ; and Freeman v. Pope, L. R. 5 Ch. 538. (a) Dewey v. Bayntun, 6 East, 257, 282. , (a) Dewey v. Bayntun, 6 East, 257. (5142) LIABILITIES OF SETTLOR. 57 was held that this second settlement was not voluntary nor void against the prior creditors (b). The Court, in deciding questions on this statute, Meritorious places conveyances on meritorious consideration on the consideration same footing as those which are purely voluntary (c). In fact, a gift to a relative is frequently open to more Gift to rela- suspicion than one to a stranger; for where a man, tive open to being greatly indebted to sundry persons, makes a gift mOTe sus Pi- cion til in one to his son without consideration, but only of nature, to „ s t lant rer the law intends a trust between them, scilicet, that the donee would, in consideration of such gift being volun- tarily and freely made to Him, and also in considera- tion of nature, relieve his father or cousin, and not see him want who had made such a gift to him (d). For these reasons the Court feels bound to decide for credi- tors against a wife and children ; for though it always has great compassion for a wife and children (e), yet, on the other side, it is possible, if creditors should not have their debts, their wives and children may be re- duced to want (/). But the mere fact of selling to a relative is not of itself an evidence of fraud (g), and in the absence of anything fraudulent the Court will not say that a man may not sell to a relation on better terms than he would have to give to a stranger (h). So when a bon& fide and honest instrument is exe- cuted for which the consideration is partly meritorious and partly valuable, and the instrument is one between relatives, the Court cannot say that the difference be- tween the real value of the estate, and the *con- [ * 57] sideration given is a badge of fraud, and if it is not a badge of fraud, or evidence of an intention to defeat creditors, it. has no relation to the case (i). (b) Acraman v. Corbett, 1 J. & H. 410. See Jones v. Boulter, 1 Cox, 288. (e) Strong v. Strong, 18 Beav. 408 ; Holloway v. Millard, 1 Mad. 414, and see In re Johnson, 20 Ch. D. 389 ; S. C. 51 L. J. (N.S.) Ch. 503. The same is the case in Upper Canada. See Merrill v. Mies, 28 Chy. 346. (d) Twyne's Case, 3 Rep. 81 b ; Cornish v. Clark, L. R. 14 Eq. 184. (e) A provision for children is said to he founded on an equita- ble consideration : 'Eigden v. Vallier, 2 Ves. 258. (f) Taylor v. Jones, 2 Atk. 600-3. (g) Copis v. Middleton, 2 Mad. 423 ; In re Johnson, 20 Ch. D. 389. (h) Per Lord St. Leonards, in Moore v. Crofton, 3 J. & Lat. 443 ; post. p. 81, note (y). (i) In re Johnson, 20 Ch. D., per Fry. J., 391, 397. (5143) 58 LIABILITIES OP SETTLOR tlement. Liabilities In examining the position of the settlor's affairs, the estimated at true test is, what is the nature and extent of his liabili- date of set- f.j eg a ^ ^ e fo me f making the settlement ? Those liabili- ties, whether they consist of debts actually due, or soon due or of merely remote and contingent iiabilities,must be estimated as a reasonable and not a sanguine man would estimate them, taking a reasonable view of what seems likely to happen (k). It seems at least doubtful whether a voluntary settlement of all the settlor's property, even if not a trader, can in any case be supported against any even contingent liability, if that liability ripens into an actual debt (I). Xature of debts owing by settlor. Mortgage debt of no importance. The question is varied also by the nature of the debt owing; the existence, for example, of a mortgage debt is of no importance (?n). The subsequent voluntary conveyance cannot possibly affect the mortgagee's rights; for, if the mortgaged property is comprised in the vol- untary deed his claim is paramount to that of the vol- unteers, whose right can only extend to the equity of redemption, and if the settlement is of other property than that mortgaged it does not touch the mortgagee, •for he has still the security for which he bargained. And on the general question of the state of the settlor's affairs, a mortgage debt may be considered merely a conversion of a certain portion of land into money, or as a reduction pro tanto of the settlor's property available to creditors, which is material in a calculation of how much he was worth at the time as against debts due. So a voluntary settlement of property subject to a mortgage with a covenant by the settlor to pay off the mortgage debt and to pay the interest on it, was held void, under the Bankruptcy Act, 1869, s. 91, because the settlor thereby left out of settlement an amount of assets insufficient to pay both the mortgage debt [ * 58 ] * and his other debts; though if the settlement had been of the equity of redemption only, the settlor's other assets were ample to pay his debts at the time of the settlement (w). A mortgage debt is not of itself a debt within the statute, though if the property mort- (k) Crosslcy v. Elworthy, h. R. 12 Eq. 167, Ex parte Russell, 19 Ch. D. 588; In re Midler, 22 Ch. D. 74, 82; Ex parte Mercer, 17 Q B. D. 290. ' ^ (I) Inre Ridler, 22 Ch. D. per Selborne, L. C, 80. (m) Stephens v. Olive, 2 Bro. C. C. 90; Lush v. Wilkinson, 5 Ves. 384: Jenkynv. Vaughan, 3 Drew. 419-426; Manders v. Manders, 4 Ir. Eq. 434, 438; Ware v. Gardner, L. E. 7 Eq. 317. (n) Ex parte Huxidble, 2 Ch. I). 54. (5144) AT DATE OF SETTLEMENT. gaged proves insufficient the unpaid surplus is a debt (o). The giving of a mortgage on property is merely the exercise by the debtor of a legitimate mode of conferring a preference or priority on a particular creditor, which the mortgagor can exercise as to all or any part of his property, 'without the transaction falling within the sta- tute, so long as it is bona fide — that is to say, so long as the mortgagor does not retain any benefit for him- self (p). If the liabilities are due to large and very fluctuating transactions on the Stock Exchange, it would increase the difficulty of the settlor to prove his solvency at the time of the settlement (q). So the amount due from a partner to or on account of his firm, at the time of his making a voluntary settle- ment of part of his property, must be treated as one of his then existing debts (r). So a merely contingent debt, as a covenant by a hus- band to pay a sum of money to his wife if she survived him, has been held enough to avoid a voluntary settle- ment (s), but not when the settlor owed no money at all at the date of the settlement, and the contingency was a claim for damages in an action started just before its execution (<). A guarantee given by a person who settles the bulk of his property must be regarded as a contingent lia- bility, against which available assets should be provided, in order to support such settlement. For the guarantee must be viewed as if the event had already happened, the possibility of which the parties must have had in contemplation when the guarantee was given of the debtor being unable to pay. The state of the assets of *the guarantor is the question which the Court [ * 59 ] considers. The guarantee must not be regarded as a liability which might never become a debt («). (o) Post, pp. 163,164; Earmanv. Richard.%10 Hare,81post, p. 269. (p) Middleton v. Pollock, 2Ch. D. 104; Ex parte Games, 12 Ch. D. 314. (g) Crossley v. Elworthy, I,. R. 12 Eq. 164, 166. (r) Denisonv. Tattersall, 18 L. T. (N.S.) 303. (s) Rider v. Kidder, 10 Ves. 360. (t) Exparte Mercer, 17 Q. B. D. 290. («) In re Ridler, 22 Ch. D. 80, 82. (5145) GO ASSETS OF SETTLOR. Nature of assets. Indeed, it was said by Lord Justice Turner, in Good- riche v. Taylor (v), that "Every surety must be taken to contemplate that he may be called upon to pay the debts for which he is surety, and he can no more be justified in placing the whole of his property out of the reach of his liability to pay them, than if he were the principal debtor." So damages recovered in an action begun after the settlement in respect of misrepresenta tions made before it, will be considered as part of the settlor's liabilities (w). And in like manner the nature of the assets is to be taken into consideration. For the purposes of this stat- ute the test is, as under the Bankruptcy Acts, 1869 and 1883 (x), whether the assets are available for creditors at the time the settlement is made. Assets must be available at date of settlement. This principle seems to have been adopted in Free- man v. Pope (y). The settlor held two livings, pro during a net income of £815, and a government life annuity of about £180. Lord Hatherley, L.C., said : " When the settlor had made the voluntary assignment of the policy, he stood in this position, that he had lit- erally nothing wherewithal to pay or to give security for the debt of £489, except the surplus value of the furniture, which must be taken to be worth about £200, and he was clearly and completely insolvent the mo- ment he had executed the settlement, even if we assume that some portion of his tithes and of the annuity was due to him ; " giving him credit only for the amount actually due on account of the annuity and tithes at the date of the settlement. The ground of this was that as the settlor could not at once put his hands upon the sum of £489, so as to apply it towards satisfying the debt, the act of making the settlement shewed an intention to delay creditors. So the goodwill of a business cannot be reckoned as [ * 60 J an asset, * nor can the plant of an iron and coal partnership, because it is not available (z). So the value of implements of trade and fixtures should M 2 Be G. J. & S. 141. (w) Owsley v. Elworthy, L. R. 12 Eq. 158, 168, 169 ; and see Ex parte Mercer, 17 Q. B. D. 290. (x) Ex parte Russell, 19 Ch. D. 598. (y) L. R. 5 Ch. 538, 542, 543 ; ante, p. 47. See French v. French, 6 De G. M. & G. 106 ; Ex parte Russell. 19 Ch. D. 588. (z) Dennison v. Tattersall, 18 L. T. (N.S) 303 ; Ex parte Rus- sell, 19 Ch. D. 588. / (5146) ASSETS OF SETTLOR. 61 only be reckoned at the value they would fetch by a forced sale, and not at any fancy price which the set- tlor might choose to put on them (a). The fair way, under the Bankruptcy Acts, 1869 and 1883, to value the assets of a trader who is carrying on his business is to consider the position he is assuming, and to see whether he can pay his debts in the way in which he proposes to pay them — that is, by continuing his busi- ness (6). So a debt due to the settlor by a person for whom he was a guarantee cannot be treated as an avail- able asset (c). So the fact that the assets have been lost or rendered unavailable to pay debts not payable at the time of the settlement, as by an investment in a solid undertaking to which a heavy or an unlimited liability attached, will not nf itself bring the settlement within the stat- ute (d). Where a trader carried on his business up to the time of his death, the Court will act upon the valuation made by a competent valuer, both as regards his stock and the bills for which the deceased may have been liable, as its sole basis (e). The same principles of estimating the liabilities and assets of the settlor at the time of executing the volun- tary settlement obtain in America (f). (a) Ex parte Russell, 19 Ch. D. 597 (&) Ex parte Russell, 19 Ch. D., per Lindley, L.J., 601. (c) In re Bidler, 22 Ch. D. 80. (d) Freeman v. Pope, L. E. 5 Ch. 538 ; In re Bidler, 22 Ch. D. 79. e) Taylor v. Coenen, 1 Ch. D. 640. '/) See Bump. Fr. Conv. (Amer.), 2nd ed. 279-285. 10 STAT. OF ELIZ. (5147) [ * 61 ] * CHAPTEE III. VOLUNTAEY CONVEYANCES AS AGAINST SUBSEQUENT CREDITORS. P in off I T wou ld be very inconsistent with the generally bene- debts owing ficial effect of the statute if the rights of creditors as nt time of against a voluntary conveyance by a person in embar- settlement ragse d circumstances could be defeated by the formal thf fresh tU " object'on that the debts which were owing when the wiilf not make deed was executed had been paid off and replaced by good a volun- fresh liabilities. It is clear, therefore, that if a man tary settle- un( } er those circumstances made a voluntary convey - m ance or settlement, and then made an arrangement by which the existing creditors were paid off and new creditors substituted, the conveyance or settlement would be void against such subsequent creditors (g). The ground on which such a settlement is held void as against subsequent creditors is that it would have been held void if impeached by the existing creditors, and that the substitution of a new set of creditors, being merely a device to evade the statute, is a fraud upon that statute. Thus where (h) the voluntary settlor was, at the time of the settlement, indebted to the plaintiff on the balance of a mining account, and after- wards paid on account large sums, exceeding the debt due prior to the deed, but the balance against him kept increasing until his death, the settlement was set aside. But, if such settlement could not be impeached by the existing creditors, the mere fact of substituting a (g) Bichardson v. Smallwood, Jac. 552 ; Holmes v. Penney, 3 K. & J. 100. ' (h) Whittington v. Jennings, 6 Sim. 493. Freeman v. Pope, L. R. 9 Eq. 206, S. C. 5 Ch. 538, was in fact much the same sort of case. But see White v. Witt, 24 W. R. 727. And so by the civil law: "Si illos dimisit quorum fraudandorum causa fecit, et alios sortitus est, si quidem simpliriter dimissis prioribus quos fraudare voluit, alios postea sortitus est, cessat revocatio. Si autem horum quas pecunia fraudare noluit priores dimisit quos fraudare voluit " it shall be void. Dig. lib. 42, tit. viii. par. 10 sec. 1. (5148) VOLUNTARY CONVEYANCES. 6S fresh set of creditors could not of itself render the settlement void against subsequent creditors (»). * Where the settlement was allowed to be [* 62 J Doubt acted on for a considerable time and was founded on whether ... -j ,. •, ,1 , , , debts prior or meritorious consideration, and there was a doubt subsequent. whether the plaintiff's debt accrued till after the set- tlement, Lord Hardwick refused to interfere (fc). It is clear, moreover, that where, at the suit of prior -yyhen set creditors, an order is obtained setting aside a settle- aside by prior ment or other fraudulent alienation of property, that creditors, all property becomes liable to the claims of all the credit- ? redltors le t ors generally, and subsequent creditors are let in and participate pro rata (I). This is analogous to the old bankrupt law, which Analogy in affected traders only, and under which it was held that old bankrupt a trader, after having retired from business, could not * aw - be made a bankrupt for debts contracted after he retired, but that, if the old creditors sued out a com- mission, the new creditors should be admitted to have a share of the estate (m). This participation of subsequent creditors, at first Seems con- sight, seems contrary to the express words of the Act, trary to the which declares fraudulent deeds, &c, void " only as words of the against that person or persons, &c, whose actions, s a u e " suits, &c, are, shall, or might be, in anywise disturbed, hindered, delayed, or defrauded." But a construction has been adopted more congenial to the general spirit of the enactment, which (as so often declared) is to be construed liberallly in the suppression of fraud and for the benefit of creditors. For the Statute speaks of those who might be hindered •, and when a man is prejudicing his existing creditors, he is doing an act by which all creditors, present and future, might be defrauded. It has never been determined that, in order to make void a deed, the creditor must be actually hindered or delayed (n) ; and " if a debtor makes a (i) Kent v. Riley, L. R. 14 Eq. 190. [k) White v. Sansom, 3 Atk. 411. (V) Jenkyn v. Vaughan, 3 Drew. 419 ; Richardson v. Smallwood, Jac. 552 ; St. Amand v. Countess of Jersey, Com. Rep. 255 ; Beau- mont v. Thorpe, 1 Ves. 27 ; Strong v. Strong, 18 Beav. 408 ; Taylor v. Jones, 2 Atk. 600 ; and see. Gugen v. Sampson, 4 F. & F. 974 ; and see post, pp. 68 515. (m) Meggot v. Mills, 1 Ld. Raym. 286-7. (re) Richardson v. Smallwood, Jac. 552 ; Graham v. Furber, 14 C. B. 410 ; Jenkyn v. Vaughan, 3 Drew. 419. (5149) 64 VOLUNTARY CONVEYANCES fraudulent gift to defraud one creditor only, it is void against all creditors and all forfeitures" (n) ; and that it is the law is well established by high authority from an [ * 63 ] early * period. Lord Hardwicke said, in Walker v. Burroios, (o),that, "if there had been proof that Bur- rows (the settlor) was indebted at tbe time, it would have run on so as to take in all subsequent creditors." And so in Townshend v. Windham, (p) the same great judge said he knew of no case upon the statute 13 Eliz. c. 5 where a man indebted " made a voluntary con- veyance and died indebted, but that it should be con- sidered part of his estate for the benefit of his creditors. The case of Kidney v. Coussmaker (q) might be thought to be at variance with this doctrine. There Sir W. Grant said that, though there had been much controversy and a variety of decision upon the question whether such a settlement is fraudulent as to any cred- itors except such as were creditors at the time, he was disposed to follow the latest decision, that of Montague v. Sandwich (r), that the settlement is fraudulent only against such creditors as were creditors at the time. * But this, it seems, does not mean that the settlement, though set aside against prior creditors, was good against debts subsequently contracted, but that the question, whether the settlement was fraudulent or not, depend- ed on whether there were prior creditors and the amount of their debts; and to ascertain this an inquiry was di- rected; and Montague v. Sandwich (s) is open to the same construction (t). Voluntary conveyance by persons indebted may be set aside by sub- sequent creditor. Where a voluntary settlement has been made by a person "indebted" (u), any creditor who was such at the date of its execution, or who became such after that date, so long as any one of the original creditors is still unpaid, can impeach the settlement (v). (n) Per Sir W. Jones in Turoerville v. Tipper, Palm. 415, n. ; ante, pp. 40, 41 ; post, pp. 98, 99. (o) 1 Atk. 94. lp) 2 Ves. 11 ; and see Beaumont v. Thorpe, 1 Ves 27. (q) 12 Ves. 136-155. (r) 12 Ves. 148. (s) 12 Ves. 148 n., 155, n. (t) See Hallway v. Millard, 1 Mad. 414, 421. (u) Ante, pp. 35 et seq. (v) Jenkyn v. Vaughan, 3 Drew. 419; Freeman v. Pope, L. E. 9 Eq. 206, S. C. 5 Ch. 538; post, pp. 518 et seq. (5150) AND SUBSEQUENT CREDITORS. 6& If such settlement was made by a person at that time really insolvent, that is to say, not in a position to make any settlement whatever, that settlement may be im- peached by a creditor, though * subsequent — [ * 64 ] though no debt is proved to exist which was contracted at the date of the settlement (v). This leads to the inquiry, what will make void against Voluntary subsequent creditors a voluntary settlement which is settlements not to be presumed fraudulent merely because of the g^f^ent settlor's embarrassed circumstances when he made it ? creditors. Where the settlor was not indebted at the time, the onus of proving the fraud is thrown on those who im- peach the settlement, for fraud is not to be presumed. The facts that all the debts due at the date of the set- tlement have been paid since, and that the only debts due are those subsequently contracted, negative the in- ference of intent to defeat, delay, or defraud creditors drawn from indebtedness at the time (w). The mere fact of subsequent indebtedness is not evidence of a fraudulent intent against subsequent creditors (x). But where the settlement is impeached on the ground of the settlor's having become actually insolvent soon after the date of the settlement, it lies on him to shew he was in a position to make the settlement (y). If bona fide, the settlement will stand, though voluntary; "but if any mark of fraud, collusion, or intent to deceive sub- sequent creditors appears, that will make it void" (z). In the preamble the object of the statute is declared to be for the avoiding, &c, of feigned, covinous, and fraudulent feoffments, &c, devised and contrived, &c, to delay, hinder, or defraud creditors and others of their Creditors and just and lawful actions, &c. The statute is for the pro- others - (v) Crossley v. Elworthy, L. E. 12 Eq. 158; Taylor v. Coenen, 1 Ch. D. 636. (w) Jenkyn v. Vauglian, 3 Drew. 425; and see Smith v. Tatton, L. E. 6 Ir. 32. (x) Smjith v. Tatton, L. E. 6 Ir. 32; Exparte Mercer, 17 Q. B. D. 290; and see Bump. Fr. Conv. (Amer.), 2nd ed. 310. (y) Per Sir T. Plunier in Richardson v. Smallwood, Jac. 552- 557; and see Bock v. Dade, post, App. No. XIII. ; Crossley v. El- worthy, L. E. 12 Eq. 158; MacTcay v. Douglas, L. E. 14 Eq. 106; In re Pearson, 3 Ch. D. 807; Exparte Russell, 19 Ch. D. 588; post, p. 520. (z) Per Lord Hardwicke in Tovmshend v. Windham, 2 Tes. 1- 11; Ware v. Gardner, L. E. 7 Eq. 317; Alton v. Harrison, L. E. 4 Ch. 626; Middleton v. Pollock, 2 Ch. D. 108; Ex parte Games, 12 Ch. D. 324; Smith v. Tatton, L. E. 6 Ir. 32. (5151) VOLUNTARY CONVEYANCES. uor v. Jones. Stileman v. Ashdown. teetion of creditors and others, not creditors only (a). The word " others," it has been said, seems to be in- serted with the express intention that the operation [ * 65 ] may not be * confined to those who are credi- tors at the time; and in the enacting clause the word "creditors" is not used, but general words, "person or persons," pointing more strongly in the same direction. "The words of the statute, therefore," it was said, " seem to be so general, in order to take in all persons who shall be anyways hindered or delayed" (b); and the ques- tion being, whether the debts contracted after the set- tlement were included in this statute of 13 Eliz. c. 5, it was decided that they were, there being an intention at the time of defrauding future creditors. It appears, though, that in this case there were debts prior as well as subsequent to the settlement, and it has been several times decided that the settlement is fraudulent only as against such creditors as were creditors at the time (c). But it does not appear that there was in those cases anything from which an intention of defrauding future creditors could be collected; the weight, too, of Lord Hardwicke's authority is the other way, and, as usual, he has been followed in later cases. Thus, in Stileman v. Ashdown (d) he said: "It is not necessary that a man should be actually indebted at the time he enters into a voluntary settlement; for if a man does it with a view of being indebted at a future time it is equally fraudulent, and ought to be set aside." Settlement The principle laid down by Lord Hardwicke in Stile- bymanabout man v. Ashdown (e) has been followed in and extended to trade. t tLe case of a man who actually contemplates, or may be considered to contemplate, going into trade. Mackay v. In Mackay v. Douglas (/) the settlor, shortly before Douglas. engaging in a hazardous trade, settled by a post-nup- tial settlement the great bulk of his property upon his wife, himself, and children. Nine months after this, he became bankrupt. No debt was still owing which had been incurred before the date of the settlement. (a) Holmes v. Penney, 3 K. & J. at p. 100. (bj Per Sir William Fortescue in Taylor v. Jones, 2 Atk. 600. (e) Kidney v. Coussmaker, 13 Ves. 136; and Montague v. Sand- wich, there cited pp. 146, n., 155, n. ; see ante, p. 63. (d) 2 Atk. 481; and see Townshend v. Windham, 2 Ves. 11, et supra. (e) 2 Atk. 481. (/) L. E. 14 Eq. 106, 122 ; ante pp. 51 et seq. (5152) AND SUBSEQUENT CBEDITORS. 67 It was held by Sir E. Malins, V.C., that the settle- ment was fraudulent and void, because it was made with a view to a state of things in which the settlor might become indebted at a future *time. That [ * 66] was upon the broad ground that a man who contem- plated going into trade could not, on the eve of doing so, take the bulk of his property out of the reach of those who might become his creditors in his trading operations (/). So in Ex parte Russell (g) where a trader, indebted Ex parte but not insolvent at the time, settled substantially the Sussel1 - whole of his property on his wife and children before going into a new trade, it was held, following Mackay v. Douglas (h), that the settlement was void, because its object was to screen his wife and children from the risks of the unknown adventure, and to preserve his property from his future creditors. One thing noticed by Lord Hardwicke in the case of Marks of Stileman v. Ashdown has since then been frequently fraud — regarded as a mark of fraud against future creditors. 1- Generality He there said, " What can be more favourable for the the f ou " plaintiff than that every foot of the estate has been cov- ered by these purchases ? And unless I let him in upon these estates, the plaintiff has no possibility of be- ing paid." » In Ware v. Gardiner (i) the generality of the gift Ware t. was considered a badge of fraud. In that case the set- Gardner - tlor was in trade, and by a post-nuptial settlement con- veyed to trustees on trusts for his wife and children all his property, as well present as future. He continued to trade, and became bankrupt five years afterwards. Lord Justice James, then Sir W. M. James, V.C., said the question was whether by this deed he could have had any other intent than to delay and hinder his cred- itors ? and held that he did execute it with that intent, and that it was within the very words of the statute 13 Eliz. c. 5 (*). (/) See In re Pearson, 3 Ch. D. 807. (<7) 19 Ch. D. 588. (A) L. E. 14 Eq. 106 ; post, pp. 520, 521. The same is the law in America, and Upper Canada : see ante, p. 53. (i) L. E. 7 Eq. 317. (k) See also Henderson v. Lloyd, 3 F. & F. 7 ; and so by the civil law : see Dig. lib. 42, tit. 8, par. 17, sec. 1. (5153) 68 VOLUNTARY CONVEYANCES. 2. Continu- ance in pos- sesion. Indeed, where a man about to contract debts denudes himself of all his property by a voluntary gift, the in- ference of a fraudulent intention is irresistible (Z),for a [ * 67] man has a no right by a mere *act of bounty to put himself in such a position that he cannot meet the just demands on him (m). The case of Stileman v. Ashdown (n) may be consid- ered an authority for supposing that, even where the property conveyed is real estate, the donor's continu- ance in possession is a mark of fraud against subse- quent creditors. It was there said that if the father had taken an estate for life with remainder to the son in fee it would clearly be bad against the creditors. Subsequent decision has not upheld this as a general proposition, but it would be difficult to support even against subsequent creditors, a voluntary deed retained by a settlor who also kept possession of the property till his death (o). If the retainer of possession will sometimes make a conveyance for value void (p), a for- tiori will it tend to vitiate a voluntary alienation : for a deed not fraudulent in itself at its execution may-be- come so afterwards by being made use of in a manner prejudicial to the rights of creditors, and the settlor's retaining possession of the settled property has been held to have this effeet (g). But this does not militate against the leading princi- ple above adverted to (r), that under the statute 13 Eliz. c. 5, the fraud, if at all, must be taken to have (l) See Freeman v. Pope, L. E. 5 Ch. 538, 541, 545 ; In reBidler, 22 Ch. D. 80 ; supra, p. 47. (m) Cornish v. Clark, L. E. 14 Eq. 184 ; Ex parte Bolland, L. E. 17 Eq. 115 ; ante, pp. 38, 51. (n) 2 Atk. 481. (o) See Ward v. Lant, Prec. Ch. 182 ; Loeffes v. Lewen, Prec. Ch. 370 ; Drakeford v. Wilks, 3 Atk. 539-40 ; Boughtov, v. Bough- ton, 1 Atk. 625. For then the property settled is, at the settlor's death, assets in his executor's hands ; see post, p. 69 ; and see Bates v. Graves, 2 Ves. Jun. 292, where Lord Loughborough said, "There is, as to third parties, no change of ownership without possession." A debt on a voluntary bond, covenant, or promis- sory note is always postponed to creditors for value, at the death of the obligor, covenantor, or promisor ; see Watson v. Parker, 6 Beav. 283 ; Fletcher v. Fletcher, 4 Hare, 67 ; Blount v. Doughty, 3 Atk. 481 ; Goldicult v. Townsend, 28 Beav. 445 ; Lomas v. Wriaht, 2 My. & K. 769. See post, p. 398. (p) See post, pp. 113 et seq. (q) Stone v. Grubham, 2 Bulstrode, 225 ; Hungerford v. Earle, 2 Vern. 261; Bussell v. Hammond, 1 Atk. 13, 16 : Stileman v. Ash- down, 2 Atk. 481. (r) Ante, pp. 15, 35. (5154) AND SUBSEQUENT CREDITORS. 69 existed in the settlor's mind at the time he made the settlement ; for he is presumed to have had in view a subsequent fraudulent use of the deed when he exe- cuted it (s). "Where the contrivance or fraudulent intention ap- Where fraud- pears there is *no need to shew that there were [ * 68] ulent intent, creditors existing at the time ; it is enough if any cred- indebtedness itor, whether existing before or after the transaction, is deed j mma . or may be defeated (t). So, in In re Pearson (u), a terial. man not then a trader, and owing no debts at the time, j« re Pearson. made a voluntary settlement of £1000 in 1858. The trusts of the settlement were a life estate to the settlor determinable on his bankruptcy, then a life estate to his wife for her separate use, then trusts for their children, with the ultimate remainder to the settlor. Fifteen years after, in 1873, he engaged in trade for the first time, and in 1875 became a bankrupt. It was held by Sir J. Bacon, V.C., that the settlement was plainly i fraudulent upon the face of it, because it was an at- tempt to deal with his property so as to put it out of the reach of possible creditors. This decision seems to proceed on the ground • that the settlement was in real- ity a sham, by reserving to the settlor the first life estate, determinable on bankruptcy. For, if the trusts had been solely or primarily for the benefit of his wife and children, inasmuch as it was not proved that the settlor then contemplated going into trade fifteen years after, the settlement, it is conceived, would have been held valid (v). A conveyance which is void against creditors within Fraudulent the statute is, when set aside, void only as against all conveyance the creditors of the settlor. It was said by Sir William ^ n ° s " y M Grant, M.E., in Curtis v. Price (w): "A settlement of creditors, this kind (that is, a voluntary settlement) is void only as against creditors ; but only to the extent in which it may be necessary to deal with the estate for their sat- isfaction, it is as if it had never been made. To every (s) See Freeman v. Pope, L. E. 5 Ch. 538 ; Crossley v. Elworthy, L. E. 12 Eq. 158 ; Mackay v. Douglas, L. E. 14 Eq. 106 ; Ex parte Russell, 19 Ch. D. 588. (t) Graham v. Furber, 14 C. B. 410. (u) 3 Ch. D. 807 : and as to the Scotch law, see Learmouth v. Miller, L. E. 2 H. L. Sc. 438. (v) See Mackay v. Douglas, L. E. 14 Eq. at p. 121 ; In re Cross, 19 W. E. 153. (w) 12 Ves. 103, 106 ; Smith v. Cherrill, L. E. 4 Eq. 390 ; Tan- queray v. Bowles, L. E. 14 Eq. at p. 157. (5155) 70 VOLUNTARY CONVEYANCES Same in America. other purpose it is good. Satisfy the creditors, and the settlement stands." So it was said by Lord Cran- worth, L.C., in French v. French (y): "In my opinion, if at any time hereafter the assets of the testator should be realized and found more than sufficient to meet all his liabilities, this Court would find the means of restor- ing the settlement and giving Mrs. French the benefit intended to be conferred upon her." It is believed that this point has never been expressly decided (y). [ * 69 ] * The same principle, that a voluntary con- veyance is good except as against creditors, and, when, void against them, only disturbed so far as is necessary in order to satisfy their claims, obtains in America (z). The property So where a man makes a gift of goods which is frauds so alienated u i en t an d. void against his creditors, and dies, he is con- alienator'sT s idered to have died in full possession with respect to creditors af- the claim of the creditors, and the goods are just as ter his death, much assets in the hands of his personal representa- tive, as to creditors, but as to creditors only (a), as if no attempt to alienate them had been made (b). Thus, where A., being indebted to B., made C. his executor, and died ; and C, the executor, promised B., on good consideration, that if he could discover any goods par- cel of the testator's estate at the time of his death, he should have his debts satisfied thereout ; and the question was, whether a lease for years conveyed to a stranger by the testator in his lifetime fraudulently, should, in law, be parcel of his estate at the time of his death or not, it was by the whole Court resolved to be parcel of the testator's estate at the time of his death, for the estate was void against creditors (c). So that the rule applies equally where the property consists of chattels real. And as such a transfer is void at law the property becomes, at the death of the transferor, legal — and not (y) 6 De G. M. & G. at p. 103. (z) Story, Eq. Jur. 12th ed. ss. 371, 381 : Bump. Fr. Conv. (Amer.), 2nd ed. 315, 481, 482. (a) Curtis v. Price, 12 Ves. 89 ; French v. French, 6 De G. M & G. 95 ; Cornish v. Clark, L. R. 14 Eq. 184. (b) Shears v. Sogers, 3 B. & Ad. 362 ; O'Connor v. Bernard, 2 Jo. Ir. Rep. 654, 694, et seq. ; and so as to conveyances void un- der 16 Ed. 4, c. 9 ; see Cary's Rep. 25 ; Vin. Abr. tit. Fraud (F.), pi. 2. (c) Anonymous Case, 2 Roll. Rep. 173 ; Kitchin v. Dixson Gouldsb. 116, pi. 12. ' (5156) AND SUBSEQUENT CREDITORS. Tl merely equitable — assets for creditors ; for, the deed being treated as respects the creditors as if it had never existed, the property conies to the executor virtute of- ficii (d). As any intermeddling with a testator's effects makes And fraudu- the person so doing an executor de son tort (e), and as 1 t ^* n ;ranteo i goods fraudulently alienated by a testator in his life- ^J^ f s 08 ~ time remain part of his estate at his death, possession executor de taken by the fraudulent grantee will make him executor son tort, de son tort (/) ; and he will be liable to be sued as * such if not the rightful executor, and a hus- [ * 70 ] band may in this way become executor de son tort of his wife, who, being sole, has made a covinous gift of goods (fir). But the fraudulent alienation is good against the rightful executor or administrator, for he is not a cred- itor, nor does he represent creditors, and therefore it is no devastavit for him to deliver the goods to the fraud- ulent grantee, who can be sued for them by creditors, but not by any other person (h). It must* be observed that all these are cases where Does this ap- the donor has, consistently or inconsistently (i) with ply where the deed, remained in actual possession of the property the posses- until his death. And it is apprehended the principle ^I^JJ?? would not apply where the donor had in his lifetime changed? made an absolute immediate gift, followed by change of possession, so as to put the property out of his own power (fc). It is a circumstance inducing strong suspicion of Marks of fraud for a man to make a voluntary settlement, know- fraud— ing at the time that he will shortly become indebted (I). (d) Shee v. French, 3 Drew. 716. (e) Padget v. Priest. 2 T. E. 97, 100. (/) 2 Bac. Abr. 605 ; Hawes v. Leader, Cro. Jac. 271 ; Edwards v. Harhen, 2 T. R. 587 ; Shears v. Rogers, 3 B. & Ad. 362 ; Rob. Fraud. Conv. 593 ; Shee v. French, 3 Drew. 716. (g) Wilcocks v. Watson, 1 Cro. Eliz. 405. (h) Bawes v. Leader, Cro. Jac. 271 ; Orlabar v. Harwar, Comb. 348 : Vin.. Abr. tit. Fraud (C), pi. 12, p. 518. (i) See O'Connor v. Bernard, 2 Jo. Ir. Rep. 654, where there was a conveyance to a daughter in fee ; the land was taken un- der a sequestration, and the daughter set up no claim to it until her father's death. , (k) See also on this point Walts v. Thomas, 2 P. Wms. 364. (I) Walker, v. Burrows, 1 Atk. 93, 94 : Richardson v. Small- wood, Jac. 552 ; Ware v. Gardner, L. R. 7 Eq. 317 ; and see In re Ridler, 22 Ch. D. 74. (5157) 72 VOLUNTARY CONVEYANCES 3. Voluntary Thus a voluntary conveyance pendente lite, or by a conveyance person against whom an action for damageB, &c , or pendente wr j(; j n Chancery (m) is pending, and which he must ' have known would probably go against him, is always open to the imputation of fraud (n), though at the time of the settlement he was not in debt. So where a man knows that a decision is about to be pronounced against him, and thereupon settles all his property, this comes within the exact words of the statute (o). This, however, does not necessarily apply if the pre- [ * 71 ] ceding * action for damages is of a very spec- ulative character, so that the probability of substantial damages is very slight (p). Where a man made misrepresentations shortly before executing a voluntary settlement for which he was after- wards made liable in damages, it was held that the mis- representations related back, so as to prove him to have been then indebted; and tbat it was at least a circum- stance of suspicion, even if not enough to invalidate it ( 2 ). To avoid The word "forfeitures" in the statute extends to every forfeiture for kj n( j f forfeiture to the sovereign or a subject (r), and e ony. ^ ^ ag f re q Uen t2y been held that if a man alien his lands with intent to commit a forfeiture, and afterwards com- mits a felony, the lands shall be forfeited as if there had been no alienation (s), and if the alienation is volun- tary and the felony follows immediately, a fraudulent intention will be presumed (t)\ and where the aliena- tion is voluntary, and no possession is given under it, and there appears to be a trust for the benefit of the donor, it will be void against a subsequent forfeiture, though not happening immediately afterwards (w). A (m) Self v. Madox, 1 Vern. 459 ; Partridge v. Gopp, 2 Amb. 596 ; but see Ex parte Mercer, 17 Q. B. D. 290 ; post, pp. 74, 521. (n) Anonymous Case, Dyer, 294, b ; Rob. Fraud. Conv. 575 ; King v. Marissal, 3 Atk. 192. (o) Barling v. Bisliopp, 29 Beav. 417 ; Beese Biver Silver Mining Co. v. Alwell, L. E. 7 Eq. 347. fp) Ex parte Mercer, 17 Q. B. D. 290. (q) Croslcy v. Elworihy, L. E. 12 Eq. 168, 169; but see Ex parte, Mercer 17 Q. B. D., per Grantham, J.. 296, 297. (r) Pauneefoot v. Blunt, 3 Eep. 82 a; post, p. 169. (s) Eoll. Abr. 34. (t) Vin. Abr. tit. Fraud (A.) 1; Jones v. AsMrt, Skin. 357. ■ (u) Sir W. Baleigh's Case, cited in Bex v. Nottingham, Lane 48. (5158) AND SUBSEQUENT CREDITORS. 73 conveyance on the eve of conviction must be supported by proof of consideration (u); but where a clerk who had robbed his employers, a banking company, of a large sum of money, before conviction, deposited title-deeds of real estate as security as far as they would extend for the money taken, it was held, after he had been sued to conviction by the company, that the money taken was a debt due from a felon to the company, and a good con- sideration for the securities given to the company by him; and consequently, as the deposit was not a volun- tary gift by him, it was good against the Grown (w). And where a mortgage was made with the intention on the part of the *mortgagor of defeating a [ * 72 ] verdict for damages, it was held that the plaintiff could only redeem the mortgage (x). It is conceived that, since forfeiture for felony has been abolished (y), a conveyance which previously would have been held void against the Crown will now be held void against the administrator appointed by the Crown. Though a conveyance for valuable consideration is not Voluntary void merely because it is made with the intention of conveyance defeating a particular execution (z), yet even by the cution'void 6 " common law a voluntary alienation made with that ob- ject was void (a), and of course is so, under the statute, both at law and in equity (b). In Spencer v. Slater (c) an insolvent debtor assigned Spencer v. all his property to trustees upon trust to carry on the Stater. business or realize it and to pay his creditors on certain (v) Shaw v. Bean, 1 Stark. 319. See also Lentlial's Case, 2 Vera. 44; Turvilv. Tipper, Latch. 222; Jones v. Winwood, 10 Sim. 150; Bex v. Bridger, 1 M. & W. 145; Leonard v. Bacon, Cro. Eliz. 234; Moorewood and Wilkes, 6 C. & P. 144 ; Saunders v. Wharton, 1 N. B. 256; Perkins v. Bradley, 1 Hare, 219; Manning v. Gill, L. E. 13 Eq. 485. !w) Chawne v. Baylis, 31 Beav. 351 . x) King v. Marissal, 3 Atk. 192. y) 33 & 34 Vict. c. 23. z) Alton v. Harrison, L. E. 4 Ch. 622; Wood v. Dixie, 7 Q. B. 892, post, pp. 99, 100 et seq. ; Ex parte Games, 12 Ch. D. 314. (a) Dyer, 295 a. (b) Bott v. Smith, 21 Beav. 511; Blenkinsopp v. Blenkinsopp, 12 Beav. 568, S. C, 1 De G. M. & G. 495; Barling v. Bishopp, 29 Beav. 417; Reese River Silver Mining Co. v. Aiwell, L. E. 7Eq. 347; Sale v. Metropolitan, &c. Co., 4 Drew.. 492; post, p. 99. (c) 4 Q. B. D. 13; hut see Boldero v. London and Westminster Discount Co., 5 Ex. D. 47; Ex parte Chaplin, 26 Ch. D. 319; post, __ pp. 97, 98. (5159) 74 VOLUNTARY CONVEYANCES Or to defeat sequestra- tion. conditions specified in the deed. The debtor executed the deed for the purpose of defeating an apprehended execution, and also for the purposes specified in the deed. It was held that the assignment was void be- cause the purposes specified in the deed, including the power to the trustees to carry on the business, tended to delay creditors, and also because the deed contained a resulting trust in favour of the debtor. And it is the same with respect to conveyances to de- feat sequestration: if made on good and valuable con- sideration they are valid (d), but a mere voluntary set- tlement or conveyance for the purpose of defeating an expected sequestration is clearly void (e) ; so that where a husband, pending proceedings against him in the Ec- clesiastical Court for a divorce, executed a voluntary set- tlement of real and personal estate for the purpose of [ * 73 ] defeating *any process in the nature of execu- tion, and sequestration afterwards issued against him, the deed was held void as against the wife (/) ; and the mere fact of value being paid will not necessarily make it good against the sequestrator (g), and a grossly inade- quate consideration is of no use (h). Or to defeat A voluntary conveyance by a person who knows that a debt shortly k e w j]j s hortlv become indebted, comes under the same category. Of this nature was the case of Spirett v. Willows (i), as explained by Lord Hatherley in Free- man v. Pope, (k), where he said that in Spirett v. Willows the settlor being solvent at the time, but hav- ing contracted a considerable debt which would fall due in the course of a few weeks„made a voluntary settle- ment by which he withdrew a large portion of his property for the payment of debts, after which he col- lected the rest of the assets and (apparently in the most reckless and profligate manner) spent them, thus depriving the expectant creditor of the means of being paid. In that case there was clear and plain evidence of an actual intention to defeat creditors. But it is to fall due. (d) Coulston v. Gardiner, 3 Sw. 279, n. ; A lion v. Harrison, L. E- 4 Ch. 622. (e) Wilham v. Bland, 3 Sw. 276. n. ; Coulston v. Gardiner, 3 Sw. 279, n. ; 0' Connor v. Bernard, 2 Jo. Ir. 654. (/) Blenkinsopp v. BlenJcinsopp, 12 Beav. 568, S. C. 1 De G. M. & G. 495; post, p. 526. (g) Empringham v. Short, 3 Hare, 461. (h) Strong v. Strong, 18 Beav. 408. (i) 3 D. J. & S. 293. (&) L. E. 9 Eq. 206, S. C. L. E. 5 Ch. 538, 541. (5160) AND .SUBSEQUENT CREDITORS. 75 established by the authorities that if a person owing debts makes a settlement which subtracts from the property which is the proper fund for the payment of those debts an amount without which the debts cannot be paid, then, since it is the necessary consequence of the settlement (supposing it effectual) that some cred- itors must remain unpaid, it would be the duty of the judge to direct the jury that they must infer the intent of the settlor to have been to defeat or delay his cred- itors, and that the case is within the statute (I). So a voluntary settlement by a person then under a Or to defeat large contingent liability as guarantee for a debt, which, contingent as a reasonable man, he should expect would probably la 1 1 y ' be enforced, and to meet which liability he had left sub- stantially no available assets out of settlement, is with- in the- statute (m). The question, what fraud avoids a voluntary deed as Fraud against * subsequent creditors, was much dis- [ * 74 ] against/« . Crofton, 3 J. & Lat. 443, Lord St. Leon- ards said, "I do not admit that a man may not enter into a con- tract with a relation and give him better terms than he could to a mere stranger": vide post p. 246; and see In re Johnson, 20 Ch. D. at p. 397, S. C. 51 L. J. (N.S.) Ch. 503, supra, pp. 82, 83. (a) In re, Johnson, 20 Ch. I). 389, S. C. 51 L. J. (N.S.) Ch. 503; Re parte Eyre, 44 L. T. (N.S.) 922. (5168) AS AGAINST CREDITOfiS. 83 loan or payment, become * a purchaser, not for [ * 82 ] his own benefit, but for the purpose of inducing the settlor to settle the property on his own family (a). In Holmes v. Penney (b), C. J. P., who was largely Holmes v. indebted, was entitled to a life interest in a trust fund. Penney. His brother agreed to pay all debts not charged on the life interest, on condition that such life interest should be settled so as to be applicable to the maintenance of C. J. P., his wife and children, or any of them, at the absolute discretion of the trustees. This arrange- ment was effected. The amount of the debts turned out to be larger than at first confessed ; but the brother paid or satisfied all the debts of which C. J. P. in- formed him, and, as far as he could discover at the time, all that were owing,- and thereupon the settlement was executed. It turned out afterwards that a debt was due to the plaintiff of which the brother knew nothing ; but it was held that the settlement was valid against the plaintiff 's demand. Now in this case the conduct of the settlor was not altogether free from maia fides, and the plaintiff was clearly hindered and delayed in the recovery of his debt by the settlement ; but it having been established that the brother was really a purchaser, by paying the debts, of the settle- ment, and that he did not know anything of the plain- tiff 's debt, and therefore had "no manner of notice or knowledge of the covin," but had, on the contrary, done all he could to find out the whole amount of debts, the case was at once brought within the provis 3 and the deed held valid. So a purchase of a son's reversionary interests by his Family father for value to enable the son to pay his debts, and arrangement, in good faith, and a resettlement of those reversionary interests by the father upon the son, wife, and children, were upheld against a creditor whose debt had been unprovided for at the time of the execution of the deed, because the father was a purchaser for value in good faith, and had a right to prescribe the terms he chose (c). In In re Johnson (d), Judith Johnson by deed of i nrr Johnson. (a) Nunn v. Wilsmore, 8 T. R. 521 ; Thompson v. Webster, 4 Drew. 628 ; Holmes v. Penney, 3 K. & J. 90 ; Bayspoole v. Collins, L. R. 6 Ch. 228. (6) Ubi supra. (c) Ex pane Eyre, 44 L. T. (N.S.) 922. (d) 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503. (5169) I 84 CONVEYANCES FOE VALUE gift granted a farm and crops (being all her property) __ * 83 ] in trust for her daughters, * in consideration of which they covenanted to pay all debts incurred by her up to the date of the deed in connection with the working and management of the said farm and to maintain her. The plaintiff was a creditor of Judith Johnson, at the date of this deed, in respect of a debt of £120 not incurred by her, but which she had taken • over by giving a promissory note for the amount of it. It was said by Lord Justice Fry (then Mr. Justice Fry ) : "It is clear that the consideration for the deed was in part meritorious and in part valuable. . . . Now it is important to inquire what was the indebtedness of Mrs. Johnson when she executed the deed. She appears to" have had some current debts, mostly, if not entirely, in respect of the farming business. ... It appears by the evidence that Mrs. Johnson was a person of good repute among her friends as a respectable and honest woman, who paid her way and was in no difficulty. . . . The circumstances, looked at independently of the result of the deed, therefore lead me to the conclu- sion that the intention of the parties was to make a perfectly honest family arrangement, under which the daughters were to undertake the burden of paying their mother's debts, and, in consideration of that, to take immediately that farm which, in all probability, they would otherwise have received by will upon their mother's death. ... It appears plain that though valuable and good consideration was given by the daughters, that consideration cannot have been the full value of the estate. But it also appears to me to be plain that when a bona fide and honest instrument is executed for which valuable consideration is given, and the instrument is One between relatives, the Court can- not say that the difference between the real value of the estate and the consideration given is a badge of fraud, and if it is not a badge of fraud, or evidence of an intention to defeat creditors, it has no relation to the case." Ex post facto It seems that it is by an extension of the protection considera- f t n is se ction to a purchaser from a volunteer that an ex post facto consideration is allowed to make valid a conveyance which at its creation was liable to be upset by creditors or purchasers (e). So a voluntary bond [ * 84] assigned for value becomes good against *cred- (e) Doe v. Martyr, 1B.&P. (N. R.) 332, et infra, pp. 315 et seq. (5170) AS AGAINST CKEDITORS. 85 itors in the hands of the assignee, in the absence of fraud (/). But, for a deed to be within this proviso, its words and intention must be fully satisfied, and, as laid down in an old case (g), the words "good consideration" in "Good con- the statute are to be taken to mean "valuable consider- sideratioti" ation." To come within the proviso of the 6th section, ""jans valu- a conveyance must be both for valuable consideration ^aeration and also bona, fide, " by which it appears that as a gift made on a good consideration, if it be not also bona fide, is not within the proviso, so a gift made bona fide, Bo ° a n (g) Twyne's Case, 3 Eep. 80 b ; Corletl v. Radcliffe, 14 Moo. P. C. 121, 135 ; Middleton v. Pollock, 2 Ch. D. 108 ; In re Johnson 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503. (h) Ante, pp. 76, 77 ; post, p. 245, (i) Doe v. Boutledge, Cowp. 705 ; Mathews' v. Feaver, 1 Cox, 280; Strong v. Strong, 18 Beav. 408 ; Bayspoole v. Collins, L. E. 6 Ch. 228. (k) Post, pp. 243 et seq. (I) In re Johnson, 51 L. J. (N.S.) Ch., per Baggallay, L. J., at p. 504. (m) In re Johnson, 20 Ch. D., per Fry, J., 393. (5171) 86 CONVEYANCES FOB VALUE and actual and express intent must be proved. Mala fides of both parties supersedes any consider- ation. Cadogan v. Kennctt. intent to defeat or delay or defraud creditors in the parties to the deed (m) . Thus, it would not be enough [ * 85] to avoid a deed for value if it could be *shewn that the result of such a deed had been to delay or ex- clude creditors (n). So the mere fact of a bona tide creditor being defeated is not of itself sufficient to set aside a deed founded on valuable consideration (o). Again, the mere fact of creditors being left out, or not provided for, or the mere fact of other creditors being provided for, is not sufficient to shew what has been called an express intent to defraud creditors (p). So a payment is bona fide within the statute, although the payer was then insolvent to his own knowledge, and even though the creditors who accepted the money knew that (q). A fraudulent intention, to which the purchaser was a party, will override all inquiry into the consideration (r). Thus, in Cadogan v. Kennett (s), Lord Mansfield, speaking of the statute 13 Eliz. c. 5, say : " The statute does not militate against any transaction bona fide and where there is no imagination of fraud ; and so is the common law. But if the transaction be not bona fide, the circumstance of its being done for a valuable con- sideration will not alone take it out of the statute. I have known several cases where persons have given a fair and full price for goods, and where the possession was actually changed; yet, being done for the purpose of defeating creditors, the transaction has been held fraudulent, and therefore void. One case was where there had been a decree in the Court of Chancery and a sequestration. A person, with knowledge of the decree, bought the house and goods belonging to the defend- ant, and gave a full price for them (t). The Court (m) In re Johnson, 20 Ch. D., per Fry, J., 393. (n) Freeman v. Pope, L. E. 5 Ch. at p. 544 ; In re Johnson, 20 Ch. D. at pp. 393, 394. (o) Holmes v. Penny, 3 K. & J. 90 ; In re Johnson, 20 Ch. "D. at p. 397. (p) Middleton v. Pollock, 2 Ch. D. 102 ; Ex parte Games, 12 Ch. D. 314 ; In re Johnson, 51 L. J. (N.S.) Ch., per Jessel, M. R., 504. (q) Middleton v. Pollock, 2 Ch. D. at p. 108. (r) See Bott v. Smith, 21 Beav. 511, 517 ; Acraman v. Corbett, 1 J. &Hem. 410, 422-3; Ex parte Chaplin, 26 Ch. D. 319; post, p. 97. (s) Cowp. 434. (t) The fraud here seems to have consisted in converting prop- erty liable to sequestration into property not so liable, after the decree ; see supra, pt. ii. ch. i. (5172) AS AGAINST CREDITORS. 87 said the purchase, being with a manifest view to defeat the creditor, was fraudulent, and therefore, notwith- standing a valuable consideration, void. So, if a man knows of a judgment and execution, and with a view to defeat it purchases the debtor's goods, it is void, be- cause the purpose is * iniquitous. It is assist- [ * 86] ing one man to cheat another, which the law will never allow." Ticyne's Case (u), decided only ten years after the Twyne's Case. passing of the statute, has always been regarded as a leading authority on this point ; there Pierce was in- debted to Twyne in £400 and to Chamberlain in £200. Chamberlain brought an action of debt against Pierce, and he, pending the writ, secretly made a general gift of all his property whatsoever (which was worth about £300) to Twyne in satisfaction of his debt of £400. Pierce, however, still continued in possession of the gopds ; selling some of them; and exercising other acts of ownership over them, as if, in fact, no gift of them had been made. Chamberlain obtained judgment in his action, and took out a fi. fa., the execution qf which was resisted by Twyne, claiming under the gift to him ; and upon this case the Lord Keeper, the Chief Justice, and the whole Court of the Star Chamber held that the gift was fraudulent within the statute, and that although there was apparently a perfectly good and valuable consideration for the gift (it being made in satisfaction of a debt exceeding the value of the prop- erty given), yet there were such marks of fraud and mala fides as to avoid it notwithstanding. At the pres- ent time there are more ways than one by which such a gift could be avoided, but the case was decided on the statute 13 Eliz c. 5. alone. The benefit of the section is moreover strictly con- Proviso only fined to the purchaser and the interests created in his extends to favour ; so that even where there is a bona fide pur- purchaser chaser the consideration received for property sold by a ciaj^fng 01115 debtor is now (v) liable to the same rules as the prop- under him. erty would have been if unsold (w). In French v. French (x) a man made over his business, stock in- to) 3 Rep. 80 b. . Iv) Since the passing of 1 & 2 Vict. c. 110 ; see ante, p. 22. (w) Christ's Hospital v. Budgin, 2 Vern. 683 ; Goldsmith v. Rus- sell, 5 De G. M. & G. 547 ; French v. French, 6 De G. M. & G. 95; Neale v. Day, 28 L. J. (N.S) Ch. 45 : In re Johnson, 20 Ch. D. 397, S. C. 51 L. J. (N.S.) Ch. 503. (a;) 6 De G. M. & G. 95. (5173) 88 CONVEYANCES FOR VALUE Purchase- ^ade, and fixtures, in consideration of a sum of money money may paid down and an annuity (one-sixth of the net profits pot be taken j ^ ne business), to be paid to himself during the joint defeat^redit- li yes °^ himself and the purchaser, and afterwards a ors. smaller annuity to his wife, during the joint lives of her and the pnrchaser, in case she survived him, with [ * 87] power to *himself to dispose of his wife's an- nuity ; and it appeared that the annuities were granted for the name and goodwill of the business and were to be collaterally secured by policies of assurance. On the vendor's death the wife's annuity was impeached by his creditors. Lord Chancellor Cranworth said that the annuity to the widow clearly formed a portion of the consideration which the vendor, instead of keeping himself for the benefit of his creditors, chose to keep for the benefit of his wife ; such a transaction was fraudulent against creditors, and was an attempt to ab- stract from them what they were entitled to look to for payment of their debts. The sale was valid, but the consideration which was paid must be taken to have been voluntarily settled by the debtor on his wife. "I consider," said his Lordship, " that annuity so payable to the widow just in the same light as if it were taken and applied to his own purposes and abstracted from his creditors, and, in my opinion, it amounts to a vol untary settlement in favour of his wife." This was approved and followed under very similar circumstances by Lord Hatherley (then Vice-Chancellor Sir W. P. Wood) in Neale v. Day (y). Considera- This principle is applicable to every case in which, tion given so though full consideration is given, it is given in such a as to deiraud wav as to defeat the creditors (z) ; for in considering questions as to the good faith of a sale impeached by creditors it is material to investigate the amount of property withdrawn from the reach of creditors in pro- portion to their demands, and the value and tangibility of that substituted in its place (a), for it may be given in such a form as to defeat creditors (o), as in an old case, where a man invested money in mortgages and bonds taken in the joint names of himself and his wife, M28L. J. (N.S.)Ch. 45. (z) Stiloman v. Ashclown, 2 Atk. 477, as explained in Bott v. Smith, 21 Beav. 511, 517. (a) Dewey v. Bayntun, 6 East, 257. (b) Christ's Hospital v. Budgin, 2 Vern. 683; Stileman v. Ash- down, 2 Atk. 477; Bott v. Smith, 21 Beav. 511, 517; and see Ca- dogan v. Kennett, Cowp. 434, et supra. (5174) AS AGAINST CREDITORS. S9 and she, after his death, was held a joint purchaser; but Lord Harcourt " admitted, in case of creditors, it might be fraudulent" (c). In Spencer v. Slater (d) an insolvent debtor assigned Spencer v. all his * property to trustees upon trust to [* 88] Slaler - carry on his business, or to get in and realize his prop- Assignment erty, as his trustees deemed expedient, and to appor- p a y Cre( iitors tion the residue of the proceeds, after payment of ex- penses, according to an equal pound rate among his creditors. The deed provided that its execution or as- sent thereto by any creditor should operate as a full release to the debtor in respect of any debt of such creditor, and that a dividend should only be payable to a creditor who executed or assented to the deed; or that if, in a given time, a creditor did not execute or assent, his dividend should be paid by the trustees to the debtor. The deed also contained a covenant by the executing or assenting creditors to indemnify the trus- tees against any personal loss or risk they might sus- tain, except from their own wilful negligence or de- fault, by reason of their proceedings under the deed. It was admitted that the deed was executed by a trader then insolvent for the purpose of defeating any execu- tion, including one then apprehended and for the pur- poses stated in the deed. It was held that the deed was void under the statute, because its effect was to de feat and delay creditors, and also because it contained a resulting trust in favour of the debtor, in respect of sums due to creditors who refused to execute or assent to the deed. The trust to carry on the business, irre- spective of the wishes of the creditors, also subjected them to delay and risk of losses, and clearly tended to . defeat and delay them. But in Boldero v. The London and Westminster Loan Boldero v. and Discount Company (e), debtors, in trade and then London and insolvent, by deed assigned to trustees all their estate Loan and and effects on trust to sell the same and to divide the Discount residue of the proceeds, after paying expenses, rateably Company. among the creditors parties to the deed, and, if the trus- tees thought fit, also to creditors who refused or neg- lected to execute the deed, or to the debtors. The deed also empowered the trustees to carry on the trade (c) Christ's Sospital v. Budgin, 2 Vera. 683; and see Christy v. Courtenay, 13 Beav. 96. (d) 4 Q. B. D. 13. (e) 5 Ex. D. 47; Green v. Brand, Times Eep. (1884), 79. (5175) 90 CONVEYANCES FOR VALUE. E thought expedient, and to pay maintenance to the debtors, and contained a -covenant by the executing creditors to indemnify the debtors and the trustees in respect of certain bills of exchange and promissory notes; and the creditors further released the debtors from all debts, actions, &c, which they, the, creditors, [* 89] might have up to the date of the deed. *It ■was held that this deed was not void under the statute. The statute did not touch the question of equal distri- bution of assets. The assignment, therefore, though it preferred certain creditors and tended to defeat the others, might be good. This case was distinguished from Spencer v. Slater (/) because the primary object of this deed was a trans- fer for purposes of sale as a going concern, and not for the purpose of carrying on the business; the resulting trust in that case went far beyond the ordinary result ing trust in such a deed; and also the indemnity. In Spencer v. Slater (/) the ground of the decision seems really to be that the assignment was not for the benefit of the creditors, but for that of the debtor. Fraudulent The intention to defeat the rights of creditors, when intention properly established, is sufficient to supersede any con- over-rides sideration. So even the consideration of marriage, consid a em- ble though the highest known to our law, will not support tion- a transaction . without bona fides (g); and if the Court finds that the sacred nature of that consideration has f been profaned, and that the ceremony of marriage has marriage. been resorted to as a mere pretence and cloak for a fraud, and finds clear evidence that it is a fraudulent mar riage, it will be set aside on the ground of the insol • vency or embarrassed circumstances of the husband, or as fraudulent against his creditors, on a subsequent bank- ruptcy (h). Marriage Thus, in Colombine v. Penhall (i), a solicitor and settlements money scrivener married a woman with whom he had set aside. cohabited for seven years previously, and by a deed of (f) 4 Q. B. D. 13. ' (g) Cadogan v. Kennett, Cowp. 432; Campion v. Cotton, 17 Ves. 263; Hardeyy. Gh-een, 12Beav. 182; Fraser v. Thompson. 4 De G-. & J. 659, 662; post, p. 332. (h) Per Sir J. Stuart, in Fraser v. Thompson, 1 Giff. 65. That a marriage may be fraud on the bankruptcy laws, see Higin- botham v. Holme, 19 Ves. 88; and an act of bankruptcy, Ex parte Mayor, Mont. 292. (0 1 Sm. & Giff. 228. (5176) MARRIAGE SETTLEMENTS. 91 settlement and articles of assignment, executed prior to Colombine v. the marriage, conveyed the whole of his property real PenhaJl. and personal to trustees, upon certain trusts for his wife, with a joint power of appointment among the children of the marriage (including an illegitimate child), but reserving no interest to himself. Immediately after the marriage the power was exercised in favour of the ille- gitimate *child. The property remained under [ * 90 ] the control of the husband, and within two months after the marriage a fiat in bankruptcy was issued against him. The wife filed a bill in Chancery to estab- lish the settlement; but Sir John Stuart held that the settlement was itself an act of bankruptcy, and void against the assignees. He laid down the principle that "where there is eyidence of an intent to defeat and de- lay creditors, and to make the celebration of a marriage M aTr i age a part of a scheme to protect property against the rights itself part of of creditors, the consideration of marriage cannot sup- the fraud, port such a settlement." In Bulmer v. Hunter (k) the settlor had lived with Buhner v. his housekeeper as man and wife for a long period prior Hunter. to their marriage in 1867. The plaintiff was a creditor of the settlor in 1847, and on the interest falling into arrears in 1 862, after vain efforts to obtain payment, gave notice of trial on February 12, 1867. The solicitor of the settlor also acted for the housekeeper, and prepared a settlement of all the settlor's property which was exe- cuted on February 1 5, 1867. The marriage took place on February 18, 1867. It appeared from the evidence that there was no contemplation of a marriage till after the notice of trial was served upon the settlor, and that the housekeeper was implicated in the matter and knew all about the transaction before her marriage. Sir R. Malins, Y. C, said: "It is clearly established now that marriage cannot be made the means of committing fraud, though it is necessary to shew that it was connected with fraud to make a settlement invalid against the wife There was throughout these proceedings but one object, which was to commit a fraud, and on the principle of Colombine v. Penhall (I) and the other cases on which that decision is founded, the settlement cannot be sup- ported. A marriage got up for the purpose of defraud- ing a man's creditors, where the intended, wife is a party , to the fraud, will not be supported." k) L. R. 8 Eq. 46, 49. 1 Sm. & Giff. 228. (5177) 92 MARRIAGE SETTLEMENTS Ante-nupt But the mere fact of the intending husband, or of the settlements intending wife if the marriage is after December 31, good unless J8Q2 ( m ) ; being deeply indebted will not make an ante- iteelffraudu- [ * 91 ] nuptial settlement void against *creditors, pro- lent, vided the marriage is entered into honestly and in good faith (n). If marriage be honest question is can settle- ment be avoided without in- jury to inno- oent party? "When the marriage itself is honest, the question must be, not whether the settlement is a fraud on the creditors, but whether it can be set aside without de- frauding the wife, or, if the marriage is after Decem- ber 31, 1882, the party to it who is innocent of the fraud (o). A settlement made in consideration of mar- riage cannot be set aside by creditors of the husband, or of the wife if the marriage is after December 3J, 1882 (p), unless it be clearly proved that both the in- tending husband and wife were parties to the fraud (q). It is not enough to avoid such a settlement that the in- tending husband alone committed the fraud (q) ; nor, if the marriage is after December 31, 1882, that the in- tending wife alone r committed the fraud. So even where there are strong circumstances shewing fraud against the creditors, such as a false recital that the property was the wife's a settlement entered into in consideration of marriage will be supported (r). In Kevan v. Crawford (s), a settlement in contempla- Kevan v. tion of marriage was made by a settlor, then utterly in- Crawford. solvent, which contained a false recital that the in- tended wife was a creditor of the settlor's for £20,000. The intended wife executed the settlement without being actually aware of the falsity of the statement, or that there was any such statement at all. She believed the settlor to have been then wealthy. Sir G. Jessel, M. R., said : " Whether that recital were in or out of the settlement, the covenant to settle the £20,000 in (m) 45 & 46 Vict. c. 75, as. 1 (1), 2, 19, 25. (») Buhner v. Hunter, L. R. 8 Eq. 46, 49; Kevan v. Crawford, 6 Ch. D. 29; Parnell v. Stedman, 1 C. & E. 153. (o) Frazer v. Thompson, 1 Giff. 49-62 ; for the innocent party is a purchaser, and if not a party or privy to the fraud, is within the proviso of the 6th section (ante, p. 78). [p) 45 & 46 Vict. c. 75, ss. 1 (1), 2, 19, 25 ; and see Griffith, Married Women's Property Act, 5th ed. 129. (q) Ante. p. 78. This is also the law in America : see Bump. Fr. Conv. 2nd ed. 290, 291, 294 ; and in Upper Canada ; Mulhol- land v. Williamson, 12 Chy. 91, S. C. 14 Chy. 291. M Campion v. Cotton, 17 Ves. 263. (s) 6 Ch. D. 29, 39 ; Parnell v. Stedman, 1 C. & E. 153. (5178) WHEN VOID AGAINST CREDITORS. 93 f consideration of the marriage would have been a cove- nant for value, and would have prevailed against cred- itors. Why should the mere fact of the insertion of an inaccurate recital, or untrue recital, vitiate the settle- ment, as regards the icife, who ivas ignorant and inno- cent of the fraud ? I * cannot see why, and I [ * 92 ] entirely concur with the Vice Chancellor, that the set- tlement was for value given by the wife — namely, the consideration of marriage ; and that she was no party to the fraud, and that it is unimpeachable on the part of the creditors." In Hardey v. Green (t) Lord Langdale, M. E., up- Ante-nuptial held a mutual covenant by husband and wife on their contract to marriage to settle all after- acquired property (u) on acauired do such trusts as the wife should appoint, and, in default pertyupheld. of appointment, on certain trusts for the husband, wife, and children, although at the time of the covenant the husband was insolvent, and neither he nor the wife had any property. So where (v) a man fraudulently obtained adminis- tration to an intestate's estate, and settled on his marriage the property thus acquired, being in debt at the time, an injunction was granted restraining the trustees from dealing with the capital of the property, but not interfering with their application of the income to the trusts of the settlement (w). (t) 12 Beav. 182, but see Ex parte Holland, L. E. 17 Eq. 115, where the covenant -was by the husband alone. («) See 46 & 47 Vict. c. 52, s. 47. Iv) Gibson v. Head, 17 W. R. 986. (u>) See also Richardson v. Sorton, 7 Beav. 112 ; post, pp. 165, 166. 12 STAT. OP ELIZ. (5179) [ * 93 ] * CHAPTER V. BADGES OF FRAUD IN CONVEYANCES FOR VALUE. Difficulty of Those who undertake to impeach for mala fides a deed upsetting a which has been executed for valuable consideration have de ? d °? a task of great difficulty to discharge (a;). The fact sideration 0n tnat tnere is valuable consideration shews at once that there may be purposes in the transaction other than the defeating or delaying of creditors, and renders the case, therefore, of those who contest the deed more diffi- cult (y). No certain rules can be laid down as to what is an honest transaction or the opposite ; and though it was at one time attempted to lay down rules that particular things are indelible badges of fraud, this cannot be so, for every case must stand on its own footing ; and the Court or the jury (z) must consider whether, having regard to all the circumstances, the transaction was a fair one, and intended to pass the property for a good and valuable consideration (a). Actual fraud It is a question of actual and express fraud, and, as must be actual fraud is always a question of fact more than of proved. ] aWj n j a impossible to lay down any definite and exact rules as to what is or what is not fraud (b). To do so would be to give to persons fraudulently inclined the power of evading the jurisdiction of the Courts by fresh contrivances which might be invented to elude any invariable, inflexible rule (c). Fraud, in its legal Noinvanable sense, has been defined as " an act unwarranted in law, what^sfraud [ * 94 ] to the prejudice of a * third person, and not (x) Per Sir G. J. Turner, V.C., in Harman v. Richards, 10 Hare, 81, 89 ; and see Wakefield v. Gibbon, 1 Giff. 401. (y)'In re Johnson, 20 Ch. D. per Fry, J., 393. (z) In re Johnson, 20 Ch. D. 389, S.'C. 51 L. J. (N.S.) Ch. 503; and see post, p. 119. (a) Per Sir R. T. Kindersley, V.C., in Hale v. Metropolitan, &c, Co., 4 Drew. 492 ; In re Johnson, 20 Ch. D. per Fry, J., 394. But see per Sir G. Bramwell, B., in Harris v. Rickett, 4 H. & N. 5. (6) Holmes v. Panney, 3 K. & J. 90 ; In re Johnson, 20 Ch. D., per Fry, J., 393, 394, and supra, p. 82. (c) See Parkes' History of Court of Chancery, p. 508. (5180) GENERAIJTY OF GIFT. 95 that crafty villainy or grossness of deceit to which it is applied in common language" (d) : and there are certain circumstances which have always been looked But certain upon as " badges " of fraud ; that is, their presence circumstan- will, unless satisfactorily explained, be evidence of bad £ ei ^ re .. faith, while, on the other hand, their absence will not f r ' au j '" necessarily rebut the existence of fraud. The first mark of a fraudulent intention within the Badges of statute, mentioned in Twyne's Case (e), is the gener- fraud in con- ality of the gift ; it included all his posessions and left ^[™. ces for nothing whatever for the payment of his debts. j GeneraVU of gift. It has long been clearly settled that a conveyance by Act f bank- a trader, and since the Bankruptcy Act, 1861, by a non- ruptey. trader also (/), of his whole property, or what is sub- Conveyance stantially the ichole of his property, to trustees for his of whole creditors generally was an act of bankruptcy (/), and, P™perty to when so declared, void. creditors. The reason of this was twofold. Such a conveyance was regarded as a declaration or admission of insol- vency by the debtor, and it was an attempt by him to defeat the great principle of all bankruptcy law — namely, the equal distribution of the debtor's assets among his creditors. Under the Bankruptcy Act, 1869 (g), a conveyance or assignment in England or elsewhere of the whole of a debtor's property (whether a trader or non-trader) to a trustee or trustees for the benefit of his creditors generally was an act of bankruptcy, and, when so de- clared, void. By the Bankruptcy Act, 1883 (h), this has been re- enacted. The decisions, therefore, on the Act of 1869 will apply to cases under the Act of 1883. An assignment by a debtor of his whole property, or (d) Barman v. Fisher, Lofft, 472, 476. (e) 3 Eep. 81 a ; ante, p. 86. ( f) Worsley v. Demattos, 1 Burr. 467 ; Lindon v. Sharp, 6 Man. & Gr. 895 ; Stewart v. Moody, 1 C. M. & E. 777 ; Dutton v. Mor- rison, 17 Ves. 193 ; Smith v. Cannon, 2 E. B. 35 ; Robson, Bkcy. 5th ed. 154 et seq. ; Yate Lee & Wace, Bkcy, 2nd ed. 23 et seq. (g) 32 & 33 Vict. c. 71, s. 6 (1). (A) 46 & 47 Vict. c. 52, s. 4 (1) A. (5181) 96 BADGES OF FRAUD: Assignment of whole property to secure past debt. of the whole with a merely colourable exception, to a creditor as a security or in satisfaction or payment of [ * 95 ] a past debt only, even if * by a mortgage, has long been held to be fraudulent under the bankruptcy law and an act of bankruptcy, and, when so declared, void, ' whatever the motives of the parties may have been, because it prevented the other creditors from issuing execution (i). This rule now applies to non- traders as well as traders. Assignment of all pro- perty for past debt and further advance. The ground of this is that the necessary effect of such an assignment must be to prevent the debtor (if a trader) carrying on his trade, and, whether a trader or non- trader, to defeat and delay his creditors. The debtor in this class of cases receives no present equivalent for such conveyance (k). So an assignment by a trader of all his property by way of indemnity for which he receives no equivalent from which benefit may accrue to his general creditors has long been held an act of bankruptcy (I). If such assignment is partly as security for a past debt, and partly as security for a substantial present (m) or future (n) advance or some other fair equiva- lent, it is not necessarily an act of bankruptcy; and tbe intent of the parties muBt be proved in order to avoid the deed. The question in determing this point is, not whether the advance is great or small, but whether there is a bona fide intention of carrying on the business. To shew this, the amount of the advance, or the value of the equivalent, is strong evidence to prove whether the parties really meant to enable the debtor to carry on his (i) Smith v. Cannon, 2 E. & B. 35 ; Ex parte Foxley, L. R. 3 Ch. 515 ; In re Wood, L. R. 7 Oh. 303 ; Ex parte Ellis, 2 Ch. D. per Mellish, L.J., 798; Ex parte Field, 13 Ch. D. 106 n. ; and see cases cited in Twyne's Case, 1 Sm. L. C. 8th ed. pp. 12 et seq. (k) Tomkins v. Saffrey, 3 App. Cas. 213; Ex parte Chaplin, 26 Ch. D. 319; see Robson, Bkcy. 5th ed. 156 et seq. (?) Worsley v. Dcmatlos, 1 Burr. 407; Leake v. Young, 5 E. & B. 955. (m) Ex parte King, 2 Ch. T>. 256; Ex parte Ellis, 2 Ch. D., per Mellish, L.J., 798; Ex parte Greener, 46 L. J. (N.S.) Bkcy. 70; Ex parte Hanxwell, 23 Ch. D. 626. (n) Ex parte Dann, 17 Ch. D.27; Ex parte Wilkinson, 22 Ch. D. 788; Ex parte Fisher, L. R. 7 Ch., per Mellish, L.J., 642, and cases there cited; and see Robson, Bkcy. 5th ed. 161 et seq. (5182) GENERALITY OF GIFT. 97 business, or to meet his engagements, or merely meant to secure past advances (o). But a sale by a trader of all his property at a fair price to a * bom\ fide purchaser is not an act of [* 96] bankruptcy, for the debtor merely changes the charac ■ ter of his property (q). So an assignment by a trader of all his effects simply Assignment to secure an advance is not of itself an act of bank- f all proper- ruptcy (?*) ; nor if to pay off an existing charge or debt ty for if made to carry out an absolute (s) agreement bona advance fide entered into at the time of the loan. Whether the assignment of the whole of the debtor's property is merely to secure a past debt only, or partly to secure such debt and also a present advance, or wholly to secure a present advance, the assignment is not an act of bankruptcy in the following two cases (t): — 1. If there is a substantial (it) exception out of the assignment of the debtor's property, such an exception as might possibly enable him to carry on his trade with advantage. 2. If the debtor really has the advantage of the pres- ent advance, which in this case is regarded as if it were a substantial- exception out of his whole property, and is really a present equivalent to the debtor (v). The act of bankruptcy is complete upon the execution (o) Ex parte Foxley, L. E. 3 Ch. 515; Ex parte Fisher, L. E. 7 Ch. 636; Ex parte Burton, 13 Ch. D. 102; Ex parte Chaplin, 26 Ch. D. 319. (q) Baxter v. Pritehard, 1 A. & E. 406; Ex parte Slubbins, 17 Ch. D. 58; and see Eobson, Bkcy. 5th ed. 157 et seq. (r) Re Colemere, L. E. 1 Ch. 128; Mercer v. Peterson. L. E. 2 Ex. 304, S. C. 3 Ex. 104; and see Lomax v. Buxton, L. E. 6 C. P. 107; Harrison v. Cohen, 32 L. T. (N.S.) 719. (s) Eat parte Fisher, L. E. 7 Ch. 636; Ex parte Izard, L. E. 9 Ch. 271; Ex parte King, 2 Ch. D. 256; Ex parte Hauxwell, 23 Ch. D. 626. See Yate Lee & Wace, Bkcy. 2nd ed. 33 et seq. (t) Lomax v. Buxton, L. E. 6C. P. perWilles, J., 112. (u) See Hale v. Allnut. 18 C. B. 515; Ex parte Foxley, L. E. 3 Ch. 515; Ex parte King, 2 Ch. D. 256; Ex parte BuHon, 13 Ch. D. 102; Ex parte Field. 13 Ch. D. 106 n.; Ex parte Dann, 17 Ch. D. 26. See Yate Lee & "Wace, Bkcy. 2nd ed. 26 et seq. (u) In re Colemere, L. E. 1 Ch.. per Cranworth, L.C., 132; Mer- er v. Peterson, L. E. 3 Ex., per Coekburn, C.J., 106; Lomax v. Buxton, L. E. G C. P., per Willes, J., 112; and see Yate Lee & Wace, Bkcy. 2nd ed. 27 et seq. (5183) 98 BADGES OF FRAUD : of the deed by the debtor (to). But, of course, the act relied upon as an act of bankruptcy must have occurred within the period allowed by the Act for taking pro- ceedings in bankruptcy (as). Assignment But the statute 13 Eliz. c. 5 had no such object (y). of whole The meaning of the statute is that the debtor must not P ro Perty not j-* 97 j retain a benent * f or himself (z). Whether the countneces- deed deals wi * tbe wnole or onl y a P art of tne grantor's sarilyfraudu- property^ under this statute immaterial. The essen- lent under 13 tial thing is that the deed must be bona fide. Eliz. c. 5. ° Ex parte In Ex parte Games (a) the grantor executed a bill Games. f ea i e \yj wa y f mortgage of all his then existing and after-acquired property to secure an existing debt and future advances. The deed was barred by time from being available as an act of bankruptcy. It was there said by Thesiger, L. J. : " The only remaining point is whether the deed, not being available as an act of bankruptcy for any purpose, is void under the statute » of Elizabeth. We may, I think, put aside for this pur- pose the fact that it is an assignment of the whole of the grantor's property, present and future. For, in Alton v. Harrison (b), Lord Justice Giffard said : 'I have no hesitation in saying that it makes no difference in regard to the statute of Elizabeth whether the deed deals with the whole or only a part of the grantor's property. If the deed is bona fide — that is, if it is not a mere cloak for retaining a benefit to the grantor — it is a good deed under the statute of Elizabeth.' Apply- ing these remarks to the present case, and taking the question to be, what it plainly must be, was the deed bona fide or was it a mere cloak for retaining a benefit to the grantor, what are the facts ? Undoubtedly there was good consideration given for the deed ; though it was not good under the bankruptcy law, it was per- fectly good under the statute of Elizabeth. The con- sideration was a pre-existing debt and further advances, which together appear to amount to nearly the value of the property. I can see nothing in the deed itself, or (w) Ponrford v. Walton, L. E. 3 C. P. 167. (a;) 32 & 33 Vict. c. 71, t>. 6; 46 & 47 Vict. c. 52, s. 6 (1) C. (y) Alton v. Harrison, L. R. 4 Ch., per Giffard, L.J., 622, 625; post, p. 97. (z) Middleton v. Pollock, 2 Ch. D., per Jessel, M. R., at pp. 108, 109; ante, pp. 11, 12. ( 1869 - " Every conveyance or transfer of property, or charge thereon made, every payment made, every obligation in- curred, and every judicial proceeding taken or suffered, by any person unable to pay his debts as they become due from his own moneys, in favour of any creditor, or any person in trust for any creditor, with a view of giv- ing such creditor a preference over the other creditors, shall, if the person making, taking, paying or suffering the same become *bankrupt within three months [* 102 ] after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee of the bankrupt appointed under this Act; but this section shall not affect the rights of a purchaser, payee, or incumbrancer in good faith and for valuable consideration" (h). The Bankruptcy Act, 1883 (i), practically re-enacts Bankruptcy this section of the Act of 1869, except only in the pro- Act ' 1883 - tecting clause, which is as follows: — "This section shall not affect the rights of any person making title in good faith and for valuable consideration, through or under a creditor of .the bankrupt." Under the Act of 1883 a fraudulant preference is de- clared an act of bankruptcy (k), which it was not under the Act of 1869 (I). The cases decided under the Bankruptcy Act, 1869 (g), are therefore authorities on the corresponding section of the Act of 1883, except with regard to the proviso in that section. (/) Gibson v. Boutts, 4 M. & G. 169; see Eobson Bkcy. 5th ed. 167, 172, 173. (g) Section 92. (h) The proviso extends to a case of the consideration being the payment of a pre-existing debt : Ex parte Norton, L. R. 6 Eq. 397; Tompkins v. Saffery, 3 App. Cas. 213. (t) Section 48. (k) Section 4 (1) C. (?) Ex parte Stubbing. 17 Ch. D. 58. (5189) 104 FRAUDULENT. "What is a fraudulent preference under Act 1883. What is giving a creditor a preference. The Act of 1869 considerably altered the old law of fraudulent preference, leaving only the old law as to what was pressure as it stood (n)\ and the decisions before the Act of 1869 must be regarded only as guides, and not as substituting a standard for that laid down in that Act (o). The conditions which must now coexist for an act to be a fraudulent preference (subject, of course, to the proviso in favour of persons claiming through or under a creditor of the debtor) under the Act of 1883 are the three following: — 1. The act must be done by a person unable to pay his debts as they become due from his own moneys (p). 2. The act must be done with the view of giving the particular creditor a preference over the other cred- itors (q). [ * 103 ] * 3. "Within three months of the date of the act a petition in bankruptcy must have been presented which ultimately results in the debtor's bankruptcy (r). The words " with a view of giving such creditor a preference over the other creditors " practically seem to mean the same thing as the word "voluntary" in the technical sense which it had under the old law (s). The act under the old law was done " voluntarily " only if it was not done under the influence of pressure from the creditor (t). There is no really definite test to decide what is or what is not sufficient pressure to prevent the act being a fraudulent preference. The principle, said James, L.J. (u), is that, in order to con- stitute a fraudulent preference, the act must be the spontaneous act of the debtor not bona fide originating in a demand or some other step of the creditor. (n) Butcher v. Stead, L. R. 7 H. L., per Cairns, L. C, 846; but see Ex parte Tempest,!,. R. 6 Ch. 70; Ex parte Topham, L. R. 8Ch. 614. (o) Ex parte Griffith, 23 Ch. D. 69; Ex parte Hill, 23 Ch. D. 695. (p) See ante, p. 101. (q) See post, p. 103. (r) Re Liverpool and London Guarantee Co., 30 W. R. 378. (s) Ex parte BoJland, L. R. 7 Ch. per Mellish, L.J., 27. (t) Robson, Bkcy. 5th ed. 168 et seq., 175 ; Yate Lee & Wace, Bkcy. 2d ed. 423 et seq. Smith v. Pilgrim, 2 Ch. D. 127. (u) Ex parte Tempest, L. R. 6 Ch. at 74 ; and see Yate Lee & Wace, Bkcy, 2nd ed. 425 et seq. (5190) PREFERENCE. 105 And even if the pressure be sufficient, it must also be bona fide on the part of the creditor. There must be no conclusion between the creditor who is being preferred and the debtor (v). The desire to prefer or favour a particular creditor must be the substantial dominant motive or view ope- rating on the mind of the debtor, but it need not be the sole motive or view (w). The doctrine of fraudulent preference is not con- To -what oases fined to cases of payments made or securities given for doctrine ap- past debts ; it appplies to any transaction amounting p les ' to a disposition of property which places one creditor in a better position to recover his debt than, other cred- itors (x). But the relationship between the parties to the trans- t, u t only as action * must, in the strict sense of the [ * 104 ] between words, be that of debtor and creditor (y). debtor and creditor. But the statute ]3 Eliz. c. 5, had no such object (z). But not It has no regard whatever to the question of prefer- under 13 ence or priority among the creditors of the debtor (a). Eliz. c. 5. Under that statute a man may pay one bona fide cred- itor in preference to, and for the express purpose of defeating executions or other processes by, his other creditors (b) ; and even if such a voluntary payment comprised the whole property of the debtor it would not necessarily be held fraudulent (a). But, of course, where a man's creditors have all Secus as to agreed to accept a composition, a secret preference in preference favour of one of them to induce him to sign the deed J 6 ™/,]. t to which all the creditors are parties is a fraud on the (v) Ex parte Reader, L. R. 20 Eq. 763 ; Ex parte Hall, 19 Ch. D. 580. (w) Ex parte Gh-iffith, 23 Ch. D. 69 ; Ex parte Hill, 23 Ch. D. 695 ; Ex parte Lancaster, 25 Ch. D. 311 ; but see Ex parte Black- burn L. R. 12 Ex. 358 ; Ex parte Topkam, L. R. 8 Ch. 614. (x) Ex parte Pearson, L- R- 8 Ch. 667; Robson, Bkcy. 5th ed. 171, 177. (y) Edwards v. Glyn, 2 E. E. 29 ; Ex parte Kelley, 11 Ch. D. 306 ; Ex parte StubUns, 17 Ch. D. 58. (z) See ante, p. 96. (a) Middleton v. Pollock, 2 Ch. D. 104; Ex parte Games, 12 Ch. r>. 314. (b) Alton v. Harrison, L. R. 4 Ch. 622; Ex parte Games, 12 Ch. D. 314. (5191) 106 BADGES OF FRAUD. ors all must share alike. ither creditors, both at law (c) and in equity (d) ; in such a case there is actual fraud, and not merely a technical fraud, in breaking in upon the rateable distri- bution of a bankrupt's property. In any So where there is a bankruptcy or an arrangement with arrangement creditors by composition or insolvency, when insolvency "'"' :: "" !i; - exists as contradistinguished from bankruptcy, it is the duty of all creditors who have once taken part in the proceedings of bankruptcy or composition to stand to share and share alike. Any arrangement, therefore, entered into by one creditor, unknown to the general body, by which he gets for himslf from the debtor, or from any one on behalf of the debtor, any collateral advantage whatever, is a fraud upon the general body of creditors. This is a general principle of the com- mon law which applies to all such deeds (e). General [*105] *One of the most remarkable eases of a debtor assignment being allowed to defeat the execution of some creditors in for creditors favour of all, is where a debtor voluntarily assigns over to defeat par- kj s property for the benefit of his creditors, and such execution assignment is valid, though made for the express pur- valid, pose of defeating a particular creditor (/), and that quite independently of any statute enabling a debtor to enter into arrangements "with his creditors (g). Pickstock v. Pickstock v. Lyster (h) may be taken as an illnstra- Lyster. tion of this doctrine. There an insolvent debtor, being sued by a creditor, pending the suit and before execu- (e) Leicester v. Rose, 4 East, 372; CocksJwr v. Bennett, 2 T. E. 863; Jackson v. Lomas, 4 T. E. 166; Smith v. Cuff, 6 Mau. & S. 160; Alsager v. Spalding, 4 Bing. N. C. 407; Wilson v. Bay, 10 A. & E. 82; Bradshaw v. Bradshaw, 9 M. & W. 29; Horton v. Riley, 11 M. & W. 492; Higgins v. Pitt, 4 Ex. 312; Smith v. Salzmann, 9 Ex. 535. (d) Chesterfield v. Janssen, 2 Ves. 156; 31iddletonv. Lord Onslow, 1 P. Wms. 768; Fawcett v. Gee, 3 Anstr. 910; Spurret v. Spiller, 1 Atk. 105; Consiantine v. Blache, 1 Cox, 287; Cullingworth v. Loyd, 2 Beav. 385; In re Cross, 4 De G. & Sm. 364. (e) Jackman v. Marshall, 13 Ves. 581; Stare v. Sanford, 1 Giff, 288; Hall v. Dyson, 17 Q. B. 785; Douglish v. Tennnent, L. E. 2 Q. B. 49; UPKewan v. Sanderson, L. E. 20 Eq. 65; Ex parte Mil- ner, 15 Q. B. D. 605. (/) Darvill v. Terry, 6 H. & N. 811. (g) See Bankruptcy Acts, 1861 (24 & 25 Vict. c. 134), ss. 192 et seq.; 1869 (32 & 33 Vict. c. 71), ss. 125, 126; and 1883 (46 & 47 Vict. c. 52), ss. 18, 19. (7i) 3 Mau. & S. 371. See also the older case of Stephenson v. Hayward, Prec. Ch. 310. (5192) IN CONVEYANCE FOR VALUE. 107 tion, executed an assignment of all his effects to trus- tees for the benefit of all his creditors, undor which possession was immediately taken. It was held by Lord Ellenborough and the Court of King's Bench that the assignment, though made with the intention of de- feating execution under the pending suit, was not fraud- ulent against the suing creditor. If the conveyance in this case was not good it would break in upon the validity of all judgments confessed by executors or by the party himself, where that has been done to give a preference to some particular creditor. No doubt, the first motive in many of those cases, as well as in thi,«, was to defeat the particular creditor; but it is no injury to him, it being for the benefit of all the creditors to procure an equal distribution amongst all of the fund to which all have an equal right against one who has gained the first step upon them; when no purpose of fraud is proved, such a transaction is to be referred to an act of duty rather than of fraud; it arises out of a moral duty attached to the character of debtor to make the fund available for the whole body of creditors (i); this was not a deed by which the party stipulated for a benefit to himself, but all his property was fairly to be distributed amongst his creditors, including this par- ticular creditor; and to hold such a deed fraudulent would be contrary not only to Holbird v. Anderson (k), * but to all cases which have decided that a [* 106] party, independently of the Bankrupt Statutes, may con- vey away his property for the benefit of all his creditors. The case of Holbird v. Anderson(k) was even stronger. Holbird v. There Charter, being indebted to Shepherd and Hoi- Andermh bird, and being sued to judgment by Shepherd, went to Holbird and voluntarily gave him a warrant of attorney on which judgment was immediately entered, and exe- cution levied on the same day on which Shepherd would judgment have been entitled to execution and had threatened to confessed by sue it out. Lord Kenyon said there was no fraud in j* judgment the case. Holbird was preferred by his debtor, not e r ' with a view of any benefit to the latter, but merely to secure the payment of a just debt to the former, in which there was no illegality or injustice. This war- (i) But see now the Bankruptcy Act, 1869, s. 6 (1), by which "conveyances or assignments" for the benefit of the debtor's creditors generally are acts of bankruptcy; re-enacted by the Bankruptcy Act, 1883, s. 4 (1) A. (Jfc) 5 T. R. 235. (5193) 108 BADGES OF FRAUD. rant of attorney was given on good consideration and bona fide, and the rale concerning creditors of unequal degrees does not apply inter vivos. So now a debtor in insolvent circumstances may, unless the transaction amount to a fraudulent preference within the meaning of the bankruptcy law, prefer one of his creditors to an- other (m). General con- The principle of Pickstock v. Lyster (n) applies veyance to a equally, although the trustee for creditors is not him- trustee not a ge if a cre( jitor, and a provision is made for paying his expenses before the debts, and for paying the costs of compromising an action commenced against the debtor, and although, it seems, such a trust is not necessarily for the general benefit of the creditors (o). In such a case, of course, the assignment or bill of sale, being general, including all the property of the debtor, is a necessary element, and therefore no badge of fraud. Where, however, as in Holbird v. Anderson confessed for 3 )' tlie assignment, or confession of judgment, is to larger sum one creditor, and not to all of them, the fact that it than neces- covers more property than is necessary for satisfying sar y- that debt is a suspicious circumstance (q), and there [* 107J must be no doubt that * there was a bona fide debt owing (r) or consideration paid (s); but it seems that a debtor may confess judgment to accreditor for a Defeasance large nominal sum, with a defeasance that execution execution 6 stall on ly issue for such an amount as to cover the debt of that creditor and all the other creditors for the pur- pose of making a rateable distribution among them (£). Deed to But, even independently of the bankrupt laws, a tion mnsUje" ^ ee( * ma de to defeat a particular execution, or in pref- for value. ' (m) Gladstone v. Padwick, L. E. 6 Ex. 203, 209, 211; 31iddleton v. Pollock, 2 Ch. D. 108; Ex parte Games, 12 Ch. D., per James, X.J., 321. (n) 3 Man. & S. 371, et supra. (o) Bowen v. Bramidge, 6 Car. & P. 140; Boldero v. London and Westminster Loan and Discount Co., 5 Ex. D. 47; Green v. Brand, Times Eep. (1884), 79. (p) 5 T. R. 235. (a) Tolputt v. Wells, 1 M. & S. pt. 2, 395; Benton v. Thornhill, 7 Taunt. 149, 2 Mars. 427; Hodgson v. Newman, 5 T. E. 236, 239, mentioned in Holbird v. Anderson. M Goss v. Neale, 5 J. B. Moo. 19. Is) Darxnll v. Terry, 6 H. & N. 807-11. (t) Meux v. Howell, 4 East, 1. See also Siggers v. Evans, 5 E. & B. 367, explained in Johns v. James, 8 Ch. D. at p. 751. (5194) IN CONVEYANCE FOR VALUE. 109 erence of one creditor over others, must be on good and valuable consideration (u). A conveyance by a debtor for the benefit of creditors Conveyances to whom the conveyance is not communicated, and who for creditors are not in any manner privy to it, will not be good n ?* comiuu- against the other creditors; for such a deed merely thern operates as a power which is revocable by the debtor, and is merely a direction by him as to the mode in which his own property shall be applied for bis own benefit ; and the creditors generally, or the creditors named in the schedule, are merely persons named there for the purpose of showing how the trust property under the voluntary deed shall be applied for the benefit of the volunteers (v). If a creditor has executed the deed, and been a party to it, and assented to it, if he has entered into obliga- tions on the faith of it, these acts give him a right; but such right does not enure for the benefit of any other person who has not executed it, who is not a party, and who has not assented to it (to). An executor or administrator has as much power to Executors or defeat a particular execution by an assignment for the administrate general benefit of all the creditors, on the principle of ° r may assign Pickstock v. Lyster (x); as *his testator, if still [* 108] c ° r eJuors living, would have had (y); which, in fact, comes to much the same as if the executor were to renounce pro- bate in favour of an administrator chosen by the cred- itors. An executor of a debtor can also revoke the trusts of a deed as against a creditor, although a party to the deed, who never executed it, and to whom it was never communicated (z). An executor may also an ^ may give confess judgment to a particular creditor, in order to confe™]™ give him a preference (a), on the principle of Holbird judgment. (v.) Blenkinsopp v. Blenkinsopp, 12 Beav. 568, S. C. 1 De G. M. &' G. 495 ; Bolt v. Smith, 21 Beav. 511 ; Barling v. Bishop. 29 Beav. 417 ; Reese Silver Mining Co. v. Atwell, L. K. 7 Eq. 347 ; Ex parte Games, 12 Ch. D. 32.3 ; ante, p. 72. (v) Walwyn v. Cowtts, 3 Mer. 707 ; Harland v. Sinks, 15 Q. B. 713; Garrard v. Lord Lauderdale, 2 Russ. & My. 451 ; Acton v. Wogdgate, 2 My. & K. 492 ; et infra, p. 433 et seq. (w) Johns v. James, 8 Ch. D. at p. 750. (x) 3 M. & S. 371 ; and see Earl Vane v. Bigden, L. E. 5 Ch. 668. [y) Wolverhampton, &c., Banking Co. v. Marston, 7 H. & N, 148. (z) In re Sanders, 47 L. J. (N.S.) Ch. 667. (a) Williams v. Fowler, Str. 407-410 ; Lyttleton v. Cross, 3 B. & C. 322. 13 STAT. OF ELIZ. (5195) 110 BADCE6 OF FRAUD. Anderson (b), or' may give a preference to any par- ticular creditor by an assignment or mortgage to him of any part of the testator's assets in payment of, or by way of security for, his debt (d, does not of itself raise even a primd facie pre- sumption of fraud. For that possession' may properly be in one person and the legal title in another person. It is to the possession of the title deeds of real estate that creditors ought to look (x). . Where virtual and substantial possession of land is retained by retaining the title deeds, much the same rules are applicable as to sales of personalty (y). mortgage no evidence of fraud. Is transfer of personal pro- perty absolute or conditional ? Is mere fact of absolute transfer prima facie evidence of fraud ? The second leading distinction in the consideration of this question is whether the sale or gift of the per- sonal property is absolute or conditional (z). "With regard to an absolute sale or gift of personal property there has been a considerable conflict of authority as to whether the mere fact of retention, of possession by the vendor or donor .of itself afforded conclusive or merely primd facie presumptive evidence of fraud. Ryall v. Rolle (a), though a case onthe 21 Jac. 1, c. 19, was argued on the general question of possession. It was there said, in relation to the condition of cred- itors where the debtor continues in possession of the goods mortgaged, that the statute governing this mat- ter was 13 Eliz. c. 5, in which there was no distinction whether the sale be absolute or conditional, provided it was fraudulent. Courts of equity and juries were to consider, upon the whole evidence, whether the con- veyance was made with a view to defraud or not; con- veyances for value were good, "unless the circum- stances have the appearance of a design to deceive creditors; but where the goods have been left with the vendor so notoriously as that there could be no design (x) Ante, pp. 113, 114. The same is the rule in America : see Bump. Fr. Conv. (Amer.), 2nd ed. 122, 177. (y) See Doe v. Ball, 11 M. & W. 531 ; and see Perry-Herrick v Attwood, 2 De G. & J. 21 ; Clarke v. Palmer, 21 Ch. D. 124 • post p. 197. ! (z) Post, p. 122. (a) 1 Atk. 165, 167-8, S. C. Byall v. Bowles, 1 Ves. 349, 360. (5204) . A BADGE OF FRAUD. 119 to defraud, this has never been looked upon as fraudu- lent." With regard to Twyne's Case (a), it was said that " it is hard to assign a reason why a buyer should leave goods in the hands of the seller unless *to [ * 117] give him a false appearance of circumstances and credit," but that "possession can be no otherwise a badge of fraud than as it is calculated to deceive cred- itors." In Bucknal v. Roiston (b) Lord Cowper made no distinction between absolute and conditional sales, but decided on the fairness of the transaction, saying that there was no possession calculated to acquire a false credit. This shewed that a possession so calculated as to acquire a false credit would have made the transac- tion void, and that this must mean such possession as would give false credit, so that all that is laid down there is that a possession to acquire a false credit w'ould make such a transaction void, otherwise not. This doctrine was closely followed by Lord Mansfield in Worsley v. Demattos (c), who there pointed out that the not taking possession, since it was only evidence of fraud, might be explained. In some of the older cases it has been held that the Want of pos- want of possession alone is of itself a conclusive proof session con- of fraud (d), that is to say, where it is enough to shew elusive that the transfer was not a real sale or gift at all, but a f^Ki^ni v mere contrivance, whereby no property was intended to -when it ' pass, but which should be brought forward when con- proves the venient in order to protect the goods from the claims of unreality of creditors. It was chiefly on this ground that the sale the transfer - in Twyne's Case (a) was held void for there " the donor continued in possession and used the goods as his own, and traded and trafficked with others and defrauded and deceived them " (/). The old rule seemed to be that where there was an Old rule as to absolute conveyance and the grantor remained in pos- possession session in such a way as to be able to use the goods as after ^transfer (a) 3 Eep. 80 b. (6) Prec. Ch. 285. (c) 1 Burr. 467. (d) Stone v. Grubham, 2 Buls. 226. (/) Per Sir "W. Fortescue, in Taylor v. Jones, 2 Atk. 600; and see Ryall v. Bowles, 1 Ves. at p. 360; and see Ex parte Games, 12 Ch. D. 322. (5205) ence of fraud. 120 WANT OP POSSESSION But where it is attempt- ed to screen more property than neces- sary, it is question for jury- his own, it was always void against creditors, even though made on valuable consideration (g). In such a case to remain in possession was either inconsistent with the deed and therefore fraudulent, or, if in accord- [* 118] ance with the terms * of the deed, was none the more valid, for it proved, or was taken to prove, the unreality of the transfer, and that it was intended to be really for the grantor's benefit at the expense of his creditors (h). But the possession of an assignor is not fraudulent when he is tenant in common with the pur- chaser, because the possession of one tenant in common is the possession of all (i). "Want of absolute possession will make a bill of sale fraudulent if the ulterior object is to convey more prop- erty than would satisfy the debt to secure which it was given, in order to screen it from other creditors (fc); but whether or not this was the object is a question for a jury, especially where the value of the property was a fluctuating one. In all cases where there is a lease, bill of sale, or other assignment, without any change of possession, the ques- tion is, whether it was a bonEl fide transaction or a trick and contrivance; and the payment of the consideration money and other circumstances must be free from doubt (I), for any circumstances of fraud coupled with the transferor's remaining in possession will upset a trans- action (m). It by no means follows, though, that because there is (g) Bucknal v. Boiston, Prec. Ch. 287; Edwards v. Harben, 2 T. R. 587; Twyne's Case, 3 Rep. 80 b; Paget v. Perehard, 1 Esp. 205. (h) The idea that a secret benefit was intended for the grantor in contradiction of the apparent grant, is the leading principle on which these conveyances are void. The earlier statute, 3 Hen. 7, c. 4, enacted that "all deeds of gift of goods and chat- tels made or to be made of trust to the use of that person or per- sons that made the same deed of gift be void, and of none effect;" and see the fifth badge of fraud in Twyne's Case, 3 Co. 81 a; and the resolution (ibid.) that no gift shall be considered bona fide which is accompanied with any trust; and so "the want of de- livery is evidence only that the transfer was colourable " : Martin- dale v. Booth, 3 B. & Ad. 498, 505; Lindon v. Sharp, 6 Man. &G-. 895, 898. (t) Be Matthews, 1 Atk. 185. (k) Benton v. Tliornhill, 2 Mars. 427. And it will be seen that this was also the case. in Edwards v. Harben, 2 T. E. 587, post p. 119; Biddulph v. Goold, 11 W. R. 882. (I) Seed v. Blades, 5 Taunt. 212; Ex parte Games, 12 Ch. D. 314. (m) Graham v. Furber, 14 C. B. 410. (5206) A BADGE OF FRAUD. 121 no possession given therefore a transfer is fraudulent; But no pos- for those cases where the judges have said that if pos- session is not session was not given it was fraudulent (w) must be *J lwa y s taken with reference to the circumstances of each case. The question of possession is one of much import- ance, but * that is with a view to ascertain the [* 119] good or bad faith of the transaction (0). In Arundell v. Phipps (p) Lord Eldon said that the Lord Eldon: mere circumstance of the possession of chattels, how- want of pos- ever familiar it might be to say that it proves fraud, session only- amounts to no more than that it is prima facie evidence e V i,j e ' nce f of property in the man possessing, until a title not fraud, andaK fraudulent is shewn under which that possession has the cireum- followed ; that every case, from Twyne's Case (q) down- stances must wards, supports that, and there was no occasion other- e( j wise for the statute of King James (r). There is no sufficient authority for saying that the want of delivery of possession makes void a bill of sale of goods and chattels ; it is prima facie evidence of a fraudulent intention, and, if it be a badge of fraud only, in order to ascertain whether a deed be fraudu- lent or not, all the circumstances must be taken into consideration (s). Edwards v. Harben, (t) is an early case on the sub- Edwardsv. ject,-the facts of which sufficiently appear from the Harben. judgment. The Court of King's Bench held the bill of sale to the defendant fraudulent and void against the plaintiff, another creditor. Buller, J., said the bill of sale was a general bill of Absolute bill sale of all the defendant's household furniture and stock- of sale. (n) Edwards v. Harben, 2 T. R. 587; Wordall v. Smith, 1 Camp. 332; Macdona v. Swiney, 8 Ir. C. L. E. 86. (0) Abbott, C. X, in Latimer v. BaUon, 4 B. & C. 652; and see Arundell v. Phipps, 10 Ves. 139; Kidd v. JKawlinson, 2 B. & P. 59; Hoffman v. Pitt, 5 Esp. 22, 25; Eastwood v. Brown, Ey. & Mood. 312. (p) 10 Ves. 139, 145. (?) 3 Eep. 80 b ; see the remarks of Littledale, J., in Martin- dale v. Booth, 3 B. & Ad. 498, 505. (r) 21 Jac. 1, c. 19, ss. 10, 11, which originated the law with respect to property remaining in the reputed ownership or order and disposition of a bankrupt. (s) Per Patteson, J., in Martindale v. Booth, 3 B. & Ad. 498, 507 ; post, pp. 150 et seq. (0 2 T. E. 587. (5207) 122 WANT OP POSSESSION Deed void unless pos- session ac- companies and follows it. "Where there is nothing but absolute conveyance without pos- session it is fraudulent. in-trade ; it was to take effect immediately on the face of it ; but there was an agreement between "W. T. M. and the defendant that the goods should not be sold till the expiration of fourteen days from the date of its execution ; and no possession was actually taken by the defendant till after the death of W. T. M., which, hap- pened within the fourteen days. There was a formal delivery of a corkscrew in the name of the whole (u). The first question, whether the bill of sale be void or [ * 120 ] not, came before the Court in *the last term in the case of Bamford v. Baron, in which all the judges were unanimously of opinion that unless possession ac ■ companies and follows the deed it is fraudulent and void. Stress is laid on the words " accompanies and follows," because there are some cases in which, though possession was not delivered at the time, the convey- ance was not held to be fraudulent. There are many cases on the subject, from which it appears that the principle stated never admitted of any serious doubt. So long ago as the case in Bulstrode (v) the Court held that an absolute conveyance or gift of a lease for years unattended with possession, was fraudulent, but if the deed or conveyance be conditional, then the vendor's continuing in possession does not avoid it, because, by the terms of the conveyance, the vendee is not to have the possession till he has performed the condition (w); and so with bills of sale. Buller, J., then proceeded : "This has been argued by the defendant's counsel as being a case in which the want of possession is only evidence of fraud, and that it was not such a circum- stance per se as makes the transaction fraudulent in point of law ; that is the point which we have consid- ered, and we are all of opinion that if there be nothing but the absolute conveyance without the possession, that, in point of law, is fraudulent" (x). («) But the property in the goods, if at all, passed by the mere execution of the deed : Burling v. Patterson, 9 C. & P. 574. («) Stone v. Grubham, 2 Buls. 226. (w) But see Bucknal v. Roiston, Prec. Ch. 285, and Eyall v. Bolle, 1 Atk. 165, S. C. Ryall v. Bowles, 1 Ves. 348, ante, pp. 116, 117. (x) In America the doctrine of Edwavds v. Harben has been fully adopted and even exceeded in some courts and States ; see Hamilton v. Bussel, 1 Cranch (Sup. Ct. of U. S. Rep.), 309 ; Can- ard v. Atlantic Insurance Co., 1 Peters (Sup. Ct. ofU. S. Rep.), 386, 449 : Bissell v. Hopkins, 3 Co wen (Supt. Ct. of N. Y.), 166, 189 n ; United States v. Hooe, 3 Cranch (Sup. Ct. of U.S.), 73 ; Meeker v. Wilson, r Gallison (U.S. Circ. Ct.), 419; D'Wolf v. Harris, 4 Mason (U.S. Circ. Ct.), 515, 534 : Sturtevant v. Ballard, 9, Johns (N.Y. Rep.), 337, where, too, the consideration was (5208) A BADGE OF FRAUD. 123 In Haselinton v. QUI (y), decided, three years be- fore Edwards * v. Harben, (z), by Buller, J., [ * 121 ] it was laid down that "possession alone is not evidence of fraud, but that the transaction must be shewn to be fraudulent from other circumstances." It will be observed, however, that the words of Buller, J., in Edwards v. Harben (z), apply "where there are no facts whatever in the case beyond those of an absolute conveyance and a non-delivery of possession. Such a case is, from the nature of the transaction, very excep- tional. This case has given rise to much comment in subsequent cases, and, although never actually overruled, the principle laid down in it has since been modified con- siderably. There were in it, however, other circum- stances of fraud — the generality of the assignment and the fact that more property was assigned than necessary to cover the debt (a). In Martindale v. Booth (b) the doctrine laid down by Buller, J., was repudiated by the whole Court, and con tinuance in possession was treated as evidence of fraud only to be left to the jury that the transaction was colourable. It was said in that case by Parke, J. : "I think that the want of delivery of possession does not make a deed of sale of chattels absolutely void. The dictum of Buller, J., in Edwards v. Harben (z) has not been generally considered, in subsequent cases, to have that import. The want of delivery is only evidence that the transfer was colourable." In lAndon v. Sharp (c) Tindal, C. J., said : " The modern doctrine is that it must be left to the jury to say money paid at the time ; 2 N.Y. Rev. Stats. 136, ss. 5, 6, 7 ; United States v. Conyngham, 4 Dallas, (U.S.), 358, Wallace C. C. 178 ; Phettiplace v. Sayles, 4 Mason (U.S. Circ. Ct.), 312, 321 ; Kennedy v. Ross, 2 Const. (S.C.) 125 ; and Clow v. Woods, 5 Serg. & Rawle (Pennsylv.), 275. But in others a less strict rule — that want of possession is only prima facie evidence of fraud — has ob- tained. See Brooks v. Powers, 15 Mass. Eep. 244 ; Bartlett v. Williams, 1 Pick. (Mass.), 288 ; Briggs v. ParJcman, 2 Metcalf (Mass.), 258 ; Carpenter v. Snelling, 1 Browne (Mass.), 452 ; Gales v. Mowry, 15 Gray (Mass.), 564 ; Tjlmer v. Hills, 8 Greenl. (Maine), 326 ; Wash v. Medley, 1 Dana (Kentucky), 269. But see Laugh- lin v. Ferguson, 6 Dana (Kky.), 117. See Kent, 12th ed. 520 : Bump. Fr. Conv. (Amer.), 2nd ed. 64, 74 et seq., 111-114, and cases there cited . (y) 3 T. R. 620. (z) 2 T. R. 587; ante, p. 119. (a) Benton v. Thornhill, 2 Mars. 427, 7 Taunt. 149. (6) 3 B. & Ad. 498. (e) 6 M. & Gr. 898. (5209) 124 WANT OF POSSESSION Modern doc- trine posses- sion after a transfer merely a prima facie presumption of fraud. Distinction between ab- solute and eonditional transfers. Possession accompany- ing and fol- lowing the deed. whether the continuance in possession is fraudulent or not. It is a strong fact, but not conclusive." In the Irish Courts, in the case of Macdona v. Swiney (c), Lefroy, C. J., pointed out that the prin- ciple laid down in Edwards v. Harben (d) by the judges was only intended to apply to possession under the particular circumstances of that case. The more modern doctrine, then, appears to be that the mere fact of the vendor's or donor's continuance in possession of personal property after an absolute sale [ * 122 ] or gift affords only a *prima facie presump- tion of fraud. It is such a presumption, therefore, as may be explained away or rebutted; or, taken in connec- tion with all the circumstances of the case, it may amount to a conclusive presumption of fraud. In short, the question of fraud or no fraud depends upon all the special circumstances of each particular case. Although in some of the very early cases no distinc- tion has been made between absolute and conditional transfers of personal property but they have been treated as the same in principle (e), still this distinc- tion was recognized in Edwards v. Harben (/), where it was said by Buller, J., with regard to deeds or bills of sale which" are to take place at some future time, that "the possession continuing in the vendor till that future time, or till that condition is performed, is con- sistent with the deed, and such possession comes with- in the rule as accompanying and following the deed.' 1 '' This criterion, whether possession accompanies and follows the deed, is only oue means of ascertaining whether it was a bona, fide deed, intended to part with the property, or whether it was intended that the debtor should keep possession and have his goods back again, and that it was a mere pretext for keeping off cred- itors (g) ; and the question whether or not possession was given — the manner in which the parties to the deed acted with regard to it after its execution — is always important as throwing light on their original intention (h). (c) 8 Ir. C. L. 73, 84, .86. (d) 2 T. R. 587; ante, p. 119. (e) Ante, pp. 116, 117. (/) 2 T. R. 587; see notes to Twyne's Case, 1 Sm. L. C. 8th ed. (g) Riches v. Evans, 9 C. &P. 640; Marlindale v. Booth, 3 B. & Ad. 505; Eveleigh v. Purssford, 2 Mood. & Rob. 539, 542. (A) Armstrong v. Baldoek, Gow, 33; Beeves v. Capper, 5 Bing. N. C. 140; Carr v. Burdiss, 5 Tyrw. 309. (5210) A BADGE OP FRAUD. 125 In Martindale v. Booth (i), "the consideration for the bill of sale," said Lord Tenderden, C.J., "was not only an antecedent debt, but a sum of money to be ad- vanced by the plaintiffs to enable Priest to carry on his trade. The omission of the plaintiffs to take posses- sion of the goods was perfectly consistent with the deed; for it was stipulated that Priest should continue in possession until default made in payment Of all or any of the instalments The possession by Priest, therefore, being consistent *with the deed, [ * 123 ] and it having been giving in consideration of money ad- vanced to enable Priest to carry on his trade, I cannot say that it was absolutely void." So in Alton v." Harrison (k) a bill of sale by way of mortgage of substantially all the mortgagor's property for the benefit of certain creditors, with a proviso that he should retain possession for six months unless a sequestration or execution should issue against him, was held valid. The ground of this decision was that the proviso was consistent with the tenor and object of the deed, although the mortgagor knew that a writ of sequestration would be issued against him. In general, where property is mortgaged, especially if it be such as an hotel, or the plant of a manufactory, it is the object of the parties to the deed to leave the mortgagor in undisturbed possession until default in pay- ment. The source from which the mortgagee's interest is to come is frequently the earnings of the mortgagor in his business, which would be destroyed by an imme- diate change of possession (I). Indeed, the general idea of of a mortgage, even where the mortgagor does not by moans of the property mortgaged earn money, is that the property shall remain in the undisturbed possession of the mortgagor, with a right reserved to the mortgagee, in certain events, to take possession. The result of the authorities appears to establish this: Where that where, in strict pursuance of the terms of the continuance • ii.ii ■• i • .in possession, agreement or deed, actual possession is not given, such j g ; n pursu- want of possession is not per se even an evidence of ance of the fraud. deed no presumption In such a case the fraud against creditors must be (i) 3 B. & Ad. 498. (Jfc) L. E. 4 Ch. 622. (1) Steward v. Lombe, 1 B. & B. 506. 14 STAT. OF ELIZ. (5211) valid. 126 WAST OF POSSESSION looked for in the nature of the arrangement itself, and not in the way in which that arrangement is acted upon with regard to possession being taken (m). In order to take advantage of this rule the subse- quent acts must be consistent with the deed itself, and [ * 124] not with a parol *agreement between the par- ties, for that is in the nature of a secret trust and is always viewed with the greatest suspicion (n). Possession This being the reason of the rule, it follows, of course, given or not, y^ ^ e mere f ac t f tne possession, or Ihe absence of witlTthe ° 6 Jt ' when in accordance with the deed, will not set up deed will the deed if there are other circumstances from which a not of itself fraudulent intention may be collected (o); nor, on the make it other hand, is the fact that no possession has been given conclusive proof of fraud, although inconsistent with the deed (p). So a conveyance (by a debtor who remained in pos- session) absolute in form, but with a proviso that on payment on a future day the conveyance should be void and the property should revest in the grantor, was held to stand on the same footing as if such proviso had not been in the deed. The deed was held fraudu- lent because of other circumstances which afforded con- clusive evidence of fraud (q). So the mere fact that a conditional sale, fauch as a mortgage, contained no pro- viso enabling the mortgagor to retain possession, is not conclusive evidence of fraud (r). In CooA; v. Walker (s) a bill of sale by way of mort- gage of all the furniture and effects in an hotel was given by an hotel-keeper to a creditor to secure certain (m) Beeves v. Capper, 5 Eing. N. C. 140 ; Wooderman v. Bal- doch, 8 Taunt. 676 ; Carr v. Burdiss, 5 Tyrw. 309 ; Seed v. Wilmot, 5 Moo. & P. 583 ; Weaver v. Jmile, 3 C. B. (N.S.) 309 ; Maselin- ionv. Gill, 3 T. R. 620-1, per Ashurst, J.; Martindale v. Booth, 3 B. & .Ad. 498 ; Alton v. Harrison, L. R. 4 Ch. 622; Eastwood v. Brown, Ry. & M. 312. («.) See the fifth badge of fraud in Twyne's Case, 3 Co. 81 a ; Edwards v. Harlem, 2 T. E. 587 ; 3 Bac. Abr. 7th ed. 785, pi. 2, tit. Fraud (C); ante, p. 117 ; Ex parte Chaplin, 26 Ch. D. 319. (o) Riches v. Evans, 9 C. & P. 640-642 ; Cramplhorne v; , 6 • L. J. Ch. 91. (p) Eastwood v. Brown, Ry. & Mood. 312 ; Jarman v. Woolloton, 3 T. R. 620. (q) Crampthorne v. , 6 L. J. Ch. 91. (r) Steward v. Lom.be, 1 B. & B. 506. (s) 3 W. R. 357. (5212) A BADGE W FRAUD. 127 furniture and a sum of £70 advanced by her. The deed was an assignment of the whole furniture and effects on trust for sale, and, after payment of the £70 and agreed value of the furniture, the surplus was to be paid to the debtor. The assignor not being insolvent at the time, the bill of sale was held valid against creditors, although the debtor remained in possession. Lord Hatherly (then Sir W. P. Wood, V.C.) said: "The bill of sale does not contain the usual clause of possession until default, but I think that cannot, in this Court, be much relied on where it is a mortgage security" (t). * Here it will be seen the remaining in pos- [* 125 J session was not inconsistent with the deed, which was in the form of a mortgage, but necessary for the pur- poses of the business, and the consideration for it was partly an existing debt and partly the price of furni- ture then sold. And in Weaver v. Joule, (u), where likewise a bill of sale was given by way of mortgage of chattels, and the consideration for it was partly an old debt, and partly a fresh advance, it was held that the fact of the assignor retaining possession (there being no evidence of fraud) was immaterial. But in that case there was a clause for possession until default. The same principles apply to cases in which a debtor (v) or his representative (w) has given a preference to one creditor ; for, notwithstanding what was said by Lord Kenyon in Holbird v. Anderson (x), want of pos- session being given under an assignment to defeat a particular execution or sequestration (y) is not always a proof of fraud. It is a fact which requires explana- tion, and from which, if not explained, a jury may be led to infer that the instrument was not meant to operate (z). Upon this principle, that the possession is consistent with the deed, or with the object of the parties to it, an as- signment by a man to trustees of the furniture in the house in which he and his wife and family live, has been held (t) Cook v. Walker, 3 W. R. 357. (u) 3 C. B. (N.S.) 309; and see Ex parte Games 12 Ch. D. 314. (») Ex parte Games, 12 Ch. D. 314. (w) Middleton v. Pollock, 2 Ch. D. 104. (x) 5 T. E. 235; ante, pp. 99 et seq. (yj Alton r. Harrison, L. R. 4 Ch. 622. (e) Eveleigh v. Purssford, 2 Mood. & Rob. 539. (5213) 128 WANT OF POSSESSION Notoriety of transfer les- sens the presumption of fraud. hot to be within 13 Eliz. c. 5, for they can only enjoy the furniture by its being in the house in which they all live (a). So, too, if trustees for creditors are by their deed of trust authorized to permit the debtor to use any part of the trust property till the debts are collected, such possession by the debtor is not fraudulent, because it is the object of the parties as expressed in the deed (b). If trustees for creditors are authorized by the trust deed to permit the debtor to use any part of the trust [ * 126 ] property till the * debts are got in, or for any other purpose, such possession is not fraudulent, because it is consistent with the deed (c). The question of fraud or no fraud upon the ground of the want of possession is, then, in all these cases a ques- tion of fact for a judge or jury ; and each particular case must be decided upon its special circumstances (d). Notoriety of change of ownership acts as a power- ful antidote to evidence of fraud as inferred from pos- session not being given to the assignee. Change of actual possession is notice to the world that there has been a change of ownership, and it is the same whether such notice is given in that way or by notoriety (e). In either way the presumption of ownership is rebutted. In Armstrong v. Baldock, (/) a debtor assigned to trustees for the benefit of his creditors certain property and his implements and stock-in-trade, but, consist- ently with the deed, remained in possession. The ques- tion was, whether this assignment was good against a subsequent execution. Dallas, O.J., said that in all such cases as this notoriety of the change of possession is the question on which the validity or invalidity of (a) Cadogan v. Kennett, Cowp. 432; Arundell v. Phipps, 10 Ves. 139; but see Ashton v. Blackshaw, L. R. 9 Eq. 510; post, pp. 135 et seq. (6) Kidd v. Rawlinson, 2 B. & B. 59; Reed v. Blades, 5 Taunt. 212; Boldero v. London and Westminster Discount Co., 5 Ex. 1). 47. (c) Wooderman v. Baldock, 8 Taunt. 676; Goss v. Nedle '5 Mob 191; Neatev Latimer, 2 Y. & C. Ex. Ca. 257; Burling v. Paterson, 9 C. & P. 570; Fenn v. Biltleston, 7 Exch. 152: Boldero v. London and Westminster Loan and Discount Co., 5 Ex D 47 (d) Martindale v. Booth, 3 B. & Ad. 498; Riches v. Evans, 9 C. & P. 640; and see pp. 121, 122. (e) Latimer v. Batson, 4 B. & C. 652; Kidd v. Rawlinson, 2 B. & P. 59; Hoffman v. Pitt, 5 Esp. 22: Reed v. Blades, 5 Taunt 212- Maedona v. Swiney, 8 Ir. C. L. E. 73 (/) Gow. 33. (5214) A BADGE OF FRAUD. 129 the assignment depends ; and the jury finding that there was not a notoriety of change of possession, a verdict was given against the validity of the assign- ment. And in a case (g) in the following year the same judge is reported to have said that where there are two requisites, a notorious change of possession which ope- rates as notice to all the world, and a lawful consider- ation, the idea of fraud is excluded As publicity goes toward lessening the degree of fraud Secrecy. inferred from want of possession, so secrecy in the transaction * increases it. Lord Coke's ad- [ * 127 ] vice in Twyntfs Case (h), as to gifts in satisfaction of a debt made by one who is indebted to others also, is : " Let it be made in a public manner, before the neigh- bours, and not in private, for secrecy is a mark of fraud. Let the goods and chattels be appraised by good people to the very value, and take a gift in particular in satis- faction of your debt. Immediately after the gift take possession of them ; for continuance of the possession of the donor is a sign of trust" (i). It has been shewn that in all cases turning on the Possession want of possession the material question is, whether the onlv valu ~ conveyance was intended to operate as a real transfer g^ence of of the property, or whether it was merely colourable, the reality of and meant as a cloak to defraud creditors ; and that the the transfer, absence of a delivery of possession is only of use as evidence of the intention to defraud. The nature of the possession which will be required Nature of to prevent any inference of fraud must be such as will possession shew the honesty of the intention to part with the prop- ^ U t S o S h e e ^ UCh erty, and to act up to the terms of the agreement; so that honesty, a mere formal delivery, unless the transmutation of pos- Mere formal session is notorious (fc), will be of no use whatever (I), possession no , use. (g) Woodham v. Baldock, Gow. 35, in note to Armstrong v. Baldock ; but see S. C. 3 J. B. Moo. 11. (ft) 3 Co. 81 a; Lofft. 783-83; 3 Com. Dig. 297; Stone v. Grubham, 2 Buls. 225: Kidd v. Bawlimon, 2 B. & P. 61; Latimer v. Batson, 4 B. & C. 652. (t) In re Johnson, 20 Ch. D. 389, S. a 51 L. J. (N. S.) Ch. 503; Ex parte Wilson, 22 W. R. 241. Ex parte Chaplin, 26 Ch. D. 319; and see 41 & 42 Vict.'C 31, and 45 & 46 Vict. c. 43, post, pp. 150 et seq. (fc) Carr v. Burdiss, 5 Tyrw. 309, 316; and per Dallas, C. J., in Armstrong v. Baldock, Gow, 34. (I) Formal possession was given in Edwards v. Haroen, 2 T. R. 587, ante, p. 119. See also 41 & 42 Vict. c. 31, and 45 & 46 Vict. c. 43, post, p. 151. (5215) 130 REPUTED OWNERSHIP UNDER The delivery of possession and the giving up of own- ership must be such as to exclude the doctrine of re- puted ownership (m) ; it must be actual and complete. In Wordall v. Smith (n) a publican made a bill of sale of his household furniture and stock-in-trade, and a servant of the assignee was immediately put into the house, but the publican and his wife continued to carry on the trade as usual for several weeks, during which time the servant employed to keep possession, when he sold beer, put the money into the till, to which the pub- [* 128] licau * and his wife had access. Lord Ellen- borough said that to defeat the execution by a bill of sale there must appear to have been a bona fide sub- stantial change of possession. It is a mere mockery to put in another person to take possession jointly with the former owner of the goods. A concurrent posses- sion with the assignor is colourable. There must be an exclusive possession under the assignment, or it is fraudulent and void as against creditors. Lord Ken- yon also took the same view in a very similar case (o). Ex Parte I n ^ x parte Wilson (p) an unregistered bill of sale Wihon. was given by A. to B., kept secret, and not acted on. The goods were afterwards sold to C, and the proceeds of sale were paid to B. It was held that although A. was insolvent at the time he gave the bill of sale, and bankrupt shortly afterwards, the payment to B. was valid. In that case it was said by James, L. J. : "I think the principle of Tmyne's Case as to non-deliverv of possession is to be applied in much the same way as the rule in bankruptcy with respect to order and dispo- sition; which is, that the goods must remain in the or- der and disposition of the bankrupt up to the time of the bankruptcy, and when possession is given before the bankruptcy there is no ground for saying it is fraud- ulent." That doctrine merely applies the common principle that people must make good their representa- tions; they must make good that which they hold out to the world as being the fact (q). By the Bankruptcy Act, 1883 (r), the same principle (m) Carr v. Burdiss, 5 Tyrw. 309. (n) 1 Camp. 332. (o) Paget v. Perchard, 1 Esp. 205. (p) 22 W. R. 241. (a) Ex parte Hayman, 8 Ch. D., per James, L.J., at p. 23: Ex-- parte Wingfield, 10 Ch. D. 591. (r) Section 44 (3); see Eobson, Bkcy. 5th ed. 533-562; post, p. 135. (5216) BANKRUPTCY ACT. 131 is in the following terms re-enacted: — The property of Reputed the bankrupt shall comprise " all goods being at the ownership commencement of the bankruptcy in the possession, or- lm & 61 ' Bwik- der, or disposition of the bankrupt, in his trade or busi- igg3 Cy ° ' ness, by the consent and permission of the true owner, under such circumstances that he is the reputed owner thereof." By the Married "Women's Property Act, 1882 (s), it is provided that nothing in the Act shall give validity as against creditors of the husband to any gift by him to his wife of any * property which after such [* 129] gift shall continue to be in his order and disposition or in his reputed ownership. The doctrine of reputed ownership does not apply in cases where the possession is quite consistent with the real title (t). Where a husband and wife remain in joint possession of furniture settled by the husband by a post nuptial deed upon trust for his wife as her sepa- rate property and registered as a bill of sale, it will not, although post-nuptial, if for value, be void as against his creditors, because the subsequent possession is con- sistent with the deed (w). It has been held under the reputed ownership clause Reputed of the Bankruptcy Act, 1869 (v), that goods were only ownership in the possession, order, or disposition of a bankrupt in ^^j^ank- cases where the bankrupt was in the sole possession of rU pt i s i n the goods and as the sole reputed owner (w) ; and that sole posses- the Act did not extend to cases in which the bankrupt sion and ** and others were jointly in possession and were jointly o^y C n er P reputed owners. In Ex parte Watkins (x) it was said by Lord Sel- borne, L.C., that to bring a case within the clause two things were necessary. " First, that there should be what is called the order and disposition of the property; and, secondly, that there should be, in point of fact, reputed ownership, arising from the circumstances." The question of reputed ownership is a question of fact, and not of law, and is to be determined from a consid- (») Section 10. H) Ashton v. Blachshaw, L. R. 9 Eq. 515-16 (a) Ex parte Cox, 1 Ch. D. 302. (v) Section 15 (5); re-enacted "by the Act of 1883; supra. (w) Ex parte Dorman, L. R. 8 Ch. 51. (x) L. R. 8 Ch. at p. 528. (5217) 132 WHAT KIND OF POSSESSION eration of all the facts which any one who took pains to inform himself on the subject would know. Possession But, on the other hand, where the purport of the given need ,j ee( j j 8 not f itself fraudulent, and the objects of it necessary for caa be carried into effect without a thorough change of objects of possession, the possession need only be such as is'suffi- deed. cient for effecting these objects (y). The possession need not always be either absolute or exclusive; for possession taken jointly with the vendor or settlor must be judged of by the other circumstances, and it will sometimes be a question for a jury whether the posses- sion taken was sufficient. Benton v. Thornhill. [* 130] *In Benton v. Thornhill (z) a creditor sent his son B. to his debtor, and by his means obtained a bill of sale of all the debtor's effects, expressed to be in consid- eration of £600 (the amount of the debt). B. remained in the debtor's house, employed labourers to harvest and thrash out the crops, agents to sell the corn, and sup- plied the articles requisite for the maintenance of the family. On the other hand, the debtor himself paid and appealed against rates, sold a cow and corn to creditors, and wrought with the team for. them, and was credited with the value in account; and also paid bills and servants, and gave orders respecting the farming business and stock on the farm, and sowed his land with wheat, and fed the horses with oats, both thrashed out by his orders from the crops included in the bill of sale. The debtor still appeared to act as owner and master, the servants on the farm not being aware that B. had taken possession, for he gave them orders in the name of the debtor. It was left to the jury to say whether this was an honest bill of sale, and they were told that that depended on what was the object of it, and whether a bona fide possession had been given under if ; that there was an uncontroverted debt due, for which a bill of sale was given', which, if followed by possession, was certainly valid. The jury having found for the validity of the bill of sale, it was held that the verdict could not be set aside and a new trial granted on the ground that there had not been such an absolute delivery of possession as was necessary to make the bill of sale (y) Jezepli v. Ingram, 8 Taunt. 838. See, also, ante, p. 115, cases in note (t). (z) 2 Mars. 427, S. C. 7 Taunt. 149. (5218) IS NECESSARY. 133 valid within the doctrine of Twyne's Case (a) and Ed-' wards v. Harden (b). In order to reconcile this decision with the cases of Cases, how Paget v. Perchard (c) and Wordall v. Smith (gr), previ- reconciled. ously mentioned (e), it maybe noticed that here the bill of sale did not include the debtor's farm itself, of which he was lessee, so that some of his acts of ownership might be referred to that interest which he still retained, and also that here, it seems, there was a substantial change of possession, and that as between the debtor and creditor the property assigned seems to have been treated as belonging to *the creditor (/). [ * 131 ] , But in Wordall v. Smith (g), which was cited in Benton v. Thornhill (h), the money received after the alleged possession taken was put into the till, and the debtor, had access to it; and in Paget v. Perchard (i) the debtor continued to receive the money taken in her trade, and did not account for it. And it is clear that Lord Ellenborough in Wordall v. Smith did not lay down (g) a general principle ap- plicable to all this class of cases, but that he must be taken to have spoken with regard to the particular cir- cumstances of the case he had before him. This ap- T • . pears from the case of Latimer v. Batson (I), which, sion question however, was on a somewhat different question, for jury. There the goods had been actually sold by the sheriff under a fi. fa., and the purchaser, though he put a ser- vant in possession, allowed the debtor to remain in possession also, and to use the goods as if there had been no execution. Lord Tenderden (then Sir Charles Abbott, C.J.) said that the facts were very different from those in Wordall v. Smith (g), where Lord JSllenborough's observations, if construed with refer- ence to that case, did not warrant the assertion that any distinct question should have been left to the jury as to the possession of the goods. In that case an as- (a) 3 Rep. 80 b. (6) 2 T. E. 587, and ante. p. 119; and see Reed v. Blades, 5 Taunt. 212. (c) 1 Esp. 205. (e) Ante, pp. 128, 129. (/) See Carr v. Burdiss, 5 Tyrw. 309, 314. (g) 1 Camp. 332. (A) 2 Mars. 427. (t) 1 Esp. 332. (?) 4 B. & C. 652. (5219) 134 CONTINUANCE IN POSSESSION signment was made to a creditor without any execu- tion, or any notice to the world that the assignor was a failing man. The goods assigned were the furniture and stock-in-trade of a public-house, where the busi- ness continued after the assignment to be carried on in the same manner as before. Here the assignment was made under the authority of the sheriff after he had entered to execute a writ of fi. fa., and a purchaser from the assignee had suffered the debtor to continue to use them (n). Money paid a In Latimer v. Batson the consideration was money better con- p a j and ** seems tnat sucn a possession possession as is not of itself even evidence of fraud, and in the ab- tenant of the sence of proof of actual fraud will be upheld without a purchaser. j urv r z j . an( j the circumstance of the purchaser being a creditor makes no difference if the creditor takes a a regular bill of sale from the sheriff ; nor does it alter the case that the creditor so buying is also the execution creditor at whose suit the execution under which he bought was sued out, although he got that execution by means of a judgment confessed (z) Other sales the sames, if notorious. By auction. By landlord under dis- tress for rent. The same principle applies to any case in which the sale is notorious (a). In Leonard v. Baker (b) a man made an assignment of his effects to trustees for his cred- [ *134] itors and absconded, the * assignment was adver- tised in the public papers, and then the goods sold by pub- lic auction to the plaintiff, who removed some of them, but left the greater part in the house in the possession of his mother, the wife of the debtor. It was held that this assignment was valid against a subsequent execu- tion, the jury finding that the sale was notorious, and not made with an intent to defeat creditors. And so also where the sale is by the debtor's landlord under a distress for rent, which, if bon& fide, is valid against creditors, and, unless collusion is alleged, without any question for a jury (c.) z) Walking v. Birch, 4 Taunt. 823. a) Laiimer v. Balson, 4 B. & C. 652. 6) 1 Mau. & S. 251. c) Guthrie v. Wood, 1 Stark. 367. (5222) *CHAPTER VII. [*135] BILLS OF SALE ACTS, 1879 AND 1882. These were many cases of secret transfers of personal Secret trans- proper fcy which could not be impeached by creditors, fers of P er ~ either as fraudulent or as made without consideration, p roper ty. and in which, nevertheless, creditors might incur loss by placing reliance upon the fact of the debtor's appear- ing to continue in possession of the personal property after it had been secretly transferred. This defect in the law has been remedied, if the How far debtor became insolvent or bankrupt, by certain provi- prevented by sions of successive Bankruptcy Acts which are known Bankruptcy as the order and disposition clauses, or as the doctrine of reputed ownership (d), under which all "goods and chattels," under the Bankruptcy Act of 1869 (e), or all " goods," under the Act of 1883 (/), pass to the debtor's trustee in bankruptcy. But the doctrine of reputed ownership applies only under the Bankruptcy Act, 1869, if the bankrupt be a trader within the meaning of that Act (g), and under the Bankruptcy Act, 1883, only if the " goods " are in the possession, order, or disposi- tion of the bankrupt in his trade or business (h) ; so that a large number of cases are still outside the scope of these sections. In all the cases in which the debtor did not become insolvent or bankrupt, and where his continuance in possession after an assignment for value, because con- sistent with the terms of the deed, was not evidence of an intention to defraud creditors within the meaning of 13 Eliz. c. 5, the mere fact that the transfer was abso- (d) First introduced in 21 Jac. 1, c. 19, s. 11 ; before the Act of 1861, this doctrine applied to all bankrupts ; and see notes to Horn v. Baker, Sm. L. C. 8th ed. vol. 2, pp. 245 et seq. ; Eobson, Bkcy. 5th ed. 529 et seq. (e) 32 & 33 Vict. c. 71, s. 15 (5). (/) 46 & 47 Vict. c. 52, s. 44 (2) (3). \g) 32 & 33 Vict. c. 71, s. 15 (5), and schedule 1. (A) In re Wallis, 14 Q. B. D. 950 Eolls v. Miller, 27 Ch. D. 71 ; In re Jetikinson, 15 Q. B. i). 441 ; Robson, Bkcy. 5th ed. 531-533. (5223) 13S BILLS OF SALE ACTS, lutely secret did not in general of itself invalidate the deed (i). Act 1854. [ *136] *The Bills of Sale Kegistration Act, 1854 (k), was the first of several Acts passed to give greater protection to creditors against secret bills of sale, and to enable them to ascertain whether the person in apparent possession of personal property was or was not the real owner, and, as such, entitled to credit on account of that personal property. The Act was not passed to make good a title which would not have been good before, but simply for the protection of cred- itors (I). Under it bills of sale of personal chattels must have been registered within twenty-one days after their exe- cution, in order to make them valid as against assignees in bankruptcy and execution creditors {in), if the per- sonal chattels comprised in them were left in the apparent possession of the assignor (n). By the Bills of Sale Act, 1866 (o), provision was made for the re-registration of bills of sale every five years. Act 1878. By the Bills of Sale Act, 1878 (p), both these last Acts were repealed (q), except as regarded bills of sale executed before the commencement of the Act on Janu- ary 1, 1879 (r), as to which the Acts were to continue in force; and except also as to a rule of construction prescribed by the Act of 1878, in respect of fixtures and growing crops if assigned apart from the land, and as to the re -registration of such bills of sale (s). It is provided by the Bills of Sale Act, 1878 (t), that every bill of sale under it shall be duly attested, and (i) See Ex parte Sparrow, 2 De G. M. & G. 907 ; per Lord Hatherly, then Sir W. P. Wood, V.C., in Mather v. Frascr, 2 K. & J. 558-9 ; ante, pp. 124-217. (A;) 17 & 18 Vict. c. 36, which came into operation on July 10, 1854. (1) lie Daniel, Ex parte Ashly, 25 L. T. 188. (m) 17 & 18 Vict. c. 36. The corresponding Irish Act was 17 & 18 Vict. c. 55. (») Minister v. Price, 1 F. & F. 686. (o) 29 & 30 Vict. c. 96. {p) See Appendix No. III. The corresponding Act for Ire- land is 42 & 43 Vict. c. 50, and is almost identical. (j) 41 & 42 Vict. c. 31, s. 23. (r) 41 & 42 Vict. u. 31, s. 2. («) 41 & 42 Vict. c. 31, ss. 7, 23. (t) 41 & 42 Vict. c. 31, s. 8. (5224) 1878 and 1882. 139 shall be registered under that Act within seven days ' after the making or giving thereof, and shall set forth the consideration for which such bill of sale was given. If these requisites,, or any of them, are not complied with, the bill of sale is, after the expiration of the seven clear days (v), deemed fraudulent and void as against either the trustees in bankruptcy, or the assignees under assignments for the benefit of creditors, or the execution creditors, of the grantor; but in *re [ * 137] spect only of all chattels in his possession, or apparent possession, at or after the times therein specified. The Bills of Sale Act, 1878, Amendment Act, 1882 Act 1882 (iv), which came into operation on November 1, 1882, applies on/y and which, so far as is consistent with the tenor there- ^ e \y ^ay of, is to be construed as one with the Act of 1878 (x), security for and in which the expression "bill of sale" and other payment of expressions in it have the same meaning as in the Act mone y- of 1878, applies only to bills of sale given by way of security for the payment of money (y). This Act, unless the context otherwise requires it, does not apply to any bill of sale duly registered before November 1, 1882, so long as the registration thereof is not avoided by non-renewal or otherwise (y) ; nor does it apply to bills of sale executed, but not regis- tered, before that date (z) ; nor to bills of sale duly registered under the Act of 1854, but not re-regis- tered (a). The object of the Bills of Sale Act, 1882, said Brett, Object of Act M.E., is twofold : first, that the borrower should under- 1882 *° stand the nature of the security which he was about to ^orrower°and give for the debt due from him ; and secondly, that a lender, creditor, upon merely searching the register, should be able to understand the position of the borrower, and should not be compelled to go to a solicitor in order to get counsel's opinion as to the meaning of a security already created by the borrower (&). M Marples v. Hartley, IB. &S. 1, (w) 45 & 46 Vict. c. 43. See Appendix No. IV. m Section 2. (y) Section 3. (a) Section 3; Hickson v. Darlow, 23 Ch. D. 690. (a) Swire v. Cookson, 9 App. Cas. 653. (b) Davis v. Burton, 11 Q. B. D. 539 ; Melville v. Stringer, 13 Q. B. D. 397; and see In re WiUiams 25 Ch. D. 663, 664. (5225) 140 BILLS OF SALE ACTS, How a bill of If a bill of sale be really voluntary, although it may sale may be have complied with the technical requirements of the avoided. gjUg f g a ] e Acts (c), it may be avoided either under 13 Eliz. c. 5, or as an act of bankruptcy ; or, if for value, on proof of actual fraud. A bill of sale may be fraudulent on any of the above grounds although it fulfils all the technical require- ments of the Bills of Sale Acts. The mere fact of due registration under the Bills of Sale Acts does not nec- essarily make it good against creditors (c). [ * 138 ] * A bill of sale may also be deemed fraud- ulent, by virtue of the Bills of Sale Acts, because it fails to comply with them ; although it is in fact bona fide and untainted by fraud. It is from this point of view they are here considered. Three classes The result of the Act of 1882 and that of 1878 seems of bills of to be to divide bills of sale into the following three sale - classes : — 1. Bills of sale executed on or after November 1, 1882, to secure the payment of money ; which are sub- ject to the provisions of the two Acts of 1878 and 1882 (d). 2. Bills of sale, executed before November 1, 1882, whether absolute or to secure the payment of money. 3. Absolute bills of sale executed on or after No- vember 1, 1882 (e). Both these two last classes are subject only to the provisions of the Act of 1878, unless it is in the Act of 1882 otherwise specifically enacted (/). Require- Every bill of sale under the Act of 1882 is void un- mentsof Bills less made in accordance with the form in the schedule ?L S o al f Ac \ annexed to the Act (g). 1878, Amend- itj: went Act, (c) See Mercer v. Peterson. L. R. 2 Ex. 304, S. C. L. R. 3 Ex. ; 1882. Oriental Banking Co. v. Coleman, 3 Giff. 11; and see BarriHe t. Terry, 6 H. & N. per Martin, B., 812; post, p. 141. (d) Swift v. Pannell, 24 Ch. D. 210; Casson v. Churchley, 53 L. J. (N.S.) Q. B. 335. («) Robinson v. Tucker, 1 C. & E. 173: Swift v. Pannell, 24 Ch. D. 210; Casson v. Churchley, 53 L. J. (N.S.) Q. B. 335. • (/) 45 & 46 Vict. c. 43, s. 13. (g) 45 & 46 Vict. c. 43, s. 9. (5226) 1S78 and 18S2. 141 Such bill of sale must be made or given in consider- ation of a sum not under £30 (h). It must also be duly attested and registered under the Act of 1S78 within seven clear days after the execution thereof, and shall truly set forth the consideration for which it was given ; otherwise such bill of sale shall be void in respect of the personal chattels comprised therein (i). There have been many conflicting decisions on the point when a bill of sale under the Act of 1882 is made in accordance with the form in the schedule annexed to the Act. In the recent case of Ex parte Stanford (k), decided Ex parte. by the full Court of Appeal, a bill of sale whereby the Stanford. grantor, as security * for money, " as bene- [ * 139 ] ficial owner " assigned chattels to the grantee was held void because, by virtue of section 7 of the Conveyanc- ing Act, 1881, a covenent thereby introduced altered the legal rights of the parties from those given by section 13 of the Bills of Sale Act of 1882. The true principle was there laid down to be this : Test whether a bill of sale is in accordance with the prescribed form a hill of sale if it" is substantially in accordance with it, if it does not is in accord- depart from the prescribed form in any material re- ? nce . spect. schedule. The bill of sale may diverge substantially from that form in either of the two following ways ; and in such case is void. It may thereby have a legal consequence or effect either greater or smaller than that which would attach to it in the prescribed form. It may also thereby de- part from that form in a manner calculated to mislead the borrower. "Whatever form the bill of sale takes, the form adopted by it, in order to be valid, must produce not merely the like effect, but the same effect — that is to say, the legal effect, the whole legal effect, and nothing but the legal 0) 45 & 46 Vict. c. 43, s. 12; see Davis v. Usher, 12 Q. B. D. 490. (i) 45 & 46 Vict. c. 43, s. 8. (k) 17 Q. B. D. 259; at pp. 270, 271. 15 STAT. OF ELIZ. (5227) 142 BILLS OF SALE ACTS, effect, which it would produce if cast in the exact mould of the schedule. Bill of sale under Act 1882 if void is so against all persons. In the cases cited below (I) one or more of the va- riations have been held to substantially alter the legal effect of the bill of sale from the form in the schedule so as to avoid it. But, in the cases cited below (m), the variations in the bill of sale from the form in the schedule have been deemed so slight in their legal ef- fect that it has been upheld. [ * 140 ] * Every bill of sale by way of security for the payment of money is, if made after November 1, 1882 (n), absolutely void against the whole world, even as against the grantor, if it is not in accordance with the provisions of the Act of 1882 (o). it is void if not in accord ance with form in schedule. And every If a bill of sale is rendered void because not made covenant and in accordance with the form in the schedule to the Act provision m £ J882 (p), then every provision and covenant con- tained therein is also rendered void. The document cannot be bad as a bill of sale and yet be valid as a cov- enant to secure the payment of principal and interest by the grantor. The whole document is, in fact, abso- lutely nugatory (g). (I) In re Williams, 25 Ch. D. 656 ; Davis v. Burton, 10 Q.~B. D,. .414, S. C. 11 Q. B. D. 537 ; Melville \: Stringcr,.13 Q. B. D. 392 ; Helherington v. Groome, 13 Q. B. D. 789 ; Levy v. Polack, 52 L. T. (N.S.) 532 ; Grosser & Long v. Maxwell, W. N. (1885), 95 ; Sib- ley v. Higgs, 15 Q. B. D. 619 ; Myers v. Elliott, 16 Q. B. D. 526 ; Ex parte Parsons, 16 Q. B. D. 532 ; Clemsonv. Townsend, 1 C. & E. 418 ; Lee v. Barnes, 17 Q. B. D. 77 ;' Gold Strom v. Tallerman, 17 Q. B D. 80 ; Blaiberg v. Parsons, 17 Q. B. D. 337 ; Danes v. Bees, 17 Q. B. D. 408 ; Farber v. Cobb, 17 Q. B. D. 459 ; Biauchi v. Offord, 17 Q. B. D. 484 ; Mnclcay v. Meredith, 34 W. E. 433 , The Liver- pool Crmmercial Co. v. Bichardson, 55 L. J. (N.S.) Q. B. at p. 455. (m) II'(7.w» v. Kirkwood, 4S L. T. (N.S.) 821 ; In re Cunning- ham, 28 Ch. D. 682, Hammond v. Hocking; 12 Q. B. D. 291 ; Bob- erts v. Bobcrls, 13 Q. B. T>., 794 ; Farber v. Abrey, 1 C. & E. 186; Thorp v. Creegen, 55 L. J. (N.S.) Q. B. 80 ; Ex parte Allam, 14 Q. B. D, 43 ; In re Hall, 14 Q. B. D. 386 ; The Consolidated Credit and Mortgage Corporation, Limited, v. Gosney, 16 Q. B. D. 24 Hughes v. Little, 17 Q. B. D. 204 ; Ex parte Bentliy, 34 W. B. 579; In re Clearer, 55 L. J., (N.S.) Q. B. 455 ; Lumleyv. Simmons, 55 L. J. (N.S.) Q. B. 579. (m) Ante, p. 138. (o) 45 & 46 Vict. c. 43, ss. 7, 8, 9, 12 ; see Davis v. Burton, 11 Q. B. D., per Brett, L.J., 539, 540 ; Ex parte Parsons, 16 Q. B. D., per Lindley, L.J., 546 ; Ex parte Stanford, 17 Q. B. D., per Fry, L.J., 274 ; Daries v. Bees, 17 Q. B. B. 408 ; Blaibera v. Par- sons, 17 Q. B. D. 337. (p) Section 9. (g) Davies v. Bees ; 17 Q. B. D. 408. (5228) 1S78 and 1882. 143 It is conceived that a mortgage may now, by reason is a deed merely of containing an attornment clause or a power of with attorn- distress, become totally void under the Bills of Sale ™ en * cla,lse Act, 1882 (i-), if, by reason only of containing such aV oidedin clause or power, it requires registration under that Act toto under as a bill of sale within the meaning of the Act of 1878 Act 1882? (s). The mortgage cannot be made in the form pre- scribed in the schedule to the Act of 1882, and there- fore it would appear to be absolutely void (t). There has been no express decision, however, that a mortgage deed which contains an attornment clause or power of distress therefore requires registration as a bill of sale within the meaning of the Bills of Sale Act, 1878 (u). It may perhaps be held that, even if this be so decided, if the true intention of the mortgage deed is not to create a bill of sale, the whole deed will not be avoided simply because, qua. a particular clause in it not being a part of its real purport and intention, the mortgage deed required registration. The relation created by an attornment clause is only * creat- [ * 141 ] ed as subsidiary to the mortgage, and is to operate as an additional and better security to the mortgagee (v). On this ground, such a deed may possibly be distin- guished from one of which the sole object is to secure the payment of money lent on the security of personal chattels. Before the Act of 1878 it was not necessary to state Considera- the consideration in a bill of sale. tion under Bills of Sale But under the Act of 1878 a bill of sale is deemed c s ° "fraudulent and void" (w) and under that of 1882" "void" (x) if it does not set forth the consideration for which it was given. Inasmuch as under the Act of 1878 the consideration (r) 45 & 46 Vict. c. 43, s. 9. (s) 45 & 46 Vict. c. 43, s. 3 ; 41 & 42 Vict. c. 31, ss. 4, 6. (0 Ex parte Parsons, 16 Q. B. D. 532 ; Dairies v. Bees, 17 Q. B. D. 408 ; Blaiberg v. Parsons, 17 Q. B. D. 337. (a) See Ex parte Williams, 7 Ch. D. 138 ; Ex parte Jackson, 14 Ch. I). 725 ; Ex parte Vnisey, 21 Ch. D. 442 ; Dav. Prec. Conv. 4th ed. vol. 2, pt. 2, 98, 99. (it) In re Stockton Iron Furnace Co., 10 Ch. D. 356, 357; Ex parte Punnett, 16 Ch. D., per Jessel, M.E., 235, and Lush, L.J., 236. (w) 41 & 42 Vict. c. 31, s. 8. (x) 45 & 46 Vict. c. 43, s. 8. (5229J 144 BILLS OF SALE ACTS, Must it be valuable ? must be stated (y), while under the Act of 1882 it must be " truly stated " (z), the decisions under the Act of 1878 on the question what is a sufficient state- ment of the consideration will apply to cases under the Act of 1882 (a). Neither in the Act of 1878 nor in that of 1882 is it expressly required that the consideration to be stated should be a valuable one. There appears to be no de- cision upon the point whether, under either Act, the statement of a good or merely a meritorious considera- tion would suffice to uphold a bill of sale otherwise valid. It is conceived that a bill of sale in which the consideration is " stated," or " truly stated," would not be avoided, under either Act, merely because it was not a valuable* one. The question under these Acts is merely whether the real consideration has been set out. The nature of the consideration is not material for the purposes of those Acts. What is con- sideration ? What con- sideration must be stated. The word " consideration " is a legal term, and it means that which in point of law is the consideration for the giving of the instrument (b). It means every- thing, no more and no less, than the grantor gets for [* 142] the bill of sale (c),but not at all necessarily *the amount named by the bill of sale, which may be much more or less than the consideration (d). It has been held that the consideration which must be set forth is that which the grantor actually receives from the grantee for giving the bill of sale, the real, the actual consideration; probably it need not be stated with minute accuracy, but it must be set forth substan- tially (e). It is sufficient if the facts are accurately stated either (y) 41 & 42 Vict. c. 31, s. 8. («) 45 & 46 Vict. c. 43, s. 8. (a) Post, pp. 142 et seq. (6) Ex parte Challinor, 16 Ch. D. 265, per James, L. J. : Ex parte Winter, 29 W. R. 575. (c) Ex parte Charing Cross Advance Bank, 16 Ch. D. 35. Id) Ex parte Challinor, 16 Ch. D. 268, per James, L.J. (e) Ex parte National Mercantile Bank, 15 Ch. D. 53, per James, L.J.; Roberts v. Roberts, 13 Q. B. D. 802, per Brett, M.R.; Ex- parte Winter, 29 W. E. 575; Ex parte Beetenson, 42 L. T. (NS.) 808. (5230) 1878 and 1882. 145 as to their legal effect or as to their mercantile and busi- ness effect, although they may not be stated with strict accuracy (/). The real consideration as between the grantor and. grantee, the consideration which should have been properly stated in the deed if the Act had not been passed, is the consideration which must be stated (g). There is one class of cases in which the real question What is is, what is a proper statement of the amount of the con- proper state- Nation? -If The fact that part of the money was paid to other persons with the grantor's assent does not render the statement of the consideration inaccurate (h). So, a statement of the consideration as " £2050 by the mortgagees paid to the mortgagor," which was handed over the counter to the mortgagor, of which £550 was at once handed back to the mortgagees to meet bills payable by the mortgagor to the mortgagees, but not then due, was upheld (i); and also where the consideration was stated to be £560, of which sum £60 was really retained for the costs of the valuers and the solicitor's costs both of preparing the bill of sale and of other matters (fc). But the amount has been held untruly stated where it was * expressed to be "£120 by the mort- [* 143] gagee paid to the mortgagor at or before the execution hereof," while in fact only £90 was advanced, £30 be- ing deducted by the grantee for interest and expenses (I). This case was distinguished from Ex parte Na- tional Mercantile Bank (m) on the ground that in that case the retainer was to meet a debt existing independ- ent of the bill of sale, while in this case the liability arose solely out of it. (/) Credit Co. v. Pott, 6 Q. B. D. 299, per Brett, L.J. (g) Credit Co. v. Pott, 6 Q. B. D. 297, per Selborne, L.C.; Ex parte Johnson, 26 Ch. D. 348, per Bowen, L.J. (h) Hamlyn v. Betteley, 5 C. P. D. 327. (i) Ex parte National Mercantile Bank, 15 Ch. T>. 55; Credit Co. v. Pott, 6 Q. B. D. 295. (k) ExpaHe Challinor, 16 Ch. D. 260; followed in Ex parte Bol- land, 21 Ch. D. 543. (1) Ex parte Charing Cross Advance Bank, 16 Ch. D. 35; Ex parte Firth, 19 Ch. D. at p. 430. (m) 15 Ch. D. 42. (5231) 146 BILLS OF SALE ACTS, proper amount is stated. Test whether In Ex parte Rolph (n) and Ex parte Firth (o) these cases were all reviewed, and reconciled in the Court of Appeal .by the application of the following principle, laid down by James, L.J., in Ex parte Challinor (p), and quoted with approval by Cotton, L.J., in Ex parte Bolland (q). Whether the whole of the mortgage money secured by a bill of sale is actually paid by the lender into the hands of the borroJwer, or whether part of it is with his privity or by his direction employed in the payment of a debt due by him, it is equally in a legal sense paid to him, and the whole sum may in either case be truly stated in the deed as the considera- tion paid to the grantor. But the money retained or applied must be in respect of a debt strictly so called, a debt existing at the time, independent of any created by the bill of sale (r). So, where the consideration was stated to be "£700 now in hand paid," while £7 10s. was retained by the grantee for commission on the loan and expanses in connection therewith, it was held untruly stated (s). In Ex parte Rolph (t) the consideration was ex- pressed to be "£50 by the assignee paid to the assignor at or before the execution hereof." In fact, only £21 10s. was paid to the assignor on the execution of the deed, and £25 was retained and paid by the assignee a week later to the assignor's landlord for the rent of the house in which the chattels were for the two quarters, of which the first was not due for two days, in accord- ance with a written request of the assignor dated the [ * 144] day of the execution of the deed. *The Court of Appeal held the consideration to be untruly stated, because the £25 was not paid at all at the execution of the deed, and was not paid to the assignor at all, but only on his behalf. In Ex parte Firth (o), the consid- eration was expressed to be "the sum of £40 now lent and paid by the mortgagee to the mortgagor," while in fact only £38 10s. was then paid, £1 10s. being retained by the grantees for the cost of the bill of sale given by (n) 19 Ch. D. 98. ~~~~ (o) 19 Ch. D. 419. (j>) 16 Ch. D. 260. Iq) 21 Ch. D. at p. 552. (r) Ex parte Firth, 19 Ch. D. 429, per Jessel, M. E.: and set Ex parte Bolland, 21 Ch. D. per Cotton, L. J., 552. (s) Hamilton v. Chaine, 7 Q. B.D. 1, 319; and see Ex parte Car- ter, 12 Ch. D. 908. (0 19 Ch. D. 98; see Collis v. Tuson, 46 L. T. (N.S.) 387 . (5232) 1878 and 1882. 117 way of mortgage. It was held by the Court of Appeal that, as there was no debt until after the transaction was completed, the consideration was untruly stated. But in the case of In re Cann (v), however, a bill of sale was given "in consideration of £10 now paid by H. to C." In fact, D. acted as solicitor in the matter for both H. and C, and, on the execution of the deed, re- ceived the £10 from H., and, with C.'s consent, retained £9 for costs and handed over £1 to C. Cave, J. , held that, under the circumstances, the consideration was stated with perfect accuracy, for on the execution of the deed D. ceased to be H.'s agent, and was C.'s agent alone, and, as such, could apply the £9 to pay his costs. In Ex parte Bolland (w) the consideration was stated to be "£2000 to the mortgagor paid by the mort- gagee immediately before the execution of these pres- ents," while the grantor owed the grantee £2000, the bal- ance of £2500 purchase -money for a leasehold brewery, and had paid him £500 in cash and given him the bill of sale for the balance, and this was accepted by the grantee in payment. The Court of Appeal held the considera- tion to be truly stated, following JEx parte Challinor (x), as it would be held in law a payment of the £2000. There is another class of cases in which the question Cases as to is whether the circumstances attending the advance circum- have been so mis-stated as to amount to an untrue state- ^it?„ c fL° . tiClvtlllCc. meet of the consideration. It is a matter of some difficulty to say in what cases precisely, and upon what principle, the Court would, hold the mis-statement *of the transaction so [ * 145] mixed up with the consideration as to give an untrue impression of what the consideration really was (y). Eecitals of the motive and object of the advance need not be stated, nor need any collateral agreement or bar- gain between the grantor and the grantee as to the ap- plication of the consideration (z) ; nor need the history of the transaction be described (a). (v) 13 Q. B. D. 36; and see In re Williams, 25 Ch. D. 656, lie) 21 Ch. D. 543. (x) 16 Ch. D. 260. (y) Hamlyn v. Betteley, 5 C. P. D., per Grove J., 330. (z) Ex parte National Mercantile Bank, 15 Ch. D., per James, L. J., 53; Ex parte Poppleviell, 21 Ch. D. 73; Ex parte Winter, 29 "W. E. 575. (a) Ex parte Allam, 14 Q. B. D. 43. (5233) * * 148 BILLS OF SALE ACTS, Of course, if there was a bargain that the whole sum which is stated to be the consideration should be at once returned to the grantee, that would be a sham transac- tion (b). The consideration of a bill of sale which contained a recital in which promissory notes were mis described as bills of exchange which had been discounted, and in which an agreement to take up the bills was described as a covenant hereinafter contained, and was actually omitted, was held to be sufficiently stated (c). A verbal agreement not to register a bill of sale, be- ing a mere collateral agreement, is no part of the con- sideration (d). So, a recital that a bill of sale was executed to induce the grantee not to take proceedings, against the grantor was held immaterial (e). So, the mis-statement of the consideration in the deed cannot be corrected by a true statement of it in the indorsed receipt, which is not part of the deed (/). As payment does not necessarily mean payment at once, a statement of the consideration as the payment of two sums in fact paid some two months before was held sufficient (g). So, where there was an agreement that the grantor should have a present advance of £1500, and should give' a bill of sale as security for it, which was done, and that bill, being found to be worthless, was replaced by a bill in which the consideration was stated as money "now paid," the consideration was held to be properly described (h). [* 146] *Where a sum of £400 was advanced by five in- stalments, the first three of which, amounting to £240, were advanced to the grantor and his partner sometime before June, while £100 was advanced in June and £60 in July, both to the grantor alone, and the deed recited that £340 was advanced to the grantor in June all at (b) Ex parte National Mercantile Bank, 15 Ch. D., per James L. J., 5?,. (e) Roberts v. Roberts, 13 Q. B. D. 794. (d) Ex parte Popplewcll, 21 Ch. D. 73. (e) Ex parte Winter, 29 W. E. 575. (/) Ex parte Charing Cross Advance Bank, 16 Ch. D. 34. iff) Garrard v. Meek, 50 L. J. (N.S.) C. P. 187; but see Exparte Ralph, 19 Ch. D. 98. (/») Exparte Allam, 14 Q. B. D. 43; but see Exparte Berwick, 29 W. E. 292. (5234) 1878 and 1882. 149 one time, it was held that the consideration was not truly stated (*). It has been a question whether the Bills of Sale Act, Act 1882 1882, applied to cases in which the right to immediate a PP ues possession of the goods was given by the grantor to the ^aht t" grantee, and the grantee took possession of the goods immediate instantly in accordance with the contract then and there possession of made (k) g? ods } s given to grantee or The Court of Appeal, however, in Ex parte Par- not. sons (I), where the bill of sale conferred a right to im- mediate possession of the goods, laid down the princi- ple that the Act of 1882 applies, whether the right to immediate possession is or is not given by the grantor to the grantee. The ground of this decision is that (unless the document is one of the excepted class of documents specified in section 4 of the Act of 1878) section 9 of the Act of 1882 avoids every document by which goods are made a security for a debt, unless it is made in accordance with the form prescribed in the schedule. But a transaction (such as a pledge) the effect of which But not when is immediately to transfer possession as distinguished possession is from giving the right to take it is not within the scope + °gf.f re( j of the Bills of Sale Acts. The distinction seems to be t, v the that in such a case the transfer of possession precedes transaction. the document, instead of following it; and that the special property passes by that transfer of possession, and not by the document (m). The question whether a particular document, if a what i s a security for the payment of money, is within the Act bill of sale of 1882 depends upon whether it is a bill of sale as de- depends on find by the Act of 1878 (n). If the document is a bill Act 187a of sale as defined by the Act 1878, then it is a bill of sale within the Act of 1882. *By the Bills of Sale Act, 1878 (o), theexpres- [*147] (i)'Ex parte Carter, 12 Ch. D. 908; hut see Ex parte National Mercantile Bank, 15 Ch. D. 55; Credit Co. v. Pott, 6 Q. B. D. 295. (7c) See In re Hall, 14 Q. B. D. 386; In re Cunningham, 28 Ch. D. 682; hut see post, p. 150. (?) 16 Q. B. D. 532. (m) In re Hall, 14 Q. B. D. 386; InreHardwiclc, 55 L. J. (N.S.) Q. B. 490. (n) 41 &42 Vict..c. 31 ss. 4, 6, 10 (3); 45 & 46 Vict. c. 43, s. 3. (o) Section 4. (5235) 150 BILLS OF SALE ACTS, What is a bill of sale under Act 1878. What is a bill of sale. sion " bills of sale " includes " bills of sale, assignments, transfers, declarations of trust without transfer, in- ventories of goods with receipt thereto attached, or re- ceipts for purchase-moneys of goods, and other assur- ances of personal chattels, and also powers of attorney, authorities, or licences to take possession of personal chattels as security for any debt, and also any agree- ment, whether intended or not to be followed by the execution of any other instrument, by which a right in equity to any personal chattels, or to any charge or security thereon, shall be conferred." The following documents have been held to be " bills of sale " : — An agreement to execute a bill of sale, if relied on as an equitable assignment, but not if a mere agree- ment (p) ; a receipt for purchase- money (q) ; a docu- ment giving licence to take immediate possession (r) ; a post-nuptial settlement (s), but not if made in pur- suance of an ante-nuptial agreement (t). Every attornment, instrument, or agreement (not being a mining lease) whereby a power of distress is given by way of security for any debt or advance, and whereby any rent is reserved for the purpose of such security only, is deemed a bill of sale (u). And any defeasance, conditioner declaration subject to which the bill of sale is given, and which is not con- tained in the body thereof, shall be deemed to be a part of the bill, and shall be written on the same parch- ment or paper thereof (v). A parol agreement to pay a debt by instalments is a defeasance (w) ; but a memorandum was held not to be a condition so as to require registration (x), nor is a verbal agreement not to register a bill of sale (y). (p) Ex parte Mackay, L. E. 7 Ch. 643 ; Ex parte Conning, L. B. 16 Eq. 414 ; Edwards v. Edwards, 2 Ch. D. 291. (?) Snell v. Heighten, 1 C. & E. 95. (r) Reg. v. Townshend, 15 Cox, C. C. 466 ; In re Cunningham & Co., 28 Ch. D. 682; and see In reHardwick, 55 L. J. (N.S.) Q. B: 490. (s) Ashton v. Blackshaw, L. E. 9 Eq. 510. (t) Fowler v. Foster, 28 L. J. Q. B. 210. hi) Section 6 ; ante, p. 140. («) Section 10 (3). (w) Ex, parte Sontham, L. E. 17 Ed. 578 : and see Ex parte Odell, 10 Ch. D. 76. (x) Ex parte Collins, L. E. 10 Ch. 367. (y) Ex parte Popplewell, 21 Ch. D. 73. (5236) 1S78 and 1882. 151 *A bill of sale given by the equitable owner [*148] will be valid if registered in his name (y). A bill of sale originally duly registered, even if as- signed by the grantee, will be void if not re-registered (z.) But the expression " bill of sale " does not include What in not a the following documents : — kill of * ;llc - Assignments for the benefit of the creditors of the person making or giving the same, marriage settle- ments, 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, In- dia warrants, warehouse- keepers' certificates, warrants or orders for the delivery of goods, or any other docu- ments used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented. The following documents have been held not to be bills of sale : — An equitable sub-mortgage of a registered bill of sale (a) ; a transfer so far only as relates to the sum transferred, where a further advance is then made (b) ; a contract giving a right connected with the vendor's lien on goods in transitu (c) ; an inventory of goods, with receipt for the purchase-money attached to it, when not the instrument of transfer, but merely an ac- knowledgement for money previously paid (d) ; a mere equitable agreement (e) ; a building agreement which is a licence to take possession of personal chattels, but (y) Walrond v. Goldmann, 16 Q. B. D. 121, not following Chapman v. Knight, 5 C. P. D. 308. (z) Karet v. The Kosher Meat Supply Association, Limited, 2 Q. B. D. 361 ; and see Home v. Hughes, 6 Q. B. D. 676; Ex parte Shaw, 25 W. E. 686 ; Askew v. Lewis, 10 Q. B. D. 477. (a) Ex parte Turquand, 14 Q. B. D. 636. (b) Home v. Hughes, 6 Q. B. D. 676 ; and see section 10 (5); and Ex parte Shaw, 25 W. R. 68. (c) Ex parte Watson, 5 Ch. D. 35. (d) Woodgate v. Godfrey, 4 Ex. D. 59, S. C. 5 Ex. D. 24 ; Mars- den v. Meadows, 7 Q. B. D. 80 ; and see Ex parte Odell, 10 Ch. T>. 76 ; Ex parte Cooper, 10 Ch. D. 313. (e) Ex parte Maekay, L. E. 8 Ch. 653. (5237) 152 BILLS OF SALE ACTS, What are personal chattels. not as security for a debt (f), or which contains a clause that all building or other materials brought by the builder on the land shall become the property of the landowner (g) ; an agreement for the loan and. hiring [ *149 ] of furniture unaccompanied by any other *doc- uments (h), a parol agreement to give a bill of sale (i) ; property bought by a wife after marriage in re- newal or substitution for that included in the marriage settlement (k) ; an assignment for the benefit of all the creditors of the grantor (I) ; a valid hypothecation un- der the Factors Act (m) ; an assignment of a foreign ship (n) ; a charge on a share in a partnership by way of security (o). A document which gives rights at law only and not in equity is not a bill of sale (p). A bill of sale of goods in Scotland need not be regis- tered in England (g); and it would appear that an Irish bill of sale of personal chattels partly situated in England and partly in Ireland only needs registration in Ireland (r). By the Bills of Sale Act, 1878, the expression " per- sonal chattels " is defined to mean goods, furniture, and other articles capable of complete transfer by de- livery, and (when separately assigned or charged) fixtures (s) and growing crops (t). (/) Ex parte Newitt, 16 Ch. D. 532. (rj) Reeves v. Barlow, 11 Q. B. D. 610, S. C. 12 Q. B. D. 436. (h) Ex parte Crawcour, 9 Ch. D. 419 ; and see North Central Wagon Co. v. Manchester, &c., Co., 32 Ch. D. 477. (i) Ex parte Hauxwell, 23 Ch. D. 626. (k) Duncan v. Cashin, L. R. 10 C. P. 554. (I) Reg. v. Creese, L. R. 2 C. C. R. 105 ; Johnson v. Oscenton, L. R. 4 Ex. 107 ; Ashford v. Tuite, 7 Ir. C. L. Rep. 91 ; Boldero v. London and Westminster Discount Co., 5 Ex. D. 47. (m) Ex parte North- Western Bank, L. R. 15 Eq. 69 ; and see Merchant Banking Co. v. Spoffen, Ir. L. R. 11 Eq. 586 : In re Hall 14 Q. B. D. 386. (») Union Bank v. Lenanlon, 3 C. P. D. 243 ; Ex parte Hodqkin, L. R. 20 Eq. 746. (o) Exparte Fletcher, 8 Ch. D. 218. (p) Reeves v. Barlow, 11 Q. B. D. 610, S. C. 12 Q. B. D. 436; In re Rardwick, 55 L. J. (N.S.) Q. B., per Bo wen, L. J., at p. 493. (q) Coots v. Jecks, L. R. 13 Eq. 597. (r) Brookes v. Harrison, 6 L. R. Ir. 332: see section 24. (s) As to what are fixtures, see notes to Elwes v. Mawle, 2 Sm. L. C. 8th ed. 169 et seq . ; and section 7 ; and Ex parte Moore and Robin- son 's Banking Co., 14 Ch.D. 379; The Sheffield am! Sou® Yorkshire Permanent Building Society v. Harrison, 54 L. J. (N.S.) Q. B. 15. (t) Section 4; as to growing crops, see further section 7. ' (5238) 1878 and 1882. 153 Trade machinery, whether separately assigned or charged, or not, is, for the purposes of this Act, deemed " personal chattels " (t). But the expression " personal chattels " does not in- What are not elude chattel interests in real estate, nor fixtures (w) personal ■when assigned together with a freehold or leasehold in- e s ' terest in any land or building to which they are affixed; nor growing crops (v) when assigned together with any interest in the land on which they grow; nor *shares or interests in the stock, funds, or secu- [ * 150] rities of any Government, or in the capital or property of incorporated or joint-stock companies, 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 country, ought not to be re- moved from any farm where the same are at the time of making or giving of such bill of sale. It has been held that an assignment of growing crops under the repealed Act of 1854 did not require registration, as there could be no present deliveiy of growing crops (w) ; but so soon as they are severed they become personal chattels under the Act of 1887. An assignment of future growing crops • passes the property in them on their coming into existence (x). Under the Bills of Sale Act, 1878, a bill of sale was Apparent in certain events, but only against certain defined per- possession, sons, avoided (y), if the personal chattels comprised in it were, at the time specified in section 8, " in the possession or apparent possession" of the grantor (z). That " apparent possession " was also defined by the same Act (a). A bill of sale in which the sale or mortgage of the personal chattels comprised in it is followed by a com- plete transfer and delivery of them to the grantee, either at once or within the period of seven days al- U) Section 5. (m) See section 5; and Act 1882, s. 6. (v) See section 7; and Act 1882, s. 6. (to) Brantom v. Phillips, 2 C. P. D. 212; Ex parte Payne, 11 Ch. D. 539; Ex parte National Mercantile Bank, 16 Ch. D. 104. (a;) Clements v. Matthews, 11 Q. B. D. 808. (y) Davis v. Goodman, 5 C. P. D. 128; Lyon v. Tucker, 6 Q. B. D. 660, S. C. (reversed on another point) 7 Q. B. D. 523. (z) Section 8. (a) Section 4. (5239) 154 When ap- parent possession exists. BILLS OF SALE ACTS. lowed for registration, is not within this Act (6). _ The title of the grantee is in such a case as good as if the deed had been duly registered within the time(c). The doctrine of " apparent possession " was aimed at the practice of giving symbolical possession under a bill of sale by handing over a chair or something of that sort in the name of the whole of the goods, or putting a person on the premises as one of the bank- rupt's family, leaving the grantor as much the appar- ent owner of the goods as he was before the execution of the bill of sale (d). [ * 151 ] * The real question seems to be this in each case, Is the grantor having the goods kept for him, and does he still exercise dominion over them? (e) It is immaterial for this purpose how the grantee under an unregistered bill of sale has acquired posses- sion of the goods so as to exclude the apparent posses- sion of the grantor. It is enough that he has done so effectually (/). It is a difficult question to decide what the nature of the possession must be so as to exclude the operation of the Act. This is a question of fact. It must, under the Act, be something more than a merely formal possession. It must be such a visible possession in the view of the outer world that any one would infer the ownership had changed (g). So, the goods have been held in the apparent posses- sion of the grantor when the grantee of furniture in a house occupied by the grantor put a person in posses- sion of them in that house, but the grantee up to the time of his bankruptcy lived in the house and used the furniture (h) ; or when the grantee put a man in pos- (6) Chapman v. Knight, 5 C. P. D., per Grove, J., 314, 315; Ex parte Close, 14 Q. B. D.. per Cave, J., 393; In re Cunningham, 28 Ch. D., per Pearson, J., 687. (c) Ex parte Saffery, 16 Ch. D. 668. (d) Ex parte Saffery, 16 Ch. D., per Lush, L. J., 671. (e) Ancona v. Sogers, 1 Ex. D. at p. 292. (/) Ex parte Symmons, 14 Ch. D. 693. (g) Ex parte Letois, L. R. 6 Ch. 626 ; Ex parte Jay, L. R. 9 Ch. 697; Seal v. Claridge, 7 Q. B. D. 516. (h) Ex parte Hooman, L. R. 10 Eq. 63; and see Ashton v. Black- shaw, L. R. 9 Eq. 520; Ex parte Soman, L. R. 12 Eq. 598; Ex parte Harding, L. R. 15 Eq. 223. (5240) 1878 and 1882. 155 session of the goods in a house belonging to the grant- or, in which the grantor did not sleep, but of which he had a key, and went in and out as he chose (i) ; or when the grantee was entitled to, and unsuccessfully endeavored to obtain possession of, the goods (fc); or when the grantor had bailed the goods with a bailee to keep for him (I). The occupation of the premises by the grantor must What is be an actual de facto occupation ; the mere continuance occupation, of his tenancy is not enough (m); but if he does oc- cupy them, the fact that he did so as servant to the grantee, and having the benefit of the furniture as part of his salary, is immaterial (n). * Actual visible possession by the grantee [* 152 J when appar- or by some other person for him, if such a possession entpossession that every one exercising ordinary vigilance can see it, ^ excluded, will take the personal chattels out of the apparent pos- session of the grantor (o). So the possession of a receiver (p), of a sheriff under an execution issued either by the graDtee or a third party (q), an advertisement of the goods for sale under a bill of sale after the grantee has taken possession of them, though still in the house of the grantor (r), a wrongful possession, but only as to goods of which actual physical possession is taken (s), or when the debtor had the use of the goods subject to the control of the man put into possession by the grantee (t), have been held to exclude the apparent possession of the grantor. f j) Seal v. Claridge, 7 Q. B. D. 516. (k) Aneona v. Rogers, 1 Ex. D. 285; Ex parte Jay, L. E. 9 Ch. per Mellish, L. J., 705. (I) Aneona v. Rogers 1 Ex. D. 285. (ml Robinson v. Briggs, L. R. 6 Ex. 1. (m) Pickard v. Marriage, 1 Ex. D. 364; and see Ex parte Morri- son, 28 W. E. 524; Gibbons v. Hickson, 55 L. J. (N.S.) Ch. 119. (o) Ex parte Saffery, 16 Ch. D., per Lush, L.J., 671; and see Lincoln Wagon Co. v. Mumford, 41 L. T. (N.S.) 635. (p) Taylor v. Eckersley, 5 Ch. D. 740. (q) Ex parte Saffery, 16 Ch. D. 668; but see Ex parte Mutton, L, E. 14 Eq. 175. (r) Gough v. Everard, 2 H. & C. 1; Ex parte Lewis, L. E. 6 Ch. 626; Emanuel v. Bridget, L. E. 9 Q. B. 286; Smith v. Wall, 18 L. T. 182. ($) Ex parte Fletcher, 5 Ch. D. 809; but see Tucker v. Finlayson, 24 W. E. 570. (t) Ex parte National Guardian Assurance Co., 10 Ch. D. 408. (5241) 156 BILLS OF SALE ACTS, Apparent possession not under Act 1882. Reputed ownership not under Act 1878, but under Act 1882. So, if the grantee openly, really and truly takes pos- session, although the grantor remains in possession, the Act does not apply (w). It is not necessary that the posession of the grantee should be exclusive to take the goods out of the grant- or's apparent possession (v). The words " apparent possession " are not in the Act of 1882; it would therefore seem that this ques- tion cannot occur in any bill of sale by way of security for the payment of money made after October 31, 1882 (w), which if not registered within seven clear days after the execution thereof is void (x). Under the Bills of Sale Act, 1878 (y), chattels com- prised in a registered bill of sale, if given by way of absolute transfer, whether registered before November [ * 153 ] 1882 or not (z), or if given merely * by way of security for the payment of money, and duly regis- tered before November 1, 1882, are not in the order and disposition of the grantor within the bankruptcy law. The owner of chattels by virtue of such a reg- istered bill of sale is expressly protected by that Act from the operation of the doctrine of reputed owner- ship. During the seven days allowed by that act for registration, this doctrine does not apply (a). But, chattels comprised in a bill of sale given by way of security for the payment of money, and duly registered on or after November 1, 3882 (6), are in the order and disposition of the grantor within the bank- ruptcy law. So far as that Act applies, registration of a bill of sale does not affect the doctrine of reputed ownership so as to take the chattels comprised in it out of the order and disposition of the grantor (c). The chattels comprised in an unregistered or not val- (u) Dames v. Jones, 10 W. E. 779. (v) Act 1882, s. 2; ante, p. 151. !io) Act 1882, s. 8. (x) Davies v. Jones, 10 "W. E. 779; and see Ex parte Morllock, TV. N. (1881) 161. ly) 41 & 42 Vict. c. 31, s. 20 ; Ex parte Izard, 23 Ch. D. 409. (z) Swift v. Pannett, 24 Ch. D. 210. (a) In re Hewer, 21 Ch. D. 871. (b) 45 & 46 Vict. c. 43, ss. 3, 15; Svtift v. Pannell, 24 Ch. J). 210. (c) As to what is reputed ownership, see ante, pp. 128, 129, 135 ; Eobson, Ekcy. 5th ed. 529 et seq. (5242) 1878 and 1882. 157 idly registered bill of sale, whenever executed, and whether by way of absolute transfer or not, if in the apparent possession of the grantor, are of course unpro- tected by the Bills of Sale Act, 1878, and therefore are subject to this clause of the Bankruptcy Acts (d). "Under the repealed Act of 1854 the effect of an exe- How far cution was to entirely avoid a prior unregistered bill of ex 7?? tl ? ,1 11 sale (e). Under the Bills of Sale Act, 1878, however, g ale an unregistered bill of sale is void only so far as is neces- sary to satisfy the claim of the execution creditor (/) ; but this applies even if the execution creditor had notice of the bill of sale when he became the grantor's creditor (g). By the Bills of Sale Act, 1S78 (h), a bill of sale must Registration be registered within seven clear (i) days after it is under Act made or given; and the bankruptcy of the grantor 1878 - within those seven days is immaterial if the bill of sale is registered in due time (k). If a bill of sale is void because not re-registered at the Commencement of this Act, it cannot be [ * 154] renewed under it; and the same will apply to an assign- ment of it (I). By the Bills of Sale Act, 1882 (h), a bill of sale Under Act must be duly registered, under the Act of 1878, within 1882, seven clear days after its execution. This Act has been held not to apply to an unregis- tered bill of sale executed more than seven clear days before the date of its operation (n). Under the repealed Act of 1854 there was a practice, s uccess ive by agreement between grantor and grantee, to give and Mils of sale, accept successive bills of sale, each executed within (d) Ashton v. Blackshaw, L. R. 9 Eq. 510 ; Ex parte Harding, L. R. 15 Eq. 228. (e) Richards v. James, L. R. 2 Q. B. 285 ; but see In re, , Artistic Colour Printing Co., 21 Ch. D. 510. (/) Ex parte Blaiberg, 23 Ch. D. 254. (ff) Edwards v. Edwards, 2 Ch. D. 291 ; as to Act 1882, ante, pp. 138, 140. (h) Section 8. (t) Section 10 (2). Ik) Ex parte Kahen, 21 Ch. D. 871. (0 Askew v. Lewi", 10 Q. B. D. 477 ; and see Karet v. Kosher Meat Svpply Association, 2 Q. B. D. 361. (n) Sickson v. Darlow, 23 Ch. D. 690, 16 STAT. OF ELIZ. (5243) 158 Test of priority of bill of sale. BILLS OF SALE ACTS, twenty-one days after the 6ne before, the last of the series only being registered ; and this was upheld against execution creditors (o), but not against a trustee in bankruptcy (p), unless based upon a new considera- tion (q). By the Bills of Sale Act of 1878 (r) successive bills of sale of the same personal chattels executed within, or on the expiration of, seven days after the execution of a prior unregistered bill of sale are made absolutely void, unless the last bill of sale is proved to have been made only to correct an error, not to evade the Act. This does not apply to a parol agreement to give a bill of sale subsequently executed in accordance with the agreement (s); nor to a subsequent bill of sale exe- cuted more than seven days after the execution of a prior unregistered bill of sale of the same chattels (t). By the Bills of Sale Act, 1878 (u), it is provided that in case two or more bills of sale are given comprising in whole or in part any of the same chattels, they shall have priority in the order of the date of their registra- tion respectively as regards such chattels. This has been held to apply not only as between two [ * 155] registered *bills of sale, but also as between a subsequently registered and a prior unregistered bill of sale (v) ; and whether the grantee under either bill of sale is or is not in possession of the goods (iv). The point has not been decided which of two bills of sale, each duly registered within the time prescribed by the Acts, has priority. Registration Under the Bills of Sale Act, 1878, a transfer or as- of transfer of s jg nrnen t, f a registered bill of sale need not- be rogis- (o) Stamfleld v. Cubitt, 2 D. G. & J. 222 ; Hollmqsworth v. White, 10 W. R. G19 ; Smale v. Burr, L. R. 8 C. P. 64 ; Ramsden v. Lup- ton, L. R. 9 Q. B. 17. [p) Ex parte Cohen, L. R. 7 Ch. 23 ; Ex parte Stevens, L. R. 20 Eq. 786 ; Ex parte Furber, 6 Ch. D. 181 ; Ex parte Payne, 11 Ch. D. 539. (q) In re Jackson, 4 Ch. D. 682. (r) Section 9. (s) Ex parte BanxweU, 23 Ch. D. 626. It) tne verv execution of the subsequent con- fa) Doe v. Manning, 9 East, 70; ante, p. 4; Doe d. Newman v. Busham, 17 Q. B. 723, Trowell v. Shenton, 8 Ch. D, 325; et infra. (6) Clarke v. Wright, 6 H. & N. 875. See also Saunders v. De- hew, 2 Vern. 271. The mortgage, "though subsequent to the settlement, that being voluntary, was a good mortgage." (5278) VOLUNTARY CONVEYANCES VOID. 193 veyance evinces the *fraudulent intent of the [ * 188] former one; or, as was quaintly said in an old case, "be- cause it was a voluntary conveyance at first, and shall be intended fraudulent at the beginning" (c); or, as Wilmot, C. J., expressed it (d), "the statute was made in favor of subsequent purchasers paying a valuable consideration for their purchases as against persons whose title is not supported by such consideration." By afterwards selling the property the seller so entirely repudiates the former voluntary conveyance and shews his intention to sell, as that it shall be taken conclu- sively against him and the person to whom he conveyed that such intention existed ichen he made the conveyance, and that it was made in order to defeat the purchaser (e). The 4th section, which makes an exception in favor 27 Eliz. c. 4, of all conveyances, &c, had or made " upon or for good s. 4. (/) consideration, and bona fide," almost implies the necessity of such a construction; for if conveyances, &c, Exception of on good consideration and bona fide are alone excepted, conveyances, it follows that all which are without good consideration &c, on "good or bona fides are within the statute, and without such a consideration construction the statute, it is clear, would have become fide „ almost a dead letter. The case of ColvilleY. Parker (g), decided or cited 5 Doctrine well Jac. 1. shews that at that time the doctrine was well un- sett l ed - derstood (h), and it has been pretty firmly adhered to up to the present time. Almost the only conflict of cases has arisen from the Exception, doctrine that in one instance a voluntary conveyance is not void as against a subsequent purchaser for value ; and that is where the consideration for the second deed is grossly inadequate, and the purchase is, in fact, a con- trivance to get rid of the voluntary deed. The differ- ence in this respect was clearly laid down as early as in a case mentioned in Twyne's Case (i) : " That a man (e) Colville v. Parker, Cro. Jac. 158. (d) In Roe v. Mitton, 2 Wils. 3rd ed, 358, n. \e) Doe d. Newman v. Busham, 17 Q. B. 723, per Lord Campbell, C. J.; In re Barker's Estate, 44 L. J. (N.S.) Ch. 487, 489. (/) By "good" consideration is intended valuable considera- tion: 3 Rep. 83 b; ante, p. 84. (g) Cro. Jac. 158, supra. (h) See also Tonkins v. Ennis, 1 Eq. Ca. Ab. 334. But see Lord Banbury's Case, Freem. Ch. 8, 9, A. D. 1676. (i) Nedham v. Beaumont, 3 Eep. 83 b. See also Upton v. Bassett, 1 Cro. Eliz. 444. (5279) 194 VOLUNTARY CONVEYANCES VOID Doey. Roulledge. Voluntary gifts not void simply as voluntary, but as opposed to the interests of fair pur- chasers. [ * 189] who was of *small understanding and not able to govern the lands which descended to him, and be- ing giving to riot and disorder, by mediation of his friends openly conveyed his lands to them on trust and confidence that he should take the profits for his maintenance, and that he should not have power to waste and consume the same; and afterwards, he being seduced by deceitful and covinous persons, for a small sum of money bargained and sold his lands, being of great value; this bargain, although it was for money, was holden to be out of this statute. For this Act is made against all fraud and deceit, and doth not help any purchaser who doth not come to the land for a good consideration, lawfully and without fraud or de- ceit (A;) ; and such conveyance made on trust is void as to him who purchases the land for a good consideration bona fide, without deceit or cunning." Doe v. Routledge (I), which has always been brought forward (m), to shew that at that time (n) there was an opinion that voluntary conveyances could sometimes be upheld against fair purchasers, may be referred to this class of cases. There the purchaser paid only £200 for an estate worth £2000 at least; and Lord Mansfield declared the settlement good, and said that there was not a word in the statute that impeached voluntary settle- ments merely as being voluntary, but as fraudulent and covinous. But it is submitted that this decision is not really opposed to any authority before or since, and that the rule is the same at the present day, and that it can be said with perfect truth now that no voluntary settlement is impeachable merely as voluntary, but as fraudulent and covinous. The mark by which such fraud and covin is knowni or from which it is presumed, is that the voluntary set- tlement is set up against the subsequent one for valu- able consideration and bona fide; and it is remarkable that very much the same expressions were used by Lord Cranworth in 1857 as those on account of which (k) This is the kind of purchaser as against whom voluntari- ness is not, or is only prima facie, evidence of fraudulence, as spoken of in Lavender v. BlaeUtone, 2 Lev. 146; Lord Teynliam v. Mullins, 1 Mod. 119; and Holford v. Uolford, 1 Ch. Ca 216 (0 2 Cotvp. 705. (m) Doe v. Manning, 9 East, 59; Clarice v. Wright, 6 H. & N. (») A.D. 1776. (5280) AGAINST SUBSEQUENT PURCHASERS. 195 * Lord Mansfield has been accused of not hav- [ * 190] ing recognized a principle since established (o). In Cadogan v. Kennett (p) Lord Mansfield seems to Cadogan v. have been again misunderstood, -with the same result. Kcnnett. That was a case in which a marriage settlement was impeached under 13 Eliz. c. 5; and, after just mention- ing the other statute to shew the distinction he says: " The statute 27 Eliz. c. 4, does not go to voluntary- conveyances merely as being voluntary, but to such as are fraudulent. A fair voluntary conveyance may be good against creditors.' 1 '' This mast either be a mis- print for 13 Eliz. c. 5 (q), which is the most natural and likely conclusion, or it simply refers to cases where the purchaser does not come before the Court sufficiently qualified to avoid the prior voluntary disposition. In this sense there is not a word in either of these judg ments which might not have been said with equal truth at the present time. In aid of this view of the case it must be remem- bered that Lord Mansfield himself (whose decision in Doe v. Routledge (r) and dictum in Cadogan v. Ken- nett (s) have been so much relied on) had previously decided, in Chapman v. Emery (t), that the settlement there on a wife and children was void as being merely voluntary (u). Even Lord Hardwicke has been accused of erring in the same direction (v) and of putting the two statutes on the same footing (w); but his judgments on the En l e well point, when carefully compared, are thoroughly in har- t 6 ^ 6 ?! 111 ^ mony with, and may be said to have established, the w i c ke's well-settled doctrine of the present day (a;). Lord time. (o) In Perry-Herrick v. Attwood, 2 De G. & J. 21, 39. See post, p. 197, where the passage is quoted at length ; and see post, p. 218. (p) 2 Cowp. 432, 434. (q) Similar misprints are not uncommon even in reports more recently published. See Finch, 104; 2 Wils. 357; 12 L. J. Ch. 106; 4 D. & War. 427; 3 De G. & J. 189; Bayspoole v. Collins, 18 W. R. 730 S. C. L. E. 6 Ch. 228. (r) 2 Cowp. 705. (s) 2 Cowp. 432. it) 1 Cowp. 278. ' (u) See Lord Ellenborough's elaborate judgment in Doe v. Manning, 9 East, 63. (t>) 6H. & N. 880. (w) 6H.&N. 881. (x) See Oxley v. Lee, 1 Atk. 625 (a.d. 1736), in which the set- tlement was ordered to be delivered up though no fraud (see note Sander's ed.). Newstead v. Searlen, 1 Atk. 265 (A.D. 1737). (5281) 196 VOLUNTARY CONVEYANCES VOID [ * 191] *Hardwicke himself in Townshend v. Wind- ham (y), after clearly explaining the effect of the The rule as statute 13 Eliz. c. 5, as to creditors, said: " But on the laid down by 27 Eliz. every voluntary conveyance made, where after- Lord Hard- wards there is a subsequent conveyance for valuable wicke. consideration, though no fraud in that voluntary con- veyance, nor the person making it at all indebted, yet the determinations are that such mere voluntary con- veyance is void at law by the subsequent purchase for valuable consideration" (z). So when he says, in White v. Sanson (a): "I hardly know an instance where a voluntary conveyance has not been held fraud- ulent against purchasers," the natural and only way of reconciling that with his other expressions on the same subject is to suppose he had in his mind the class of cases where the purchaser came to avoid a voluntary deed without being properly qualified (6). If a settle- There is no case really opposed to the doctrine, which mentis j s now a ^ i eas t settled beyond all doubt (c) ; and the it°is fraudu- C° ur t can decree a conveyance to be fraudulent within lent under 27 the statute merely for being voluntary ; and that with- Eliz. c. 4. out any trial at law (d). So it was said by Jessel, M. E., in Trowell v. Shenton (e) : "In Doe v. Manning In Walker v. Burrows, 1 Atk. 94, he said: " But upon the statute oi the 27 Eliz., which relates to purchasers, there indeed a settle- ment is clearly void if voluntary, that is, not for a valuable con- sideration, and the subsequent purchasers shall prevail to set aside such settlement." See also Underwood v. Eitchcox, 1 Ves. 279, 280, and Townshend v. Windham, 2 Ves. 1, 10. And in Sen- house v. Earle, 1 Amb. 289, he said : ' ' But that is a voluntary settlement and not in pursuance of the articles, and therefore could not hurt the mortgage; for as against a purchaser (and a mortgagee is such) the law declares a voluntary settlement to be void." See also ShawY. Slandish, 2 Vern. 327 (a.d. 1695); Wat- kins v. Sleevens, Nels. 160; Hallon v. Neal, B. N. P. 90 a, 261, 1 Brownlow, 45; Birch V; Blagrave, 1 Amb. 265. (y) 2 Ves. 10. (z) And thirty-seven years afterwards Lord Thurlow said the rule was such, and so many estates stood upon it, that it could not be shaken;- Evelyn v. Templar, 2 Bro. C. C. 149; and see Tay- lor v. Stile, (Ch. 1763, MS.), stated Sug. V. & P. 14th ed. 714 (a) 3 Atk. 412. (b) Upton v. Bassett, 1 Cro. Eliz. 444; post, p. 218. (c) Doe v. Manning, 9 East, 59 ; Cormiclc v. Trapaud, 6 Dow, 60 ; Leach v. Dean, 1 Rep. Ch. 78 ; Boe v. Mitton, 2 Wils. 356 ; Ticyne's Case. 3 Rep. 80 b ; Evelyn v. Templar, 9 Bro. C. C. 148 6 H. & N. 860, 875 ; Goodright v. Moses, 2 W. Bl. 1019 ; Jenkins v. Kemishe, Hardr. 395, 1 Lev. 150 ; Clarke v. Wright, 6 H & N 860, 875 ; Shurmur v. Sedgwick, 24 Ch. D. 597. Id) White v. Hussey, Prec. Ch. 13. (e) 8 Ch. D. 325. (5282) AGAINST SUBSEQUENT PURCHASERS. 197 (/) Lord Ellenborough reviewed the cases, and drew from them the conclusion that, if a settlement was vol- untary, it was fraudulent within the meaning of the statute. That decision was in 1807 and has been fol- lowed ever since, and to cite cases * of an ear- [* 192 ] lier date with a view to lead the Court to a contrary conclusion is a mere waste of time." The meritorious consideration of the first conveyance, as its being a provision for wife and children (gr), or being founded on strong moral obligations (h), will not prevent its being voluntary ; nor will the voluntary conveyance having been made by direction of the Court support it against a purchaser (i). The statute extends to the case of a tenant in tail Voluntary suffering a voluntary recovery with a deed to lead the recovery by uses also voluntary (fc). " The case of Doe d. Baver- * e ? ant .™ stock v. Rolfe" (I), said Lord Campbell (m), "is an ex vo i un t a ry press authority for so holding. That case was mainly uses, void, grounded on the case of Fitzjames v. Moys (n) but all the authorities bearing upon this point were then con- sidered, and we" (the Court of Queen's Bench) " think that the conclusion at which the Court arrived on such consideration was correct." In such a case, however, the recovery will be valid so But bars the as to bar the estate tail, but the voluntary uses declared entail, will be void against a purchaser, and if all the uses de- clared are void, the recovery will, it seems, enure to give the tenant in tail the fee simple (o). It makes no difference whether the voluntary convey- Trustees ance be to trustees or directly to the volunteers ; if to interposed, immaterial. (/) 9 East, 59. (g) Waikins v. Steevens, 1 Nels. 160 ; Goodright v. Moses, 2 W. Bl. 1019 ; Chapman v. Emery, 1 Cowp. 278 ; Barton v. Vanhey- thuysen, 11 Hare, 126, 129 ; Shurmur v. Sedgwick, 24 Ch. D. 597. (h) Stiles v. Attorney-General, 2 Atk. 152 ; Dolphin v. Aylward, L. E. 4 H. L. 486 ; Cracknall v. Janson, 11 Ch. D. 21, 22 ; post, p. 198. (i) Martin v. Martin. 2 Russ. & My. 507. (k) Tarleton v. Liddell, 17 Q. B. 390. (I) 8 Ad. & E. 650. (m) 17 Q. B. 422. (n) 1 Sid. 133. (o) Nightingale v. Earl Ferrers, 3 P. "Wms. 206 ; Stapillon v. Stapilton, 1 Atk. 2 ; Robert's Case, 3 Atk. 308, 313 ; Martin v. Straehan, 5 T. R. 107, n. ; notwithstanding the older cases, in which it was held that it should enure to the old uses ; Argol v. Cheney, Latch, 82 ; Waker v. Snowe, Palm. 359. (5283) 1S8 VOLUNTARY CONVEYANCES VOID trustees and all the cestui que trusts are volunteers, the conveyance to the trustees is void under the statute no less than the interests of the cestui que trusts (p). Settlor's [ * 193] *And the question whether the settlor was or debts imma- was not indebted when he executed the voluntary deed terial. j a f CO urse immaterial (q) with repect to the claims of a subsequent purchaser of the estate. Notice of the The fact that before purchasing the purchaser knew voluntary and had notice of the prior voluntary settlement makes Qeea .™akes no difference, if tbe first conveyance be voluntary and the purchaser a bona ride purchaser tor value (r). no difference. Thus, five years after the statute (s) the Court held that, notwithstanding the notice, the prior conveyance was void, " for the notice of the purchaser cannot make that good which an Act of Parliament made void, as to him. And true it is quod non decipitur qui scit se decipi (t); but in that case the pnrchaser is not deceived, for the fraudulent conveyance whereof he had notice is void as to him by the said Act, and therefore shall not hurt him, nor is he, as to that, in any manner deceived;" and the purchaser for valuable consideration of an equitable estate is in the same manner protected by • equity (u). Artificial An artificial and constructive fraud has thus grown fraud. out of the interpretation of this statute; and that, in which there is de facto, and from the nature of the case, no fraud or fraudulent intention whatever, is de- clared fraudulent by an arbitrary legal presumption (v). (p) Barton v. Vanlicythuysen, 11 Hare, 126 ; Townend v. Toker, L. R. 1 Ch. 446, 458 ; Lister v. Turner, 5 Hare, 281. (q) Rex v. Nottingham, Lane, 47 ; While v. Stringer, 2 Lev. 106; Townshend v. Windham, 2 Ves. 11 ; ante, pp. 15, 191. (r) Evelyn v. Templar, 2 Bro. C. C. 148 ; Chapman v. Emery, 1 Cowp. 278 ; Doe v. Rusham, 17 Q. B. 723, 725 ; Doe v. Manning, 9 East, 59 ; Bayspoole v. Collins, L. R. 6 Ch. 232 ; Peter v. Kicolls, L. R. 11 Eq. 391 ; Fletcher v. Ketteman, 40 L. J. (N.S.) Ch. 624. But see Watkins v. Steevens, Nels. 160 ; post, p. 196. (s) Gooch's Case, 5 Rep. 60. See also Gardiner v. Painter, Sel. Ca. in Ch. 65 ; Roe v. Mitton, 2 Wils. 356, 358 h ; Goodright v. Moses, 2 W. Bl. 1019 ; Tonkins v. Ennis, 1 Eq. C. Ah. 334. (1) So also in the civil law : "Nemo enim videtur fraudare eos qui seiunt et consentiunt" : Dig. lib. 42 tit. 8, par. 6, sec. 9. (u) Buckle v. Mitchell, 18 Ves. 110 : Barton v. Vanheythmisen, 11 Hare, 126, 130. (v) "Quae natura videntur honesta esse, temporibus, sunt in- honesta'' : Cic. De Off. lib. 3 ; and see In re Ridler, 22 Ch. D., per Cotton, L. J., 82. (5284) AGAINST PURCHASERS WITH NOTICE. 199 The reasoning on which this doctrine is founded, if Reasons sound, is at least purely technical, and would seem to against th» extend the operation of the statute beyond the limits of rule - its usefulness. *It is absurd to say that it is [ * 11)4] necessary for the protection of a purchaser to make void as to him a voluntary conveyance of which he is aware; for he need not buy unless he chooses (w). On the contrary, the rule can hardly ever be of any practi- cal use to a really fair purchaser, who, having notice of the voluntary deed,could not be advised to purchase a law- suit by buying the property. For the apparently volun- tary deed might at any time within the Statutes of Limi- tation be set up against him as not really voluntary. A deed apparently voluntary may be supported by proof of consideration (x), or by considerations which arise subsequently to the deed (y). The purchaser would have either to bring an action for specific per- formance against the vendor and the volunteers, to have the invalidity of the previous conveyance estab-_ lished, with the chance of failing in this attempt; or, if he should not care to venture on this, he is in no better position than he would have been in if the pre- vious conveyance was not void against him with notice — he must relinquish his bargain. The rule does not harmonize with the admittedly beneficial operation of the Act (in affording real protection to purchasers without notice), and it is inconsistent with its leading principles. Those are, firstly, that a voluntary instru- ment shall be good as between the parties, for it gives the settlor the power of defeating his own gift at any "^, ® subsequent time ; and secondly, the rule that bona fide d e f ea t his purchasers and they alone shall be protected from gift. fraud and "secret and covinous conveyances." &c. ; for "Secret" a man cannot be said to be defrauded by a " secret " conveyance, conveyance when he purchases willingly with full knowledge of it. is a fraud on the volun- Again, the statute ''was made against all fraud and Purchase deceit, and doth not help any purchaser who doth not with notice come to the land for a good consideration, lawfully and "" without fraud and deceit" (z). In upholding the settle- teers, mentin Roe v. Mitton (a), Wilmot, C.J., said : "Whether W Clarke v. Willolt, L. E. 7 Ex. 313. (x) See post, p. 266. (y) Clarke v. Willotl, L. E. 7 Ex. 317, 318 ; and see post, pp. 315 et seq. (a) Twyne's Case, 3 Eep. 83 b. (a) 2 "Wils. 358. (5285) 200 VOLUNTARY CONVEYANCES VOID The rale condemned by judges. SirW. Grant. Notice of deed on meritorious consider- ation. [ * 195] the purchaser for a valuable *consideration had notice of this settlement or not is not material (I think) in this case; but if he had notice I am clearly of opin- ion that the purchase is fraudulent." And so it is in every case : if a man has (perhaps in the discharge of a high moral duty in providing for his wife and chil- dren) made a voluntary settlement, how can a pur- chaser, knowing of that settlement, and combining with the settlor to defeat it, be represented as "without fraud and deceit?" Many opinions of judges are recorded condemning the doctrine ; but as it has now stood ever since the Act was first passed (b), it is, as Lord Eldon observed (c), too late for any judge to dispute it ; but the opin- ions of so many eminent judges (d) as to the injustice of the rule would seem to warrant the interposition of the legislature. "It must, I conceive, be assumed," said Sir W. Grant (e), " that the statute of the 27 Eliz. has received this construction : that a voluntary settle- ment, however free from actual fraud, is by the opera- tion of that statute deemed fraudulent and void against a subsequent purchase for a valuable consideration, even when the purchase has been made with notice of the voluntary settlement. I have great difficulty to persuade myself that the words of the statute war- ranted, or that the purpose of it required, such a con- struction ; for it is not easy to conceive how a pur- chaser can be defrauded by a settlement of which he has notice before he makes his purchase (/ ). But it is essential to the security of property that the rule should be adhered to when settled, whatever doubt there may be as to the grounds on which it originally stood." It seems indeed to have been the rule at one time [ *196 ] that a deed *on meritorious consideration (as (b) A.D. 1585 ; Gooch's Case, 5 Rep. 60 (a.d. 1590). (e) In Pulverioft v. Pulvertoft, 18 Ves. 90. (d) Of Lord Talbot and Chief Justice Wilmot, 2 Wils. 3rd ed. 358 ; Lord Thurlow in Evelyn v. Templar, 2 Bro. C. C. 148 ; Lord Ellen borough in Doe v. Manning, 9 East, 71 ; Chief Justice Cock- burn in Clarke v. Wright, 6 H. & N. 870 ; Sir J. Mansfield, C.J., in Doe v. Martyr, 1 B. & P. N. R. 335 ; and of Lord Eldon and Sir W. Grant as mentioned in the text ; Brandlyn v. Ord, 1 Atk. 571 ; Rosher v. Williams, L. R. 20 Eq. 218. But see 1 Fonbl. Eq. 271, and Rob. Fraud. Conv. 41. (e) In Buckle v. Mitchell, 18 Ves. 110 ; and see Trowell v. Shen- ton, 8 Ch. D. 318. (/) "Nemo enim videtur fraudare eos qui sciunt et consenti- unt" : Dig. lib. 42, tit. 8, par. 6, sec. 9. (5286) AGAINST PURCHASERS WITH NOTICE. 201 a post-nuptial settlement on wife and children) -would be good against a purchaser with notice, though not against one without notice, the wife and children not being regarded as mere volunteers (g). This distinction, however, will not now be allowed, of no weight and it must be taken as definitely settled that, whether now. with or without notice, a conveyance in favour of rela- tions, however honest and otherwise praiseworthy, or even a provision for a man's wife and children, how- Void against ever sacred in a moral point of view the duty of making a purchaser such a provision may be, is bad against a future pur- w j tn or chaser, as without consideration and voluntary (h). ■without But where the purchaser has taken a collateral se- Collateral curity against the voluntary deed the question of no- security. tice seems to have been made one of importance (i). In the New York statute (fc), substantially re-enact- American ing 27 Eliz. c. 4, there is a clause to the effect that law . I s to "no such conveyance or charge shall be deemed fraud- notlce - ulent in favour of a subsequent purchaser who shall have actual or legal notice thereof at the time of his purchase, unless it shall appear that the grantee in such conveyance, of person to be benefited by such charge, was privy to the fraud intended." And it seems that throughout the United States, where the prin- ciples of the statute have been adopted (without in all cases any formal re-enactment), the same law prevails : that a purchaser cannot avoid a fair voluntary convey- ance prior to his own and of which he had notice (I). (g) 1 Eq. C. Ah. 354, pi. 4. In Doe v. Routledge, 2 Cowp. 712, Lord Mansfield says : " But in respect of voluntary family set- tlements, to he sure notice varies it much;" on the principle adopted hy equity in construing 7 Anne, c. 20, under which, where a man knows of an unregistered deed his registered deed shall not set it aside. (h) Clarice v. Wright, 6 H. & N. 870 ; Dolphin v. Aylward, L. E. 4 H. L. 486 ; Trowell v. Shenton, 8 Ch. D. 318. (i) Aldridge v. Duke, Finch 439, where, however, the pur- chaser seems hardly to have been properly qualified ; Jennings v. Selleck, 1 Vera. 467, though it is not certain that the settlement there was voluntary ; and White v. Stringer, 2 Lev. 105, 2 P. Wms. 255, where, again, there was another point in favour of the volunteers— viz., that their interest was after a vested estate tail on valuable consideration : Sug. V. & P. 14th ed. 716. But see Watkins v. Steevens, Nels. 160, where the mortgage with notice and collateral security does not seem to have been questioned. (k) N. York Rev. Stats, vol. 2, p. 134, chap. 7, tit. 1, sec. 2. (Z)See Kent, Com. 12th ed. vol. 4, 464, 465; Story, Eq. Jur. 12th ed. ss. 427, 428 ; ante, p. 2. (5287) 202 VOLUNTARY CONVEYANCES VOID Conveyance for value within the statute if actually fraudulent. Conveyance for value when con- structively fraudulent. Perry Herrick v. Atlwood. Mortgagees giving up title deeds to facilitate raising money post- poned. [* 197] *A conveyance, whether voluntary or on val- uable consideration, would no doubt be void against a subsequent purchaser for value if there was any actual fraud of which the first grantee had notice, so as to prevent him from claiming the exception of the 4th section (m) as to conveyances, &c, made upon or for good consideration and bona fide, without notice of any fraud or covin (n). A conveyance for good consideration may, under some circumstances, be constructively fraudulent against a subsequent purchaser. In Perry -Herrick v. Attwood (o) A. voluntarily gave to his sisters a mortgage of real estate to secure an ante- cedent debt. The sisters allowed him to retain the title deeds that he might be enabled to give a first mortgage to secure another debt, for which he was being sued by B. A. deposited the deeds with B. to secure that debt, and afterwards, without B.'s concurrence, got possession of them and mortgaged the estate to the plaintiffs for a considerably larger sum, and delivered the title deeds to them, they having no notice of the mortgage to the sisters. Lord Cranworth held that the mortgage to the sisters must be postponed to that of the plaintiffs, for that the sisters having, with a view to A.'s raising a certain sum in priority to their mortgage, put it intp his power to represent himself as unincumbered owner, could not, as against the plaintiffs, who advanced money on the faith of A's possession of the deeds, complain that A. had raised more than was agreed upon. His Lordship said that it was not necessary that a conveyance should be voluntary to come within this statute. There was not a word in the statute about a [ * 198 ] conveyance being voluntary; the *statute (m) See ante, pp. 78 et seq., as to the similar clause in 13 Eliz. c. 5. (») See Fermor's Case, 3 Rep. 78 a, 80 a, Jenk. 254, pi. 45; Al- ien v. Gregory, 2 Eden, 280; Gooch's Case, 5 Rep. 60 a; Burrel's Case, 6 Rep. 71 b; and sec Mocatta v. Murgatroyd, 1 P. Wms.393; Hobbsv. Norton, 1 Vern. 136; Hunsden v. Cheney, 2 Vern. 150; Raw v. Pole, 2 Vern. 239; Hewett v. Loose-more, 9 Hare, 449; Col- yerv. Finch, 5 H. L. C. 905; Finch v. Shaw, 19 Beav. 500, 511; and other cases, where a person standing hy and suffering a pur- chaser to purchase land to which he himself had a claim, with- out disclosing his title, has been postponed to the purchaser. See Dart, V. & P. 5th ed. 841. (o) 2 De G. & J. 21, see also Lloyd v. Attwood, 3 De G. & J. 614. ' (5288) AGAINST PURCHASERS WITH NOTICE. 203 spoke only of conveyances made for the purpose of deceiving persons who should purchase the property, and of conveyances by the secret intent of the convey- ing parties to be to their own proper use (p). "If," his Lordship continued, "the intention of the parties to the transaction here in question was, that the Misses A." (the sisters) "should have this security, but that, nevertheless, Mr. A. should keep the title deeds that he might be enabled thereby to deal with the estate in favour of third parties, I am strongly disposed to think that the security comes within the statute; it certainly comes within its principle." In the recent case of Clarke v. Palmer (q) the deci- Clarke v. sion in Perry-Herrick v. Attwood (r) was considered Calmer. and followed by Hall, V.C., who there pointed out that the benefit of postponement would enure to any subse- quent mortgagee who had bona fide advanced his money under a mistaken belief as to the possession of the deeds. In Briggs v. Jones (s) a mortgagor of leaseholds ob- Briggs v tained the lease from his mortgagee for the purpose of J° nes - shewing it to J., a third person, to obtain money to pay off the mortgage. The mortgagee sent the lease, re- questing that it might be returned in a few days, and that J. might be informed of his mortgage. But in- stead of doing this, the mortgagor deposited the lease with his bankers, who had no notice of the mortgage, as security for money advanced by them. It was held that the original mortgagee must be postponed to the bankers. In Cracknall v. Janson (t) a secret mortgage was Cracknall v. executed to secure a sum of money long previously ad- Janson. vanced without any agreement for a mortgage, or any pressure from the lender. The deed was kept by the mortgagor, and the mortgagee did not know of its execu- tion till after the execution of a subsequent mortgage for value. It was held that the secret mortgage was fraudulent and void as against the subsequent bon& fide mortgage. (p) See Doe v. Boutledge, 2 Cowp, 705; Cadogan v. Eennett, 2 Cowp. 432. ' • (q) 21 Ch. D. 124. (r) 2 De G. & J. 21. (s) L. E. 10 Eq. 92; and see Hunter v. Walters, L. E. 7 Ch. 75; Waldy v. Gray, L. E. 20 Eq. 228. (t) 11 Ch. D. 1. (5289) 204 CONVEYANCES FOB, VALUE : Where mort- gagee not postponed. Phipps v. Endismore. [ * 199 J * But where (w) a mortgagee was induced, by a specious pretext, to allow the mortgagor to take the original lease for a short time, and he, by shewing the lease, induced another person to lend money on it, but the first mortgagee was not privy to this, and got the lease back, immediately, Lord Harcourt held that the first mortgagee should not be postponed. Where (v) a tenant for life of certain lands, with power of jointuring, on his marriage settled them on trustees for securing his wife her jointure, and, on the same day, entered into a separate deed of covenant not to sell or incumber the lands, and that, if he did so, the trustees should receive the rents and profits, and apply them, as they might think fit, for the maintenance of A., or his wife, or children, or issue, the covenant and this proviso were held fraudulent and void against a subsequent incumbrance of A.'s life estate without no- tice. Voluntary secret deed void against subsequent purchasers, though not fradulent. Lord Lyndhurst, in affirming the decision of the Vice-Chancellor, said («.') the transaction could not be sustained. A. having a life interest in certain prop- erty, can it be contended that he can enter into a cove- nant — a private deed — with his own trustees that he shall not incumber his interest in the property, and that, if he does incumber it — if, for instance, he sells it for valuable consideration— -the effect is to be that the purchaser shall not be entitled to possess what he has bought, but that A. himself, subject to the discretion of his trustees and under their direction, shall continue to enjoy the rents and profits as if the alienation had not taken place ? In point of law it cannot be sustained, even in favour of the wife and children. Though ad- mitted on all hands that no fraud was intended, the transaction is in its very nature fraudulent. Though the parties had no fraud in view the deeds themselves are fraudulent. If the tenant for life procured any person to advance money to him on the security of the property, in that event, and in that event only, was the instrument in question to have operation (a;). fit) Peter v. Russell, 1 Eq. Ca. Ah. 321, pi. 7. (v) Phipps v. Ennismore, 4 Euss. 131. (w) 4 Euss. 141 ; see ante, p. 198. (x) See also Webber v. Farmer, 4 Bro. P. C. 170, where a per- petual injunction was granted against a somewhat similar de- feasance being used in derogation of a marriage settlement on which it was a fraud. (5290) ' WHEN VOID UNDER 27 ELIZ.. C. 4. 205 * It. has been made a question whether a [ * 200 ] Purchases iu purchase by a man in the name and for the benefit of names of a child, or wife, or other person, either solely or jointly thirdpersons, with himself, in such a " conveyance, gift, grant, charge, w iti)in the or limitation of uses," as can, if voluntary, be avoided statute. by a subsequent purchaser for value from that man (y). In Barton v. Vanheythuysen (z) the property in Barton v. question was, by a deed reciting R. E. V. had contracted Vanheythuy- for the purchase of it, conveyed directly to trustees, sen - upon trust to sell and stand possessed of the proceeds upon trusts for the benefit of the wife and children of V. ; and it was argued that this conveyance did not vest any property in V., and that it was not a grant or set- tlement of real estate by him, so as to bring the case within the provisions of the statute 27 Eliz. c. 4. It was said that the purchase of an estate by a payment in the name of a child was not within the statute, and that V. did not in this case actually acquire the estate, but that it was in effect nothing more than giving the money to the wife and children, who by that means bought the estate. The learned judge who decided this case avoided this difficulty by shewing that V. had, by the recited agreement for purchase, acquired an equita- ble estate, which he then conveyed to the volunteers, and subsequently to the purchaser ; but unfortunately did not give any opinion as to the question whether a purchase in the name of a third person is within the statute. In an old case cited in Croke (a) a man purchased Lady Gorge's a manor in the name of his daughter, and afterwards Case - kept courts and made leases in his own name and al- ways took the profits, and then sold it to a purchaser, and the daughter never questioned it in the lifetime of her father ; yet it was held that unless there be some fraud discovered it is not within the statute of 27 Eliz. c. 4, although there may be many badges of fraud. This has been cited as shewing that such purchases are not within the statute ( 6 ) ; but it was cited as above mentioned for the purpose of shewing that fraud is not to be pre- sumed, and the most it can be taken to go to is, that such a purchase is not within the statute, unless (y) Sug. V. & P. 13th ed. 705, 715 ; Drew v. Martin, 2 H. & M. 130-133 ; Dart, V. & P., 5th ed. 937. (z) 11 Hare, 126-129. (a) Lady Gorge's Case, cited in Crisp v. Pratt, Cro. Car. 550. (6) Sug. V. & P. 14th ed. 705 ; Dart, V. & P. 5th ed. 937. 19 STAT. OF ELIZ. (5291) 206 PURCHASE IN NAME Question un- likely to arise. But settlor always has an equitable interest ■which he conveys. [ * 201 ] * actually fraudulent. It is hard to see how the purchase in that case could have been upheld ; but, from the scanty report, it is impossible to know what were the reasons, or, indeed, whether the purchase for the daughter was voluntary as between her and her father, for it may have been made partly with her money. This seems to be the only decision in favour of the above proposition, and, under the circumstances, cannot be considered a satisfactory authority. The question can very seldom arise, for, if the title is investigated, the mode of purchase mast apper on the face of it unless there is actual fraud ; and it might be suggested that the principle on which Barton v. Van- heythuysen (c) was decided might be extended to every case of the sort, for every conveyance must, whether it is so recited or not, be founded on a previous agreement by the payer of the purchase-money, so that he would always convey to the volunteers an equitable interest. And apart from this, it might be said that if the pur- chaser buys in the names of children, or trustees for them, that is an advancement for them (d) — a gift, not of the purchase-money, but of the estate purchased, and therefore within the words of the statute. And again, if the purchase is for the benefit of a stranger, that is, not a child, then there is a resulting trust in favor of the real purchaser which he might have insisted on (e), and in this way also he might be said to have had an equitable title, which he conveyed to the volunteer. It cannot be doubted that such a conveyance, as much as any other, is within the mischief of the statute, and as it is to be liberally expounded, and objection so purely technical may be met by an answer equally technical. Something of this sort seems to have been in Lord Hardwicke's mind when he said (/) a voluntary convey- ance of an estate by one who sells it afterwards is fraud- [ * 202] ulent, " and therefore, in this *Court, if a per- son, entitled to an estate to himself and his heirs, takes a conveyance of an estate so as to put a right in another, (c) 11 Hare, 126. (d) Dyer v. Dyer, 2 Cox, 92, 1 Wat. Cop. 216, 1 Wh. & Tu. L. C. 6th ed. 236; Sug. V. & P. 14th ed. 701. (e) Ibid, and Rug. V. & P. 14th ed. 703. (/) In Underwood v. Hiteheox, 1 Ves. 280. See also Gilb. Lex P. 272, where it is said, if a man purchases copyhold to himself, his wiie, and daughters, a mortgagee would be entitled, notwith- standing the settlement. (5292) OF THIRD PERSON. 207 the Court will consider it fraudulent, upon which kind of equity the Court has gone." In cases of actual fraud, it is conceived, the statute Actual fraud, would undoubtedly apply to such purchases (g). It seems that great lapse of time between the volun- Lapse of tary settlement and the sale to a purchaser will not of time - itself protect it against the claims of that purchaser (h) ; but, after purchasing, laches, or long acquiescence on his part after notice of the prior title, would, of course, bar his right to relief (i). Of course the doctrine of estoppel, which might pre- Estoppel. vail as between the voluntary grantor and the person who derives title under the voluntary conveyance, can- not bind those who claim from the former by a subse- quent purchase for value, and consequently derive title under the statute itself (fc). A conveyance in tail, though void under 27 Eliz. c. 4, Deed void has been held to be a breach of covenant not to assign H?. . for more than the covenantor's life (I). maybe a' breach of Every kind of instrument whereby a subsequent pur- covenant. chaser of the land is defrauded is within the meaning All kinds of of this statute (m). conveyances withm the The statute 27 Eliz. c. 4, applies only to real prop- -^rh at erty and interests in land. By the 2nd section it is en- property is acted that "All and every conveyance, grant, charge, included in lease, estate, incumbrance, and limitation of use or uses, 27 Ellz - c - 4 - of, in, or out of any lands, tenements, or other heredita- ments whatsover," made for the intent to defraud * those who "shall afterwards purchase in fee [* 203] (g) Lady Gorge's Case, citen Cro. Car. 550; Bullock v. Thome, F. Moo. 615-6; post, p. 214. (h) Alden v. Gregory, 2 Ed. 280; Willats v. Busby, 12 L. J. Ch. 105, in which specific performance was granted to a purchaser avoiding a settlement made twenty-two years before. But see Nunn v. Wilsmore, 8. T. E. 521, 529; Attorney-General v. Corpora- tion of Newcastle, 12 CI. & F. 402; Hoghton v. Hoghton, 15 Beav. 316-7; Parker v. Serjeant, Finch, 146. (i) Hoghton v. Eoghton, 15 Beav. 316-317; 3 & 4 Will. 4, c. 27, ss. 26, 27, (fc) Cracknallv. Janson, 11 Ch. D., per Fry, J., 11. U) Gewen v. Boll, Cro. Jac. 132. (m) See Phipps v. Ennismore, 4 Euss. 131, where a private deed of covenant restraining alienation by a tenant for life was held void against a subsequent alienee of his life estate; supra. (5293) 208 WHAT CONVEYANCES All kinds of interest in land. simple, fee iail, for life, lives, or years, the same lands, tenements, or hereditaments, or any part or parcel thereof," &c, "or to defraud and deceive such as have or shall purchase any rent, profit, or commodity in or out of the same," shall be void against such subsequent purchasers. These general words are sufficient to include every kind of interest in land, whether legal or equitable (n), corporeal or incorporeal; and we accordingly find that chattels real or leaseholds (o), advowsons (p), and rent- charges (q), or annuities (r) issuing out of land, are within the statute. Timber. Minerals. And it seems that timber is so also. In an old case (s) in trespass, defendant proved articles by which Sir R. H. ( under whom the plaintiff claimed) sold 300 of the best trees in such a wood, to be taken between such a time and such a time. Sir R. H. died, and the pur- chaser, within the time, took the trees. The heir in tail of Sir R. H. brought trespass, and proved that his father was only tenant in tail, but this was a voluntary settlement of his own, and the judge held clearly that this sale, being proved to be for a valuable considera- tion, bound the heir, being within 27 Eliz. c. 4, and be- sides, the settlement was with a power of revocation. And as the word "land" includes mines (t), a grant of minerals would probably be within the operation of the statute. Extends to There was some doubt at one time as to copyholds. copyholders. In jjoe v. Routledge (u) Lord Mansfield expressed an opinion that they were included, and, wondering that the point had not been decided, thought it mast have been taken for granted that they were; but it was not [* 204] until the comparatively recent case of * Doe v. Bottriell (v), followed and approved by the Master of the Rolls in Currie v. Nind (w), that it was settled that («) Barton v. Vanheytkuyseiij 11 Hare, 126, 134. (o) Co. Lit. 3 b; BurreVs Case, t> Rep. 72 a; et post, p. 238; Oxley v. Lee, 1 Atk. 624; Price v. Jenkins, 5 Ch. D. 619. (p) Hill v. Bishop of Exeter, 2 Taunt. 69; et post, p. 220. (q) Garth v. Enfield, J. Bridg. 22, cited in 11 Hare, 132. (r) Poullon v. Wiseman, Noy. 105. (s) Hatton v. Neal, B. N. P. 90 a, S. C. ibid. 261 a; Curson v. Blackall, Toth. 257; 22 Vin. Abr. 21, tit. Vol. Conv. D. 2. (t) Shep. Touch. 90; Campbell v. Leach, 2 Amb. 740, 748 (u) 2 Cowp. 705. (v) 5 B. & Ad. 131, 136. (w) 1 My. & Cr. 17; but see Bnl. N. P. 108. (5294) ARK WITHIN 27 ELIZ. C. i. 209 copyholds are within the " lands, tenements, and here- ditaments " mentioned in the statute {x). This deci- sion followed the general rule laid down in Heydon's Case (y), that "when an Act of Parliament is generally made for the good of the weal public, and no prejudice can accrue by reason of alteration of any interest, ser- vice, tenure, or custom of the manor, there many times copyhold and customary estates are within the general purview of s.uch Acts." The statute does not apply to personal property, ex- D oes no t in- cept chattels real (z). So an assignment of a sum of elude money charged on land and secured by a term for years personal is not within it (a), property. A voluntary settlement of personal property is there- fore good against a subsequent purchaser (6). Tor by the common law an estate made by fraud could be avoided only by him who had a former right, title, in- terest, debt, or demand (c); and consequently the pur- chaser, not having the protection of the statute, cannot have a better title than the settlor from whom he pur- chased (d). This statute extends to conveyances to the sovereign Extends to (e); for though not in general bound by an Act of the King. Parliament where not expressly mentioned, the King shall not be exempted by, construction of law out of the general words of Acts made to suppress wrong, because he is the fountain of justice and common right, and the King, being God's lieutenant, cannot do a wrong (f). So if a person having a remainder after an estate tail grants his remainder to the King to prevent the tenant in tail from barring the entail, the grant to the King is void against * a purchaser from the tenant in [* 205] tail, for the Crown cannot be an instrument of fraud (x) Reyner v. Powel, 2 Brownl. 79. (y) 3 Rep. 7 a, 8 a; Co. Copyholder, 151. (z) Meek v. Keltlewell, 1 Hare, 464, 473; Bill v. Cureton, 2 My. & K. 503, 512; Barton v. Vanheyihuysen, 11 Hare, 126, 132; Ashe v. Low, 1 Law Rec. (N.S.) 145; see also Kekewieh v. Manning, 1 D. M. & G. 176; ante, p. 203. (a) McClintock v. Ashe, 2 Law Rec. (N.S.) 45. (b) Jones v. Oroucher, 1 S. & S. 315; Sloane v. Cadogan, Sug. V. & P. 7th, 8th, 9th, 10th, and 11th eds. app. No. 24. (c) llpton v. Basselt, mentioned in Twyne's Case, 3 Rep. 83; Vin. Abr. vol. 13, p. 527. (d) Bill v. Cureton, 2 My. & K. 512. (e) Magdalen College Case, 11 Rep. 66 b, 74 a, b. (/) Magdalen College Case, 11 Rep. 72 a. (5295) 210 Reversion after estate tail. Voluntary conveyance to a public charity whether within the statue. GIFT TO CHARITY : and deceit : " Et cum sit author juris, non debet i-nde injuriarum nasci occasio, unde jura nascuntur" (g). It has been doubted whether a purchaser for valuable consideration can avoid a voluntary conveyance of a re- version in fee, it being, at the time of the conveyance, a dry reversion in fee expectant on an estate tail and of no value, being barrable by the tenant in tail with the consent of the tenant for life (h) ; but as. the fraud is not complete in theory until the settled land is after- wards sold (i) it would seem clear on principle that such a settlement of the property when in reversion would be void against a person who purchased the fee after it had come into possession, and no one would be likely to purchase such an estate in reversion. It has never been expressly decided whether a con- veyance to a purchaser of lands previously given to a public charity (fc) is or is not within the statute. There is certainly a difference between a voluntary conveyance to a public charity and a gift to a friend or relation; the idea of any benefit to the donor is precluded, and the pre- sumption of fraud is rebutted by the nature of the gift. East Gh'instead's Case (I) is said to have decided (m) that such a voluntary gift is good against a purchaser without express notice of the charitable use; and it was there said that if a rent-charge be granted out of lands to a charitable use, and the land is afterwards sold for valuable consideration to one that had notice of the rent yet the rent remaineth, for that the purchase was of another thing that was not given to the charitable use (n). But in Tothill (o) the same case (p) seems to be re- ferred to shew tbat a purchaser coming without notice [ * 206] of a rent-charge * shall not be chargeable there- with, although given to a charitable use (q). This is (g) Magdalen College Case, 11 Rep. 74 a, b; see also Wiseman's Case, 2 Rep. 15; CJwlmley's Case, 2 Rep. 51, 52; 2 Roll. Abr. 393; Sug. V. & P. 14th ed. 713; Wiseman v. Barnard, F. Moo. 195. See Hardcastle, Stat. 186, 188. (h) Buckley v. Arnold, 2 Eq. C. At>. 752 ; Yin. Abr. tit. Volun- tary Conveyances, (c), ca. 10. (i) See ante ; p. 14. (k) See stat. 43 Eliz. c. 4, s. 1 (l) Duke (ed. 1676), 64. (m) PI. 5, Rob. Fraud. Con. 439. (m) See post, p. 234. (o) Ed. 1671, p. 258. (p) As Maynard v. Pauperes de East Greensted. (q) Duke, by Br. 638-9. (5296) APPLICATION OF PURCHASE- MONEY. 211 what was provided by the Statute of Charitable Uses (r), Statute? of by which, moreover, the commissioners were empowered Charitable to "make decrees and orders for recompense to be made Uses. by any person who being put in trust or having notice of the charitable uses, shall break the same trust or de- fraud the same uses by any conveyance, gift, grant," &c. A purchaser without notice from a purchaser with Notice. legal notice is said to be bound by the notice of his vendor (s) ; and a consideration of doubtful or inade- quate worth, or a mixed consideration, as money and natural affection, or even the consideration of marriage, is not a sufficent consideration to avail against a charity, even without notice (/). In The Attorney -General v. Corporation of Newcastle Atiomey- (u) a corporation voluntarily founded an hospital (v), General y. and by their direction estates purchased by them were ^ Yewca^te conveyed direct from the vendor to the hospital, but were subsequently managed by them. The corporation after- wards sold the property for valuable consideration, giving the purchasers an indemnity, and bought another estate with the purchase money and other moneys of their own, and accounted to the hospital yearly for more than the rental of the estate sold ; it was held on appeal that the sale by the corporation was not valid against the charity (w). This, it will be seen, does not estab- lish that a voluntary conveyance to a public charity may not be defeated by a subsequent sale (w) for value, and Question un- the question has since been spoken of as undecided (x). settled. Whatever favour may be allowed to such conveyances Private to charities can only attach to them as being public charities, charities (y), and for the reason that such institutions are under certain restrictions, * to be supported [ * 207] on grounds of public policy ; and that a conveyance to them is of a public nature and irrevocable, precluding (r) 43 Eliz. c. 4, s. 6. (s) Duke, 159; ibid, (by Bridg.) 638; Shelf. Mortm. 299. (0 Duke, 177. («) 5 Beav. 307. S. C. 12 CI. & F. 402. (v) Under 39 Eliz. c. 5. (w) Sug. V. & P. 14th ed. 719 ; and see Dart, V. & P. 5th ed. 892. (x) Trye v. Corporation of Gloucester, 14 Beav. 173, 181-2. (y) As to what are "charities," see 43 Eliz. c. 4; Duke, by Br. 568; 16 & 17 Vict. c. 137; 18 & 19 Vict. c. 124, s. 48 ; 23 & 24 Viet. c. 134, s. 8; Williams v. Kershaw, 5 CI. & F. Ill; Attorney- General v. Easttake, 11 Hare, 205, 219-20 ; Dolan v. MacDermot, L. E. 3 Ch. 676. (5297) 212 CONVEYANCE HOW FAB AVOIDED settlement set aside. any idea of benefit retained by the doner, or fraud in- tended against future purchasers. Gifts to private charities or charities created under an Act of Parliament must therefore, it is conceived, in all cases be governed by the rules which are applied to ordinary voluntary conveyances (z). Application When a voluntary settlement is set aside under 27 of purchase- Eliz. c. 4, an important question arises — namely, money when w hether the purchase- money is to be paid to the vendor or to be handed over to the persons entitled under the voluntary settlement. It has always been laid down that a voluntary settle- ment is good between the parties, although void against a purchaser; and it looks, at first sight, as if, in order to carry that principle to its full extent, the purchase- money ought to be applied in making good to the vol- untary settlee what he loses by the land being taken from him. This seems to be what was done in the old case of Leach v. Dene (a), which is the only decision in favour of the volunteer, except Ferrars v. Cherry (b). The authority of this last case was expressly disputed by Lord Hardwicke (c), who said (d): "There is no instance where a voluntary conveyance, if afterwards defeated by sale for valuable consideration, that a sat- isfaction can be demanded against him or his estate, unless for some covenant on which an action or suit might be maintained." And on the strength of there being in that case what he considered such a covenant, he decreed the volunteers entitled to the purchase- money with interest. . Formerly given to the volunteers. Where at least there was a cove- nant to that effect. But not so But in Evelyn v. Templar (e), where there was a now. covenant by the settlor in a post-nuptial settlement much stronger than the common case — viz., that, if he did sell, the money to be raised by the sale should be paid to the trustees, and that he would settle the pur- chase-money to the same uses — Lord Thurlow decided [ * 208] that *the purchaser was not affected by notice of this covenant in the voluntary settlement. In that (z) See Hinton v. Toye, 1 Atk. 465. (a) 1 Ch. Rep. 78. The decree is given in full in Townend v. Toker, L. R. 1 Ch, 461. (J) 2 Vern. 383. (c) In Senhouse v. Earle, Amb. 289. (d) In Williamson v. Codrington, Ves. 516 (e) 2 Bro. C. C. 148. (5298) UNDER 27 ELIZ. c. 4. 213 case the volunteers filed a bill against the purchaser for misapplication of the purchase-money, which he had paid to the vendor, though with notice of the covenant; the bill was dismissed. It cannot, therefore, be said to overrule Lord Hardwicke's dictum quoted above; and yet, as Lord Eldon said (/): "Recollecting the struggle of late against the doctrine upon the construc- tion of these statutes, it seems almost impossible to conceive that, if Courts of Equity had the jurisdiction of laying hold of the money, there would not have been found considerable authority leaving no doubt upon it at this day;" and it seems to be now settled that the Court has no such power (g). In Totvnend v. Toker (h) Sir G. J. Turner, L.J., commenting on Leach v. Dene (i), said: "The latter cases are so much the other way, both in point of decision and of dicta, that we should not, in my opin- ion, be justified in acting in opposition to them. If they are not well founded, it is for the House of Lords, and not for us, to correct them." It may therefore be regarded as settled that a volun- Settlement tary settlement is entirely defeated by the sale for val- wholly de- uable consideration of the same property; and is then feated by nothing more than a piece of waste parchment (k). gai e S . e<1Uen The whole thing is destroyed as soon as the property is sold; but the result is the same as if the voluntary con- veyance had never been made (I), only if there is no covenant in the settlement binding on the settlor (m). The persons entitled under the voluntary settlement have no equity against the proceeds of sale. It must, however, be borne in mind that the statute i, u t displaced invalidates such settlement only to the extent of tbe in- only so far as terest of the mortgagee or purchaser. It leaves all necessary those who were interested under the * volun- [ * 209] *° S ive effect , , i , • . i j i • j • • i • 1 1 to mortgage tary settlement in exactly the same position in wnicn or purchase. they were originally placed when the settlement was executed, except that they are displaced to the extent (/) In Pulvertoft v. Pulvertoft, 18 Ves. 91 ; and see Buckle v. Mitchell, 18 Ves, 100. (g) Daking v. Whimper, 26 Beav. 568 ; Tovmend v. Tolcer, L. E. 1 Ch. 460, 461 ; In re Walhampton Estate, 26 Ch. D. 391. (7j) L. R. 1 Ch. 461. (t) 1 Ch. Rep. 78. fa) Bosher v. Williams, L. R. 20 Eq., per Malins, V. C, 218. (I) Daking v. Whimper, 26 Beav. 568, 570 ; post, pt. vi. ch. i. (m.) Williamson v. Codrington, 1 Ves. 516. (5299) 214 POWERS op revocation: Mortgagee cannot con- solidate securities. to which the mortgage or purchase displaces them (n). So the parties interested under a voluntary settlement are entitled to a charge or lien on the settled property for any permanent improvements made by them during their possession (o). A mortgagee who has a charge on property the sub- ject of a voluntary settlement, and also on other prop- erty, cannot consolidate his two securities so as to throw on the property the subject of the voluntary set- tlement any sum not originally charged thereon (p). Where a voluntary settlement of freeholds, which the settlor subsequently mortgaged, contained a covenant for quiet enjoyment, it was held that the persons claiming under the mortgage were entitled to prove on the covenant against the settlor's estate (q). Securities I Q the same case the subsequent mortgage com- marshalled prised other lands besides those settled, and it was held in favour of that the volunteers might throw the mortgage primarily on the unsettled property (r). volunteer. Section 5: The 5th section (s) enacts that if any person or per- Powers of re- sons make any conveyance, gift, grant, demise, charge, vocation, &c. limitation of use or uses, or assurance of any lands, tenements, or hereditaments, "with any clause, pro- vision, article, or condition of revocation, determina- tion, or alteration, at his or their will or pleasure, of such conveyance," &c, and afterwards " bargain, sell demise, grant, convey, or charge the same lands, tene- ments, or hereditaments, or any part or parcel thereof, to any person or persons, bodies politic or corporate, for money or other good consideration paid or given, the said first conveyance," &c, not by him or them re- voked, &c, according to the power contained in the " said secret conveyance," &c, then the said former [ *210 ] conveyance, &c, as touching those lands *shall be void, frustrate, and of none effect against the pur- chaser or any persons claiming under him. (n) Crolcer v. Martin, 1 Bligh (N.S.) 573 ; Dolphin v. Aylward, L. R. 4 H. L. 499, 500, 504; In re Walhampton Estate, 26 Cb. D. 391. (o) Story, Eq. Jur. 12th ed. vol. 2, ss. 1237, 1239 ; Stepney v. Biddulph, 13 W. R. 576 ; Trevelyan v. White, 1 Beav. 588. (p) In re Walhampton Estate, 26 Ch. D. 391. (?) Hales v. Cox, 1 X. R. 344. (r) See, as to marshalling against volunteers, Dolphin v. Ayl- ward, L. R. 4 H. L. 486, 500-1 ; et post, pt. vi. ch. i. (s) 27 Eliz. c."4 ; Appendix No. II. (5300) WHEN WITHIN 27 ELIZ. C. 4. 215 It must be observed that the effect of the statute is Evidence. to make the existence of a power of revocation " at his or their will or pleasure " evidence of an attempt to de- fraud a subsequent purchaser ; and therefore that, where it is not limited in any respect, a subsequent purchaser upon a sale under the statute need not prove its execution unless he chooses to take under the settlement. The power of revocation may be exerciseable at any p 0W er to be time, or it may be only exerciseable at a future date, or exercised at within a fixed period. an y time - In cases where the power can be exercised at any time, it has been decided that it makes no difference whether the first conveyance, containing a power of re- vocation, was for valuable (t) or meritorious considera- tion (m), or merely voluntary ; the mere fact of the first conveyance containing a power of revocation is a fraud apparent within the statute (v). It was resolved in Standen v. Bullock (w) that where p wer to be a man made a voluntary settlement with a power of re- exercised at a vocation at a future time, as after such feast or after future date. the death of such one, and afterwards before the power began sold the land for valuable consideration, this sale is within the remedy of the statute. For although the statute saith, " the «aid first conveyance not by him re- voked," &c, which seems by the literal sense to be in- tended of a present power of revocation, for no revoca- tion can be made by force of a future power until it comes in esse, yet it was held that the intent of the Act was, that such voluntary conveyance which was originally subject to a power of revocation should not stand against a purchaser bona fide for valuable con- sideration ; and if other construction were made the said Act would serve for little or no purpose, and it would be no difficult matter to evade it. * It is observable that in this case the first [* 211 ] settlement was voluntary, and it is submitted that if it (t) Butter v. Waterhouse, Th. Jo. 94, 3 Keb. 751 ; Hungerford v. Earle, Freem. Ch. 120. On) Cross v. Faustenditch, Cro. Jac. 180. («) Tyre v. Lyttleton, 2 Brown]. 187, 190. (w) 3 Rep. 82 b ; see infra, p. 214, where a translation of this case, reported as Buttock v. Thome in F. Moo. 614, is given in full ; Garth v. Ersfield, J. Bridg. 23 ; case of St. Saviour's, South- wark, Lane, 22. (5301) 216 POWERS OF REVOCATION : had been supported by a valuable consideration it would have been good against the subsequent purchaser until the event happened and the power of revocation came into force (x). If the power can only be exercised within a fixed period, a settlement made after that period cannot on that account be set aside as fraudulent. Extinguish- It was also resolved in Standen v. Bullock (y) that if a ing power of mari having a power of revocation, by a conveyance to a stranger extinguishes his power, with intent to de- fraud a purchaser, and then sells the land for valuable consideration, the purchaser shall enjoy the land ; for as to him the conveyance by which the condition was extinct was void by, the said Act. This principle must of course be confined to cases where the settlement was voluntary and the extinguish- ment of the power was fraudulent or voluntary ; for if such settlement and extinguishment were bona fide, and not voluntary, it would be good against the subsequent purchaser (z) ; and this is shewn by the next passage in Coke, that "The first clause of the Act, by which all fraudulent and covinous conveyances are made void as to purchasers, extends to the clause referring to powers of revocation." This, it is submitted, will also be the case if the set- tlement be for value, but the extinguishment of the power a voluntary one of which the purchaser had notice. assent. Power to It was also said in Tmyne's Case (a) that if A. had revoke with reserved to himself a power of revocation with the assent of B., and afterwards A. bargained and sold the land to another, this bargain and sale is good and with - in the remedy of the said Act, for otherwise the good provision of the Act, by a small addition and evil in- tention, would be defeated. The statute, however, only speaks of powers of rev- {x) 3 Rep. 82 b; Sug. V. & P. 14th ed. 722; Dart, V. & P. 5th ed. 903. (y) 3 Rep. 83 a. (z) See Leigh v. Winter, infra, where the power of revocation was limited by a subsequent agreement. (a) 3 Rep. 82 b. (5302) WHEN WITHIN 27 ELIZ. C. 4. 217 ocation "at his or their will or pleasure," so that where the power is * exercisable with the consent of [ * 212 ] trustees of the grantor's own voluntary nomination, or on a payment of a trifling sum to a third person (b), so as to put it in his power to defeat the whole set- tlement at will, the Act applies (c) ; whereas, if the power of revocation is subject to the bon^ tide consent of a third person or persons it is different (d). Thus, in the old case of Leigh v. Winter (e), Sir F. Leigh v. Leigh conveyed certain manors and tenements to the Winter, use of himself for life, remainder to his son W. Leigh, in tail, with a proviso of revocation if his son should marry without his consent. Afterwards by an in- denture made between him and the grandmother of the said W. Leigh by his mother's side, reciting this proviso and certain considerations given to Sir F. Leigh, it was agreed that Sir F. Leigh should not ex- ercise his power of revocation " without the licence and consent of the Lord Coventrie, Lord Keeper, first had in writing ; " and it was held that this consideration was binding and restrained the power from being exer- cised without that consent. So where (/) Lord Banbury made a voluntary lease Banbury's for ninety-nine years, in trust for raising £6000 for his ^ ase - children, with a power to revoke it with the consent of his lady and three more of her friends, this difference was pointed out on the statute 27 Eliz. c. 4: that if a man reserves such a power with the consent of his own relation, or one that may be supposed to be at his com- mand, it will be fraudulent ; but if it be with the con- sent of others, as here it was of the wife's friends, who cannot be supposed to consent but on very good grounds, there it will not be fraudulent. The power of revocation may also be exerciseable only Poweronly to by will, in which case the settlement will be void only be exercised from the date of the settlor's death as against a sub- y sequent purchaser (g). A power enabling the settlors to revoke the uses of a (b) Griffin v. Stanhope, Cro. Jae. 454. (c) Lavender v. Blakstone, 2 Lev. 146. (d) See Lord Banbury's Case, infra, and Buller v. Waterhouse, 3 Keb. 751. (e) W. Jo. 411. (/) Lord Banbury's Case, Freem. Ch. 8, 9. (g) Chance Powers, vol. 2, 167; Adney v. Field, Amb. 654. (5303) 218 POWERS OF REVOCATION : on same trusts, Power to sell settlement, and the trustees to sell the estate and con- and purchase [ * 213 ] vey it to a purchaser so * as the purchase- other lands money should be paid to the trustees and not the set- tlors, and invested in the purchase of other lands to be settled to the same uses, is not a power of revocation within the statute. So in such a case it was held that a revocation by the settlors, and a conveyance by them and the trustees to a purchaser who paid the money to the settlors and not the trustees, the money not being laid out in the purchase of other lands, was not a rev- ocation under the settlement nor such a sale as would avoid the settlement, which was in consideration of marriage (h). And so, also, a grant of an annuity with a power of revocation, provided another annuity as good was settled, has been held not within the statute ; it was said by Lord Hobart, that if it were a power to revoke on the payment of £20 only, it would be good (i). Revocation on payment of trifling sum. The last proposition, however, is opposed to the au- thority of Griffin v. Stanhope (k), where the Court held a condition in a lease, that it should be void on a jointure being made, was not a power of revocation within the statute, and took this difference: that where leases are made with a proviso " that if the lessor pay 10s. that then the lease shall be void," such lease shall be void as to the purchaser, because it is apparent that the sum to be paid is not of the value of the land; but the pay- ment must be a fair equivalent, and then it will stand against a purchaser. °if ly a , ,' ' pur " Even a settlement with an express power of revocation avoid"; cau cannot be avoided except by a person properly qualified under the statute (I); but a revocable deed has been held void against a subsequent judgment creditor (m). and only so far as neces- sary. Even a voluntary deed, with power of revocation, is only void against a subsequent purchaser so far as it breaks in upon his rights, so that a subsequent lease to another person (n), or a mortgage, is only a revocation pro tanto (o). (h) Doe d. Willis v. Martin, 4 T. R. 39. (i) Lord Banbury's Case, Freem. Ch. 8. 9. (k) Cro. Jac. 454. (l) Parker v. Serjeant, Finch, 146, 148; post, pp. 217 et sen. (m) Garth v. Ersfield, J. Bridg. 22; Tarback v. Marbury, 2 Vern. 510, 1 Eq. Ca. Ah. 148; but see post, pp. 224 et sen.; and Beavan v. Sari of Oxford, 6D.M.& G. 492. (n) Coke v. Bullock, Cro. Jac. 49. (o) Perkins\. Walker, 1 Vern. 97; Thornev, Thome, 1 Vern. 141. (5304) WHEN WITHIN 27 ELIZ. C i. 219 *But it seems to have been decided in an old [* 214 ] case (p)that where land was conveyed voluntarily with power of revocation, and then sold to a purchaser for value, subject to a condition (which being afterwards broken the purchaser's interest ceased), the interest of the volunteers was not restored after the purchaser's in- terest had ceased by the condition being broken. A power to charge a sum certain is not a power of re- vocation within the statute (q); but a power to mort- gage to any extent would doubtless be so considered (r), and a power to lease for any term has been held to be a power of revocation at will (s). It may be useful to give here a statement of the old Bullock v. case of Bullock v. Thome (t), in which many points Tlwme. on this subject were discussed. T. B., being seised in fee or fee tail in 28 Eliz., bar- gained and sold and suffered a common recovery, the uses being declared by deed to use of himself for life, remainder to A. and B. (the lessors of the plaintiffs) for ten years, the remainder to T. B. in tail male, with a power of revocation at the will of T. B. by a declara- tion to be made by him in the presence of six witnesses, whereupon the recovery previously suffered should enure to the use of T. B. in fee; in 31 Eliz., T. B. sold the land to E. Standen, in fee, for £4000. In 36 Eliz., T. B. died, and A. B. entered and made a lease to the plaintiffs, who brought ejectment against the defendant, claiming under Standen, the purchaser. The question was, whether the first conveyance, with power of revocation, was void against Standen. It was objected by the plaintiffs, first, that the first and second conveyances were made by different persons, but this was overruled as a mere technical objection (u); and the second objection was (T. B. having, between the p ower sus . dates of the first recovery and the sale, made a lease of pended by- part of the lands and levied a fine), that by this lease lease, the power of revocation was *suspended, and [ * 215] (p) Dame Ever's Case, 2 Roll. Rep. 34-5. (q) Jenkins v. Keymis, 1 Lev. 150, Hard. 395. (r) See Tarback v. Marbury, 2 Vern. 511; which, however, was a decision on the 13 Eliz. c. 5. («) Lavender v. Blakstone, 2 Lev. 146. (t) F. Moo. 615. (u) See post, p. 242. (5305) 220 POWERS OF REVOCATION : by the fine quite extinct, and that as he could not have exercised it then, it was not within the statute. But the whole Court held this contrary to the words and intention of the Act— to the words mentioning, first a conveyance, &c, with power of revocation ; secondly, a sale for money, &c. ; and thirdly, such conveyance, not being revoked according to the power, should be void. The Court said: The which words agree with the case in question in all three things: the one, that here is a conveyance with power of revocation mentioned in the deed ; the second, that the conveyance is not revoked according to the power ; the third, that he who made the conveyance had bargained and sold the land after- wards to another for money; and therefore, according to the letter of the statute, the case in question, which had all the positions within the statute, ought also to have the conclusion of the statute, i. e., that the convey- ance was void against the purchaser. The intent of this statute is to be expounded against fraud and to suppress fraud, and to maintain just dealing. It would be a fraud for T. B. to take £4000 of a pur ■ chaser, and yet that the purchaser should lose the land through a former conveyance voluntarily made by T. B. for the advancement of his name and issue, and the which, by the agreement expressed in the deed, ought to be revoked by T. B. himself ; wherefore to maintain that conveyance is against the intent of the statute. And they also thought that the extinguishment of the power of revocation after the sale will not alter the op- eration of the statute ; because when the power is de- termined then it is impossible that the conveyance should be revoked according to the power, and if it cannot be, then the statute makes the conveyance void against the purchaser; for it says, if any one make conveyance with power of revocation, &c, the conveyance shall be void; and to construe the statute that the conveyance would be good against the purchaser if the power of revoca- tion was determined before the purchase, would be to make nourishment and not suppression for fraud. Be- cause then the vendor could make a secret release of the powers, or secret feoffment, of which the purchaser could not have notice, and yet he would be able to shew [ * 216] to the *purchaser the conveyance, mentioning the power of revocation by which he is encouraged to buy the land, and will be deceived of the land and money both by that secret release or feoffment, which is against (5306) WHEN WITHIN 27 EI^IZ. C. 4. 221 « all equity and reason ; and therefore they all thought that if the power of revocation is mentioned in the deed of conveyance, let it be determined or not by that mesne act, yet the conveyance will be void against the pur- chaser. Walmesley, J., was clearly of opinion that a lease for years made by one who had power of revoca- tion does not suspend the power if it were created by a use, but that he could revoke, subject to the lease; aliter as to a condition annexed to an estate in possession. Wherefore he said that in the principal case the lease is no impediment, but that T. B. could have revoked as to the reversion, and cited a case adjudged in the King's Bench, temp. Wray, C. J., that where one makes a con- veyance with power (by way of use) to revoke after a day to come, and before the day conveys to a purchaser, that conveyance is void against the purchaser, aDd yet at the time of the purchase the vendor could not have revoked; but the reason was, that in the former convey- ance there was a power of revocation mentioned, and it was not revoked according to the power, and the statute is to be intended against fraud to the maintaining of purchases ; but there the conveyance will not be void against the purchaser before the time limited, but after that time it shall be wholly void, because subject to re- vocation at that time by express agreement. And they also all agreed that if a person had a power of revoca- tion entire, as in the principal case, and extinguished or suspended the power in part, he could revoke for the residue if it were by way of use ; not so of a condition annexed to the land. And they further agreed that the granting of a lease, though confined by fine levied, only suspends a power to revoke a use during the term, and does not extinguish it. 20 STAT. OF ELIZ. (5307) [* 217 ] *CHAPTEE II. WHAT PERSONS ARE ENTITLED TO RELIEF AS PUR- CHASERS WITHIN 27 ELIZ. C. 4. 27 Eliz. c. 4, The statute 27 Eliz. c. 4, s. 2, declares "That all and makes void every conveyance, grant, charge, &c, had or made for conveyances ^ ne j n { en t anc j f purpose to defraud and deceive such to deceive r . r ,. ,... , , subsequent person or persons, bodies politic or corporate, as have purchasers of purchased or shall afterwards purchase, in fee simple, the same lands. fee tail for life, lives, or years, the same lands, tene- ments, and hereditaments, or any part or parcel thereof so formerly conveyed, or to defraud and deceive such as have or shall purchase any rent, profit, or commod- ity in or out of the same or any part thereof, shall be deemed and taken only as against that person, &c, his and their heirs, &c, and against all aDd every other person and persons lawfully having or claiming by, from, or under them or any of them which have pur- chased, or shall hereafter so purchase for money or other good consideration, the same lands, &c, to be ut- terly void, frustrate, and of none effect, any pretence, colour, feigned consideration, or expressing of any use or uses to the contrary notwithstanding." The word " purchase," as used in the statute, of course refers to cases of selling and purchasing in the ordinary and vulgar acceptation of the word, and not in the technical sense of any person who obtains land otherwise than by descent (v). Who are en- The statute refers vnly to purchasers for money or titled to the other good consideration ; the question of indebtedness benefit of the r not is immaterial (iv) ; in order to acquire a right * to the protection of the statute the purchaser must be qualified in a certain way. Although, if there is any valuable consideration for a settlement, the quantum [* 218 ] of such a consideration is of no consequence *un- der the statute (x-) so long as there is anything in the statue How to be qualified. v) See Ex parte Hilhnan, 10 Ch. D. 625. to) Lord Townsend v. Windham, 2 Ves. 10, ante, pp. 37 et seq. .r) Price v. Jenkins, 5 Ch. D. 621. WHO ARE PURCHASERS. 223 shape of consideration which can be called value (y) ; still it does not follow because a man has paid a sum of money, however small, for an estate, or for the chance of being able to get it from the prior volunteer, that he is therefore a purchaser. In Upton v. Basset (z) "it was resolved that no pur- Upton v. chaser should avoid a precedent conveyance made by Basscti. fraud and covin but he who is a purchaser for money or other valuable consideration." Consideration of j Te must ^ a blood, natural affection, or the like, will not do (a) ; purchaser lor and it was also agreed (b) that the statute would not valuable con- help a purchaser unless he came to the land, not only sideratien. on valuable consideration, but also " lawfully and with- L aw ft,ii v and out fraud or deceit." The principle thus laid down has bona fide, been ever since adhered to, and it seems that in order to bntitle a man to the privileges of "a purchaser" un- der this statute the price he paid must not be so inade- quate as to induce the belief that the sale was not bona fide, but was a mere contrivance to get rid of the first . settlement and make another, which was, in truth, also colourable voluntary ; for if it is merely colourable it will not purchase no stand (c). good. If it is shewn that the consideration stated to have Purchase- been paid was not really and bona fide paid, or was af- m °ney or terwards returned, such a sale will not be allowed to ™^„ff^"„ t • 1,11 / money musi override a prior conveyance, although voluntary (d). be really But the vendor's giving back part of the purchase- paid. money to the purchaser's family does not invalidate the sale, for that might have been altered (e). Ho where the estate is conveyed as security for money to be then afterwards advanced, it must be proved that money has actually been advanced on the mortgage (/) ; and evi- (y) Bayspoole v. Collins, L. E. 6 Ch. 232 ; In re Foster and Lister, 6 Ch. D. 89. (z) 3 Rep. 83 a ; ante, p. 188. (a) 3 Rep. 83 a ; Dame Burg's Case, F. Moo. 602, 603 ; Lessee of Bonny v. Griffith, Hayes, 115. (6) In Nedham v. Beaumont, cited 3 Rep. 83 b. (c) Doe v. Routledge, 2 Cowp. 705, 712 ; et ante, p. 189 ; Bulloch v. Sadlier, Amb. 764 ; Doe v. James, 16 East, 212 ; Hill v. Bishop of Exeter, 2 Taunt. 69 ; Doe v. Rowe, 4 Bicg. N. C. 737 ; Persse v. Persse, 7 CI. & F. 321 ; Metcalfe v. Pulvertoft, 1 Ves. & B. 180, 184 ; Doe v. Manning, 9 East, 59 ; Doe v. Martyr, 1 B. & P. N. R. 332 ; Dolphin v. Aylward, L. R. 4 H. L. 486, 499 ; Rosher v. Wil Hams, L. R. 20 Eq. 218. (d) Humphreys v. Pensam, 1 My. & Cr. 580 ; Roberts v. Williams, 4 Hare, 130. (e) Per Lord Ellenborough, in Doe v. James, 16 East, 214. (/) Doe v. Webber, 1 Ad. & E. 733, 740. (5309) 224 WHO ARE PURCHASERS Mortgagee. Purchaser of equitable estate. Equitable mortgagee. [ * 219] denceof this cannot be given by * the mortga- gor after he has executed the voluntary settlement, for he cannot derogate from the estate he has conveyed (g). So if the valuable consideration be not expressed in the deed, evidence is admissible to shew that there was consideration, though not appearing on Ihe face of the deed (h); but such evidence must be to the utmost ex- tent satisfactory and conclusive (i). On the other hand, a settlement, though voluntary on the face of it and and at firs'; void against a pur- chaser for value, may yet become valid by force of sub- sequent events (k). A purchaser in the sense in which the word is used in this statute is one who gives money or other valua- ble consideration in order to have the land (I). There is, of course, no doubt that a mortgagee is a purchaser pro tanto within this statute (m), but a mortgage to secure moneys to be then afterwards ad- vanced must be supported by proof of an actual advance to the mortgagor, whose subsequent admission will not suffice (n). As a purchaser has in equity- the same rights under this statute as at law (o), a purchaser of an equitable estate (p), or a person who has, by a con- tract to purchase, acquired an equitable estate (q), or an equitable mortgagee, by deposit of title deeds (r), is a purchaser. An equitable mortgagee may in equity establish bis title by means of parol evidence, or writ- ten documents coupled with parol evidence (s); but he (ft) Doe v. Webber, 1 Ad. & E. 733 ; and~see~Lalor v. LalorTi L. R. Ir. 351, S. C. 678. (h) Townend v. Taker. L. R. 1 Ch. 459. (0 Lcvyv. Crei ghi on, 22 W. R. 605. (k) Clarke v. Willatt, L. R. 7 Ex. 313 ; Judd v. Green, 45 L. J. (N.S.) Ch. 108 ; post, pp. 314 et seq. (Z) Beavan v. The Earl of Oxford, 6 De G. M. & G. at p. 517. (m) Randy. Carlwright, 1 Ch. Ca. 59; Cormick v..Trapaud, 6 Dow, 60 ; Senhouse v. Earle, Ami). 289 ; Doe v. Webber 1 Ad & E. 733 , Dolphin v. Ayheard, L. R. 4 H. L. 486, 499, 504 : Crack- nail v. Janson, 11 Ch. D. 1. (n)Doev Webber, 1 Ad. & E. 733 ; Myers v. Duke of Leinster, 7 Ir. Eq. 159. ' (o) Smith v. Garland, 2 Mer. 123, 127. (p) Buckle v. Mitchell, 18 Ves. 100 ; ante, p 193 (q) Barton v. Vanhnjihuyscn, 11 Hare, 126, 130. But see Eol- ford v. Rolford, 1 Ch. Ca. 217. (r) Lister v. Turner. 5 Hare, 281 Eq. 92. (s) Ede v. Enowles, 2 Y. & C. Ch. 172. (5310) Briggs v. Jones, L. R. 10 WITHIN 27 ELIZ. c. 4. 225 cannot, of course, be regarded as a purchaser in an ac- Not at law. tion *at law, though trover can be maintained [ * 220] Trover, for the deeds (t); and, of course, a person who pur- Purchase chases in trust for, and with the money of, another per- onmcTi-o"^ son is a purchaser (u). trust for other person. In Shaiv v. Standish (v) the Court inclined to think Mining that an agreement by certain persons with the owner of agreement. land to enter into partnership with him, and t» dig and work mines, and to bear profit and loss in certain pro- portions, constituted them purchasers of their interest in the land under the agreement as against a prior voluntary settlement ; but eventually a decree was made by consent establishing the articles of co-partner- ship. It is not necessary under the statute that any money Release of should be paid to make a man a purchaser; the bona adverse fide release of an adverse claim to a litigated estate claims a without any money payment is a purchase. "There P urcnase - can be no doubt," said Sir J. Mansfield in Hill v. Bishop of Exeter (w), "in general, that the giving up a right without fraud is a valuable consideration. The re-lessor parts with that for which the other may very reasonably give money." That case was thus : A. was owner in fee of an advcwson, except the next presenta- tion, which belonged to B. under the same title. A. made a voluntary conveyance of his interest, and on the next vacancy C. claimed the whole advowson by an adverse title, and by way of compromise C. released his rights to A. and B. according to their respective inter- ests (so that A. had the advowson in fee, except the presentation on the then vacancy,- which B. had), and then, in consideration of this, A. conveyed the then next presentation to C. ; and it was held that this was a sale for value, and paramount to A.'s prior voluntary gift. A lebsee at a rack rent (x), with fine or premium L essee s &c paid (y), or to secure a sum of money, is a purchaser purchasers. within the statute (z), but not a. lessee without fine or (t) Kerrison v. Dorrien, 9 Bing. 76. (u) Poulton v. Wiseman, Noy, 105 ; and see Watkins v. Steevens, Nels. 160 ; Doe v. Leuis, 11 C. B. 1035. (v) 2 Vern. 326. (w) 2 Taunt. 69. \x) Goodright v. Moses, 2 W. Bl. 1019 ; Ashlon v. Breiland, 9 Mod. 59 ; Shaw v. Slandish, 2 Vern. 327. (y) Cross v. Faustenditch, Cro. Jac. 180 ; and Hinde v. Collins, there cited, p. 181. (a) Naylor v. Baldwin, 1 Ch. Eep. 69. (5311) 226 WHO ARE PURCHASERS Surety. Assignee of lease. Price v. Jenkins. rent (a). Lessees are, in fact, within the very words [ * 221] of the statute, which mentions purchases *"for live, lives, or years." It seems that a surety to whom a lease or conveyance of land has been made as a security and indemnity to him is a purchaser (6), for indemnity is a valuable consideration (c). The assignee of a lease is a purchaser within the statute (d). This point seems involved in the decision in Price v. Jenkins (e), for, if an assignment of a lease is always for value under the statute, an assignee of a lease must be a purchaser within it. In that case leaseholds were assigned by A. to trustees upon certain trusts after payment of out-goings. The assignment contained no covenant by the trustees to pay the rent or to perform the covenants of the lease. A. afterwards contracted to sell them to the plaintiff. It was held by the Court of Appeal that the assignment of leaseholds was for value, and must prevail against the subsequent sale, because the trustees came under a responsibility for payment of rent and performance of the covenants of the lease; it might be such a responsibility that a lessee might be actually willing to pay money to get rid of. This was followed in Ex parte Doble (/) by Bacon, V.C., who laid down the principle that, if no fraud be proved, the assignment of a lease is always for value, whether it contains a covenant for assign- ment or not. In In re Ridler (g), however, the effect of the decision in Price v. Jenkins (e) seems to have been narrowed. Cotton, L.J., there pointed out that Price v. Jenkins (e) really only decided that the grantee's undertaking the liability for rent was suffi- cient to support a settlement, under 27 Eliz. c. 4, which was open to no other objection but that of being voluntary. Settlements or other instruments which are volun- tary in their creation may, under certain circumstances, (a) Upton v. Basset, Cro. Eliz. 444. (b) Scot v. Bell, 2 Lev. 70 ; see also Beverley v. Oatacre, 2 Eoll. 305 : White v. Thornborough, Prec. Ch. 425. (c) Worsley v. Demattos, 1 Burr. 4G7, 474, 482. (d) (lolville v. Parker, Cro. Jac. 158. (e) 5 Ch. D. 619. (/) 26 "W. R. 407; see comments of Hall, V.C., in Trowell v. S'henton, 8 Ch. D. 321. (g) 22 Ch. D. 82; and see post, p. 258. (5312) WITHIN 27 ELIZ. c. 4. , 227 become valuable by subsequent transactions; as where Persons in- a marriage is contracted on the faith of a provision for terested the husband or wife, secured by what was, at the under volun- time of its execution, a voluntary settlement (h); or ,^ t to * where a voluntary grantee sells to a bona [ * 222 J which ex fide purchaser (t). It can hardly, however, be argued post facto that this principle can be applied so as to make the consider*- grantees purchasers within the meaning of the statute, no t purchas- and to avoid a prior voluntary deed; for if a man ers. makes a voluntary settlement, and afterwards another voluntary settlement of the same land, no subsequent considerations can make the second prevail against the first (k). The reason of this is that when the settlor made the second settlement he had no estate or interest in the property which he could convey to a volunteer, but only to a purchaser (I), and ex post facto conside- rations can only make good that which was merely voidable, and never that which was simply void, in its creation (m). The consideration of marriage is sufficient, as we Marriage have seen, to prevent a conveyance from being volun- opnsidera- tary under the statute, and -it also is sufficient to make- as Tj^haao,. void a prior voluntary or fraudulent deed (n). So where (o) J. W. made a post-nuptial settlement Douglasse v. of land on himself for life, remainder to his first and Ward. other sons in tail, and then his wife died without issue, and he, before his second marriage, settled the same land on his intended wife for her jointure, and died, leaving her and one son by her him surviving, it was held that she was entitled to the lands for her jointure in preference to her son, who claimed as tenant in tail under the first settlement; and "the Court declared Jointress the marriage was a good consideration to make the P urch aser. feme a purchaser," and decreed the first settlement to be set aside. (h) Prodgers v. Langham, 1 Sid. 133; ante, p. 219; post, pp. 316. 318. (j) George v. Milbarike, 9 Ves. 190; post, p. 322. (k) Havering v. Clavering, 2 Vern. 473. (0 Doe v. Susham, 17 Q. B. 724; post, p. 326. But see Beat- son v. Beatson, 12 Sim. 281. (m) See Scott v. Scott, 4 H. L. C. 1065. («) Watkins v. Steevens, Nels. 160; Douglasse v. Ward, 1 Ch. Ca. 99; Mathews v. Jones, 2 Anst. 516; Reeve's Case, 2 Vent. 363; Parker v. Serjeant, Finch, 146, 148; post, p. 235; Croker v. Mar- tin, 1 BH. N. R. 573, 588; Sug. L. of P. 148; Doe v. Lewis, 11 C. B. ^035, 1057; but see Allen v. Arme, 1 Vern. 365. (o) Douglasse v. Ward, ubi sup. (5313) 228. ARE JUDGMENT CREDITORS Husband purchaser by conveyance to him in fee. Children purchasers. Kekewich v. Manning. The husband is equally a purchaser of his interest where the conveyance in consideration of marriage is [ * 223] to him in fee (p); and * where the settlement is on the wife and children the children are purchasers equally with the wife (q) ; for the consideration runs through all the limitations to husband, wife, and issue (r). In cases like Kekewich v. Manning (s), where there was a settlement on a second marriage of the same property that had been settled on the first marriage and the only claimants under the first marri- age were collaterals, the voluntary limitations in the first settlement would, if the property were an interest in land (which there it was not), be void as against the second. Husband was It is different where a husband obtained an estate by not purchaser the marriage, not by virtue of any settlement, but of what came mere iy by the marriage itself; for it seems that a hus- jure manti. k an( j was QQ ^ a p Urc haser of that which came to him jure mariti (t). In such a case, it is conceived, the avoidance of a prior settlement would have been a fraud on marital rights rather than a conveyance avoided by the 27 Eliz. c. 4 (tt). By the Married Women's Property Act, 1882 (v), this marital right of the husband has been destroyed; so that any man who marries after 1882 acquires no es- tate whatever by virtue of marriage itself (iv). Cestui que trust under post-nuptial settlement, when a pur- chaser. Of course, a person claiming under a post nuptial settlement is not a purchaser within the statute (x) on account of the consideration of marriage; and a settle- ment on the re-celebration in England of a Scotch mar- riage is voluntary (y). But a post-nuptial settlement in pursuance of an ante-nuptial agreement in writ- (p) 0' Gorman v. Comyn, 2 Sch. & Lef. 147-8. (q) Carpenter v. Carpenter, 1 Vern. 440; Rancliffe v. Parkyns, 6 Dow. 149, 209; post, p. 336. (r) Nairn v. Prowse, 6 Ves. 752; post, p. 341. (a) 1 D. M. & G. 176. (t) Doe d. Richards v. Lewis, 11 C. E. 1035-1057; Collins v. Burton, 5 Jur. (N.S. ) 952, S. C., reversed on other points, 4 D. G. & J. 612. But see Lance v. Norman, 2 Rep. Ch. [79] 41. (u) See Lance v. Norman, 2 Rep. Ch. [79] 41; Strathmore v. Bowes, 1 Ves. Jun. 22; 1 Wh. & Tu. L. C. 6th ed. 471. (v) 45 & 46 Vict. c. 75, ss. 2, 5, 25. (w) See Griffiths, 5th. ed. 60, 67, 68, 69. (x) See post, pt. v. ch. v. (y) Ex parte Hall, 1 V. & B. 112; see Adams v. Adams, 8- Ir. Ch. Rep. 41; Dobbyn v. Adams, 7 Ir. Ch. Rep. 193. (5314) WITHIN 27 ELIZ. c. '4? 229 ing(z) or, under certain circumstances, formerly of a parol agreement before marriage (a), or in consideration of an additional * portion after marriage, or of a [* 224] bargain between husband and wife (b), is deemed made for valuable consideration (c). In the two old cases of Girling v. Lowther (d) and Are judg- Garth v. Ersfteld (e) it was held that a judgment cred- me "*, itor was a purchaser within this statute. These cases '•purchasers" were commented on by Lord Hatherley (then Vice- within the Chancellor Sir W. P. Wood) in Barton v. Vanheythuy- statute. sen (/ ), and cited by him as authorities to decide the point. If these two cases can be said to establish that a Contrary judgment creditor is a purchaser within the statute, decisions. they are directly opposed to a case decided about the same time, in which there was a voluntary settlement, and subsequent lessees, and also judgment creditors; the settlement was held void against the lessees but good against the judgment debts (g). The case is re- ported as if it had been a question of creditors, but lessees have always been considered purchasers, and the case is only intelligible on the assumption that it was decided on 27 Eliz. c. 4, though neither statute is mentioned. The view that judgment creditors are purchasers within the meaning of the statute was overruled by the unanimous opinion of Lord Chancellor Lord Cranworth and Lords Justices Knight Bruce and Turner, in Bea- van v. Earl of Oxford (h). The Lord Chancellor said Eevan vt the question was, whether judgment creditors were pur- /w,Jj chasers within the meaning of the statute of Elizabeth; in other words, was a judgment creditor a person who, in the language of the Act, had purchased any part of (z) Post, pt. v. ch. v. ; Dart, V. & P. 5th eel. 894, 895. (a) Post, pt. v. ch. v. ; but see Crossly v. Elsworthy, L. E. 12 Eq. 164; Trowell v. Shenton, 8 Ch. D. 318. (b) Teasdale v. Braithwaite, 5 Ch. D. 630; In re Foster and Lis- ter, 6 Ch. D. S7; Shurmur v. Sedgwick, 24 Ch. D. 597; post, pp. 289 et seq. (c) Post, pp. 281 et seq. {d) 2 Rep. Ch. 136 [262]. But see Naylor v. Baldwin, 1 Rep. Ch. 69 [130]. (e) Sir J. Bridg. 22. (/) 11 Hare, 126. (ff) Naylor v. Baldwin, 1 Rep. Ch. 69 [130]. (ft) 6 De G. M. & G. 492. This case has been followed in Upper Canada in Gillespie v. Van Egmont, 6 Chy. 553. (5315) 230 ARE JUDGMENT CREDITORS the lands comprised in the settlement, or " some rent, profit, or commodity in or out of the same " ? " Inde- pendently of any authority," said his Lordship, "I con- fess I should have thought the proposition hardly argu- able that a person who recovers judgment is a purchas- er. A purchaser, in the sensn in which the word is used in the statute, is one who gives money or other [* 225] valuable consideration in order *to have the land. The person who recovers a judgment may in- deed eventually get the land, because under the Statute of Westminster he may take the land in execution, and therefore he is said to have, even independently of the last statute, a lien on the land; but it is not by any pur- chase, but by virtue of the right which the law gives him." In support of this, his Lordship cited the case Brace v. of Brace v. Duchess of Marlborough (»), in which the Ducliessof second rule laid down is, "that if a judgment creditor, Marlborough. or creditor by statute or recognizance, brings in the Judgment nrs t mortgage, he shall not tack or unite this to his tecked°to b a judgment, &c, and thereby gain a preference; for one mortgage; cannot call a judgment, &c, creditor a purchaser, nor for it is not a has such creditor any right to the land; he has neither purchase. j us i n re nor a ) 3 Hare, 416. (2) 1 Ph. 728. (r) Extended to Ireland by 3 & 4 Viet. c. 105. (si That is, "not as a trustee" Arnold v. The Mayor of Grave- send, 25 L. J. Ch. 530. (5317) 232 ARE JUDGMENT CREDITORS debtor would, in making such a charge, be committing an act which the construction of another statute (t) de- clares to be a fraud (u). [ * 227 ] . *An opposite conclusion was indeed come to by Lord Campbell and the Court of Q. B. in Watts v. Porter (v), dissentiente Sir W. Erie; but the actual de- cision in that case was on the 14th section (w) of the statute (x), which relates to stocks and shares, and, so far at least as it professes to govern the construction of the 13th section, it has been distinctly overruled (y). The statute 27 & 28 Vict. c. 112, does not appear to have altered the position of the judgment creditor in this respect. The judgment under it does not affect the land (z) of the debtor (a) until actually delivered in execution by virtue of a writ of elegit or other lawful authority. At the time that judgment takes effect, the land, as there denned, must be "the land of the debtor." Judgment creditor not a purchaser. It must therefore be taken as settled that a judgment creditor is not a purchaser within the meaning of the statute 27 Eliz. c. 4, and that the statutes 1 & 2 Vict. c. 110, s. 13, and 27 & 28 Vict. c. 112, have not altered his position in this respect (b). The most plausible argument in favour of the judg- ment creditor is to suppose his judgment founded on (0 27 Eliz. e. 4. (u) Whitworthr. Gaugain, 3 flare, 416, S. C. 1 Ph. 728; Beavenv. Earl of Oxford, 6 De G. M. & G. 492-521; Kinderley v. Jervis, 22 Beav. l;and Sir W. Earl's judgment in Watts v. Porter, 3 E. & B. 758, in which however, the majority of the judges decided the opposite; but see Pickering v. The Ilfracombe Railway Co., Ir. E. 3 C. P. 235. (») 3 E. & B. 743. (w>) The current of decision is very strongly against Watts v. Porter, even on this section ; see Brcarclif v. Dorrington, 4 De G. & Sm. 122; Dunster v. Glengall, 6 De G. M. & G. 532; Langton v. Horton, 1 Hare, 549; Johnson v. Holdsworlh, 1 Sm. (N.S.") 106; Hawkitisv. Gathercole, 1 Sim. (N.S) 63, 74; and see Pickering v. The Iifracombe Railway Co., L. R, 3 C. P. 235 {x) 1 & 2 Vict. c. 110. (y) By L.C. and L.JJ. in Bcaranx. Ear? of Oxford, 6 De G. M. & G. 492, particularly 524 et seq. and 532; and in Kinderlv v Jervis, 22 Beav. 28 et seq. (z) Section 2. ( a ) Section 4. (ft) See also Dolphin v. Aylward, L. R. 4 H. L.486, 500: Evans v Evans, 2 Ir. Ch. Rep. 242; Burgh v. Francis, 1 Eq. C. Ab 320 pi 1; Finch Winchilsea, 1 P. Wins. 277; Brearcliff v. Dorrington, 4 De G. & Sm. 122, followed by Dunster v. Glengall, 3 Ir. Ch Rep 47; Furyv. Smith, 1 Hud. & Br. (Ir. Rep.) 735, Sue;. V. & P 10th ed. vol. 3, 362; M'Aaley v. Clarendon,. 8 Ir. Ch. Rep. 568- Ben- ham v. Keane, 1 J. & H. 685, 698. (5318) WITHIN 27 ELIZ. c. 4? 23.'> contract and not to be the result of a proceeding in in- Where vitum; and this no doubt may be the truth of the case judgment where the judgment is voluntarily confessed; for the obtained by creditor may, in consideration of the confession of judg- '° ment, have agreed to forbear taking more active steps for the recovery of his debt, and may even have made an advance on the security of it. "But," said Sir James "Wigram, V.C., "admitting that view to be cor- rect, how does it alter the case? ^Yhat was the con- tract? It was a general contract for a judgment and the *fruits of a judgment, and the original [ * 228 ] question therefore, — what right does a judgment con- fer? — remains untouched" (c); so that a contract bind- Any contract ing property for valuable consideration, though equit- for value able only, will take precedence over a subsequent judg- defeats ment, whatever may be the consideration for it, and fndamente whether obtained in invitum or by confession (d). It makes no difference that the judgment creditor Possession has acquired the legal seisin and possession of the land under elegit under an eligit without notice of the voluntary deed ( e). wlt hout • notice makes no cliffcrcncG In Dolphin v. Aylward (/), the debtor in 1802 sub- j) j n ^j n v mitted to two judgments in favour of his two sisters. Aijlward. In 1809 he made a voluntary settlement of real estate, subject to these two judgment debts, reserving to him- self a life estate. In 1818 and 1819 he mortgaged the same estates. Subsequently to this, he confessed a judgment debt, the title to which became vested in the appellant, Dolphin. One of these two prior judgments was afterwards paid off by the settlor. The rights of the last judgment creditor formed the main question. Lord Westbury pointed out that the mortgages were charges upon the entire estate conveyed by the settlor by the deed of 1809, and that the voluntary settlement of ,1809 took effect only on the property remaining sub- ject to those two mortgages, and subject, of course, to the prior judgments. (c) Wiiworih v. Gauqain, 3 Hare, 428, S. C. 1 Ph. 718. As to judgments being a subject of contract, see Croft v. Lumley, 6 H. L. C. 672; Doe v. Carter, 8 T. E. 300. (d) Per Lord St. Leonards, in AVbott v. Straiten, 3 J. & Lat. 603, 614. (e) WMtworth v. Gaugain, 3 Hare, 416, S. C. 1 Ph. 728. (/) L. E. 4 H. L. 486; and see Bales v. Cox, 1 N. E. 344. (5319) 234 WHO ARE PURCHASERS Lord Hatherly, L.C., explained the position of a judg- ment creditor as follows: — "It is quite settled that a judgment creditor can take no interest whatever, either legal or equitable, beyond what he acquires from the debtor; such an interest, in fact, as the debtor himself could give, and no other (g). Therefore, finding what is due on his judgment debt, he proceeds by elegit to enforce its recovery, and he takes the interest of his debtor in exactly the plight in which he finds it." [ * 229] *"He found it in this condition, that the set- tlor had conveyed the estates by way of voluntary set- tlement, reserving to himself only a life interest. As regards the judgment creditor, he had only the life in- terest of his debtor to look to, and could claim no part or share whatever in the reversion of the estate, which was vested under the voluntary settlement." But judg- But in a case in Ireland (h), where a judgment and merit relates a voluntary (creditor's) deed were both registered on back against ^g same ( j a y ; priority was given to the judgment, as relating back to the first day of the preceding term, the volunteers not being purchasers as against whom the re- lation back is taken away by the Statute of Frauds (i). American In America (where the statute 27 Eliz. c. 4, has been law the same adopted) it has been decided, on the same principle, that a purchaser at a sheriff's sale, under a judgment and execution against the grantor of a voluntary deed, is not a purchaser as against the volunteers (k) ; in such a case of involuntary alienation by the settlor, the pre- sumption of a fraudulent intention on his part cannot arise. as to judg nient creditors. Trustees of creditors' deed on trust to sell whether purchasers. Brown v. Carter. A conveyance by a man to trustees to sell for the ben- efit of creditors will, it seems, sometimes constitute the trustees purchasers within the meaning of the statute. In Brown v. Garter (I) a son, "W. G., tenant in tail in remainder, joined his father, tenant for life, in a recovery for the purpose of raising £3000 for the father and re- settling the estate, the son, W. G., taking back only an ( inasmuch as the conveyance was (it was . expressed in general words, and purported to convey argued) not a all the real and personal estate of the debtor without sale of the ■ "same (n) Leuliener v. Freeman, Freem. Ch. 236; Trenchard v. Wanley, lands," &c. 2 P. W. 167; M'Cormick v. Grogan, L. E. 4 H. L 82 97 (o) 15 Beav. 408. (p) 5 Ves. 862. (q) 11 Hare, 126, 131-2. (5322) Barton v. Vanheythuy- sen. WITHIN 27 EL1Z. c. 4. 237 particularizing the estate which was subject to .the vol- untary settlement, such estate was not intended to, and did not, pass ; and that the 2nd section of the statute 27 Eliz. c. 4, restricts the operation of the statute to cases in which the purchaser for valuable consideration takes " the same lands, tenements, or hereditaments." It was said that persons taking under a conveyance by such general words could not be said to be purchasers of the " same" estate, which under the * cir- [* 232 ] cumstances, and in the absence of any precise expres- sion to that effect, it was not reasonable to suppose was intended by the grantor to be comprised. Lord Hath- erry (then Vice-Chancellor Sir W. P. Wood) said : He hel( j that " The fallacy in this argument consists in assuming the general that the first objection has been sustained, and in re- mortgagees garding the H. estate as not in truth the property of R. t0 sec " re - E. V." (the debtor), " which, as between himself and a debtwere subsequent purchaser, I have held it to have been. I purchasers, am of the opinion that R. E. V. had clearly power to pass the estate to a purchaser. This Court would not have interfered to restrain him from doing so, but would, on the contrary, have assisted a purchaser for value in procuring a conveyance. It cannot be disputed that, in taking the mortgage of November, 1851, S. had a per- fect intention to acquire all that R. E. V. could give ; and, taking the estate to be his, as between him and the purchaser, the words of description, ' all my estate,' would be sufficient to embrace it. That the statute has been expounded favourably and not narrowly, is, I think, clear on the authorities." His Honour then proceeded to cite Girling v. Lowther (r) and Garth v. Ersfield (s) as shewing that creditors, by judgment and recogni- zance (whose position is analogous), are purchasers within the statute, and concluded his judgment on this question by saying that, both on principle and author- ity, the mortgagees were entitled to the real estate com- prised in the voluntary settlement, as against the parties claiming under that settlement. This case stands alone, and the authorities which were relied on in it have been expressly overruled (t) so far as they decide the point for which they were quoted — viz., that judgment creditors are purchasers. Lord St. Leonards has remarked that the decision may re- quire further consideration (it). (r) 2 Eep. Ch. 136. ~~ (s) Sir J. Bridg. 22. (t) Ante, pp. 224, 225. («) Sug. V. & P. 14th ed. 713. 21 STAT. OF BLIZ. (5323) 238 WHO ARE PURCHASERS estate, a bankruptcy- is. All that this case has actually decided is, that a mort- gage to a particular creditor to secure his debt makes that creditor a purchaser within the 1 statute, even if the mortgage is only in general terms of all the estate, real and personal, of the debtor, -without any specific descrip- [ * 233 ] tion of the particular estate comprised * in If a general the previous voluntary deed. But if one general as- assignment is s ignment for payment of debts is a purchase, why not particular 6 ° all ? And if so, a general assignment by a debtor under the Bankruptcy Act, 1861 (v), which has never been taken to have this effect, or even the general transfer of all the property, real and personal, of the debtor to his trustee in bankruptcy, as effected by the Bankruptcy Acts, 1869 (w) and 1833 (x), and previous Bankruptcy Acts (y), must be taken to be within the same princi- ple : both transfers are general, and both are for the same kind of consideration — viz., a pre-existing debt. This view is borne out by the case of Cadell v. Bewley (z), in which A. covenanted, while solvent, to make a voluntary settlement ; three days after executing it, he covenanted to convey all his property to trustees for his creditors. The trustees of the settlement sold the prop- erty cumprised in it. The trustees under a deed of in- spectorship for his creditors claimed the purchase- moneys. It was held that the trustees under the deed for creditors could not support their claim as bonst fide purchasers within the statute ; and that, even if they were such purchasers, they could not claim the pur- chase-moneys. The only distinction that can be drawn is, that such a transfer as was made in Barton v. Vanheythuysen (a) is the act of the debtor himself ; whereas an adjudica- tion in bankruptcy is a proceeding in invitum against the debtor. Assignees and trustees in bank- ruptcy not purchasers for value. Assignees and trustees in bankruptcy, though for many purposes looked on as assignees for valuable con- sideration (&), have, in fact, never been so regarded for all pur poses ; "they stand in the place of the bank- (») 24 & 25 Vict. c. 134, ss. 192 et seq! (w) 32 & 33 Vict. c. 71, ss. 17, 22, 83 (6), (7), (8). (x) 46 & 47 Vict. c. 52, s. 4. (s) Sug. V. & P. 14th ed. 725. The Bankruptcy Act, 1849, was in force when this case was decided. (z) 15 W. E. 703. (a) 11 Hare, 126. (b) Collet v. De Gols, Forr. Ca. t. T. 65. (5324) WITHIN 27 ELIZ. c. 4. 239 rapt, and are bound by all acts fairly done by him, not- withstanding they gain the legal estate" (c), but are not considered as purchasers of the legal estate for a valuable consideration for every purpose (d). And if they were to be considered purchasers, * the [ * 234 ] great difference between the two statutes of Elizabeth, If so, subse- and the distinction drawn by the highest authority and bankruntcv always adhered to since (e), would be done away with; would always a voluntary settlement, however fair, honest and praise- avoid a worthy, made by a man in no way indebted nor mean- voluntary ing a fraud, would never be safe against the possibility of his subsequent bankruptcy. In In re Cross (/) a term of years was bequeathed to the wife of A., who conveyed all his interest therein to his wife, and after- wards became bankrupt. On application by the as- signee in bankruptcy for an order for sale of the term for the benefit of creditors, it was held that as A. could under 27 Eliz. c. 4, have defeated this settlement by a subsequent sale for value, his assignees, by leave of the Court, could also defeat it ; but the application was re- fused. Again, the rule, no doubt, in general is, that all vol- Purchasers untary conveyances are void as against subsequent pur- by general chasers ; but it is submitted that a conveyance by gen- wor ds not eral words to a creditor does not come within the rea- ^ason 1 of ^he son, though possibly within the letter, of the doctrine. ru i e . The reason of the doctrine is, that the inconsistency of the two conveyances, and the impossibility of their both taking effect, is a proof of fraud ; but how is it incon- sistent for a man to make a voluntary settlement of (c) Per Lord Hardwicke, in Walker v. Burrows, 1 Atk. 94. (d) By the Bankruptcy Acts, 1869 (32 & 33 Viet. c. 71), s. 15 (4), and 1883 (46 & 47 .Vict. c. 52), s. 44 (2) ii., the property of the bankrupt made available for creditors includes the capacity to exercise and to take proceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or during its continuance (or before his discharge, Act 1883), except the right of nomination to a vacant ecclesiasti- cal benefice ; and similar provisions have been contained in pre- vious Bankruptcy Acts. It might be thought that these sections would give to the trustees the power of selling to a purchaser land previously settled voluntarily ; but it is apprehended that their operation must be confined to giving the trustees the right to exercise all powers which the bankrupt might honestly have exercised, and that the construction of these provisions must be analagous to that of the 13th and 14th sections of the 1 & 2 Vict. c. 110, on which see ante, pp. 226 et seq. (e) See ante, pp. 15, 36, 45, 50, (/) 19 W. E. 153. (5325) 240 WHO ARE PURCHASERS part of his estate, and then, perhaps twenty years after- wards, having become embarrassed, to make a general conveyance of all his real and personal estate ? It can only be got at by presuming a fraudulent intention, which the words of the conveyance do not warrant (g). The presumption always is, in theory, that the subse- [ 235 ] quent purchaser is deceived, *and can only get what he bargained for by the avoidance of the prior voluntary deed (h). Voluntary Again, a voluntary settlement will only be avoided deed only so far as is necessary to give effect to the subsequent void so far as purchase for value ; and the full intention apparent on it breaks in ^ e | ace £ a ,jeed f conveyance, in general terms, quent ma y De carried into effect without avoiding any prior purchase. deed (i) Case of judg- ment creditors analogous. Entitled as purchaser for valuable considera- tion without notice. Parker v. Serjeant. Many of the arguments, moreover, which have been used to shew that judgment creditors are not pur- chasers within the statute apply with equal force to the case of persons claiming to be purchasers under a general conveyance for creditors : — they did not lend their money on the faith of the land, or with the view of taking the specific piece of land which was before settled voluntarily. A purchaser under this statute is a purchaser in the highest sense of the word, but it could hardly be con- tended that a trustee, under a general conveyance for the payment of a debt, would be, with regard to each specific portion of land, entitled to that favour which is shewn in equity to a purchaser for valuable considera- tion without notice (k). In Parker v. Serjeant (I) a man' agreed, on the mar- riage of his nephew, to settle (on a certain event) " an (g) And does not the maxim, that fraud is never to be pre- sumed, apply to such a case? Leukener v. Freeman, Freem. Ch. 236 ; Lady Gorge's Case, Cro. Car. 550 ; M ' Cormick v. Grogan, L. E. 4 H. L. at p. 97. "Fraus est odiosa et non prsesumenda" : Cro. Car. 550. (7») See Bennett v. Bernard, 10 Ir. Eq. Eep. 584, 588 ; ante, pp. 187, 188. (i) So that where settled lands were included in a mortgage ■with other unsettled lands, the latter were held primarily liable: Hales v. Cox, 1 N. R. 344 ; and see Dolphin v. Aylward, L. R. 4 H. L. 499-500 ; post, pt. vi. ch. i. (k) Basset v. Nosworthy, Finch. 102 ; Wh. & Tu. L. C. 6th ed. vol. 2, 1. (0 Finch. 146, 148. (5326) WITHIN 27 ELIZ. c. 4. 241 estate in fee of all other his messuages and lands (in Prior the bill mentioned), the whole being of the yearly voluntary- value of £700 ;" the lands being short of the value of ^wokl"* £700 a year, it was held that the deficiency could not aoa j ns t be supplied out of a previous settlement made by the general uncle on his wifa It was said, " though the said set- charge of tlement was voluntary, and made with a power of revo- f nD j U1 t7 on cation, which, by the very letter of the statute 27 Eliz. marr i a ie c. 4, would make it fraudulent against any purchaser, settlement, yet it could not be so against the nephew or his wife ; for it could not be made with intent to deceive her, be- cause it was made so long before her marriage, and the lands which were thus in jointure to *the aunt [ *236 ] were no part of the particular whereon the said mar- riage was made between the nephew and her." .... " Therefore the nephew and his wife cannot be ac- counted such purchasers so as to avoid the settlement made on the aunt as fraudulent because there was a power of revocation in it ; for it would be unreasonable to subject an estate settled long before (as this was in jointure to the aunt) to make good the value of a par- ticular wherein that estate was not so much as men- tioned." And so also in a case mentioned by Coke (m), where Cases in S. C, having a lease for sixty years, if he lived so long, Coke, forged a lease for ninety years absolutely, and, by in- denture reciting the forged lease, for valuable consid- eration bargained and sold the forged lease and all his interest in the land to R. G. Sir Edward Coke thought that E. G. was no purchaser within the statute of 27 Eliz. c. 4, for he contracted not for the true and lawful interest, for that was not known to him, for then per- haps he would not have dealt for it, and the visible and known term was forged ; and although by general words the true interest passed, notwithstanding he gave no valuable consideration nor contracted for it ; and of this opinion were all the judges. It is observed by Roberts (n) that it seems clear on Trustee of principle, and agreeable to all the determinations of the voluntary Court of Chancery, that a trustee appointed under a deed whether voluntary settlement cannot become a bona fide pur- a P urchaser - chaser so as to dissolve the connection between himself and his cestui s que trust, and that he cannot, by paying (m) Co. Litt. 3 b ; Bennett v. Bernard, 10 Ir. Eq. Rep. 584, 588. (») Fraud. Conv. 389 ; see notes to Fox v. Maekreth, Wh. & Tu. 6th ed. vol. 1, 174 et seq. (5327) 242 "WHO ARE PURCHASERS a full value, destroy his character of trustee ; but he cites no authority for this proposition. Whatever might be the result of an action by a trustee of a voluntary conveyance of land to enforce a subsequent contract for the purchase of it by himself, it seems that a trustee may afterwards purchase the trust estate from the vol- untary settlor as against his cestuis que trust. Doey In a case in the Court of King's Bench (o) J. L., Bottriell. seised in fee of copyholds', made a voluntary surrender to the use of G. E. and T. T. (the lessor of the plaintiff) [ *237 ] on trusts for himself and his *issue, and not long afterwards, in consideration of a fair price paid by the said T. T., again surrendered the premises to T. T. for life, remainder to the use of such persons as T. T. should by will appoint, or in default to the right heirs of T. T. It was argued that as T. T. was a trustee un- der the first deed, he could not be a purchaser within the statute, and as the legal estate was by both convey- ances vested in the same person, he could not defeat the first conveyance to himself, nor could he be consid- ered as a person defrauded or deceived within the stat- ute, and that a case might be supposed where a party would have to pay the penalty (p) to himself. But the Court (q) unanimously held that T. T. was not disqualified from becoming a purchaser, and that the voluntary conveyance was void against him ; for, if the first conveyance was fraudulent, it was void from the first though the purchaser had notice. A mere But of course a trustee who has, by the direction of trustee can- the persons beneficially entitled, made a voluntary con- not sell. veyance, cannot afterwards defeat it by his own sale for value to a purchaser with notice of the trust (r). Must the grautorof voluntary deed and vendor to purchaser the same person ? The next question is, whether a person is entitled to the rank as a purchaser within the statute who buys, not ,, from the grantor of the voluntary deed, but from some the other person claiming under him, either as grantee of a be second voluntary instrument or as heir or devisee'} In other words, does the statute 27 Eliz. c. 4, operate to avoid a voluntary deed, as against a subsequent purchaser, (o) Doe A. Tunsiill v. Bottriell, 5 B. & Ad. 131. (p) 27 Eliz. c. 4, s. 3. But the penalty is only on those who " put in ure, avow, maintain, justify, or defend " the fraudulent conveyance ; see post, pt. vi. ch. i. (g) Denman, C.J., and Littledale, Parke, and Patterson, JJ. , (r) Shelden v. Handbury, F. Mo. 757 ; Vin. abr. vol. 13 p. 527. (5328) "WITHIN 27 ELIZ. c. 4. 243 •where the grantor of the voluntary deed and the vendor for valuable consideration are not the same person? (s) Such cases are not affected by the construction of the Cases under Registry Acts, under which a subsequent registered Registry Acta deed will be preferred to a prior unregistered one, dlflerellt - although both be on valuable consideration (t). The difference is obvious. By those statutes *non- [ * 238] registration is the proof of fraud as against any subse- quent registered conveyance, independently of any con- sideration whether the person executing the first was, or was not, the same person who executed the second ; but in questions on constructive fraud under 27 Eliz. c. 4, as shewn by a voluntary conveyance followed by a sale for value, the fraud of the grantor is the material point. Cases of actual fraud, too, must be put out of the Actual fraud question. It is easy to imagine a case of this nature, also different, in which the statute would operate: A father, having T ns t ance two sons, might make a voluntary settlement of his fee- simple lands on himself for life, remainder to the younger son in fee. After the father's death the sons might agree together that the elder should take posses- sion of the lands, and that the younger son should con- ceal the settlement on him until his brother had sold the land as his father's heir-at-law, and that then the voluntary settlement by the father should be produced to defeat the bona fide purchaser; by which arrange- ment, if allowed, one son would get the purchase -money and the other the land (u). This according to the opinion of the Court in Richards Barrel's Case. v. Lewis (v), was the meaning of the first resolution in BurreVs Case (iv), which was, that "if the father makes a lease by fraud and covin of his land to defraud others to whom he shall demise or sell it (as all fraudulent leases should be so intended), and before the father sells or demises it he dies; and the son, knowing or (s) BurreVs Case, 6 Rep. 72 a ; Clerk v. Rutland, Lane, 113 ; Blake v. Hyland, 2 Dr. & Wal. 397 ; Jones v. WhHlaker, Long- field & T. Ir. Ex. 141 ; Parker v. Carter, 4 Hare, 400. (i) Warburton v. Loveland, 2 Dow. & CI. 480, as explained by- Lord Plunket in Blake v. Hyland, 2 Dr. & Wal. 397, and by Lord Campbell in Doe v. Rusliam, 17 Q. B. 735. (w) As to cases of persons losing their rights by concealing them, and standing by while a purchaser purchases, see ante, p. 197. note (n). (v) 15 Jur. 512, S. C. 11 Com. B. 1035. (to) 6 Rep. 72 a. In Clerk v. Rutland. Lane, 113, the same con- struction appears to have been put on this case. (5329) 244 WHO ARE PURCHASERS Miscon- strued. Statement of BurreVs Case. Either applies only to actual fraud. not knowing of the said lease, sells the land on good consideration; in that case the vendee shall avoid that lease by, the said act;" "and it is not necessary that he who sells the land should make the former estate or in- cumbrance; but, be the estate fraudulent ut supra, who- soever sells [makes] it, the purchaser shall avoid such fraudulent estate, &c. ; and therefore in the case at bar the said leases being, on the evidence, thought fraudulent, the vendee of the father and heir shall avoid them" (x). BurreVs Case (y) has however, frequently been cited [ * 239] as laying *down that a voluntary deed is con- structively fraudulent as against a vendee from a per- son different from the author of the voluntary deed (z) ; but the facts of the case do not warrant this assertion. They were as follows: — The grandfather, on the mar- riage of the father, covenanted to and afterwards did demise the premises in question to the father for 1000 years. The father, seven years afterwards, assigned the lease to his son, then an infant, that it might not be merged by descent of the reversion, and with a col- ourable intent that the infant should pay debts. The grandfather died; the father entered and took the pro- fits, and nothing was done by the son under the assign- ment of the lease. Afterwards, the father sold the land to a purchaser for a large sum of money, and it was held that the purchaser should avoid the lease for 1000 years and the assignment. Now it is clear that the assignment by the father to the son, being a mere voluntary gift, was void against the purchaser from the same person — the father; and, that assignment being out of the way, the original lease became merged in the freehold. All, therefore, that it was necessary for the Court to do was to declare the assignment void against the purchaser (a). The subsequent resolution therefore, that "it is not necessary that he who sells the land should make the former fraudulent estate," must either be taken, as was done in Richards v. Lewis (b), to apply only to cases of actual fraud (c), or, on the authority of Lord Campbell and the Court of Queen's Bench in Doe v. Rusham (d), as the resolution (x) Sng. V. & P. 14th ed. 713. (ij) 6 Rep. 72 a. (z) Warburton v. Loveland, 2 Dow. & CI. 487 ; Jones v Wliit- taker, Long. & Towns. 141 ; Blake v. Hyland, 2 Dr. & Wal. 397 (a) Rob. Fraud. Conv. 380. (6) 20 L. J. C. P. 177, S. C. 11 Com. B. 1035. (c) See also Lewis v. Bees 3 K. & J. 132; Sug. V. & P. 14th ed. 713. (d) 17 Q. B. 726. (5330) WITHIN 27 ELIZ. c. 4. 245 goes beyond what is required by the facts of the case, or is not it cannot be considered conclusive. conclusive. In the first case of Richards v. Lewis (d), it was held jn c ] Mr ^ s v ■ that a voluntary deed, not actually fraudulent, by which Lewis. husband and wife settled the wife's term of years on themselves for their joint lives, remainder to a son of the wife by a former husband, was not avoided pro tan to by a mortgage made by the widow surviving. "Williams, J., said the consequence of holding the con- trary * would be, that if a father disinherited [ * 240] his heir with the full intention that the conveyance should operate by way of gift to his younger children, the heir would have power to nullify it by sale of the premises. In Doe v. Rusham (e), the facts, as stated by Lord ~ - Campbell, C. J., in delivering the judgment of the Court Rusham." 1 of Queen's Bench, were as follows: — John Newman, being seised in fee, by deed dated July 3, 1833, cov- enanted to stand seised to himself for life, remainder to Sarah Newman (his daughter-in-law) for life, remain- der to George Newman (his grandson), the -lessor of the plaintiff in fee. On March 16, 1844, John Newman made his will and devised the premises to Sarah Newman , for life, remainder to Thomas Morse in fee. John Newman was buried March 19, 1844. On April 5, 1847, Sarah Newman and Thomas Morse sold and conveyed he premises to the defendant for £100. Sarah Newman died on May 2, 1849. The conflict, therefore, * was between the grandson, who claimed under the deed of 1833 (admitted to be voluntary), and the purchaser from the devisee of John Newman, the voluntary doner, by whose will the grandson was excluded. A verdict had been found for the plaintiff (the grandson), and a rule nisi had been obtained to enter a verdict for the defendant. Lord Campbell, after commenting on and explaining BurreVs Case (f) and other authorities, said that when a man has made a voluntary conveyance of land, the only estate in the land which remains in him is the power of selling to a bona fide purchaser for value ; but he clearly has no estate which he can convey to any one but a purchaser for value; so that John Newman, (d) 20 L. J. C. P. 177, S. C. 11 Com. B. 1035. (e) 17 Q. B. 724. (J) 6 Kep. 72 a. (5331) 246 WHO ARE PURCHASERS Difference between purchaser from heir and from devisee. Grantor of voluntary deed and vendor must he same person. So too in America. Death of settlor after contract for sale. when he had made his will in 1844, had no estate which he could devise to Thomas Morse; and if the devisee took nothing, how is it possible that he can convey any- thing to a purchaser ? There is some difference between the case of a pur- chaser from an heir and that of a purchaser from a de- visee; in the former case the ancestor has done no act [ * 241] whereby he has shewn any intention * to re- pudiate his voluntary conveyance, whereas in the latter the testator has done such an act by the devise in his will. But that act of devising does not shew any inten- tion in his mind to sell the property, nor that his devisee shall sell it, and therefore no inference of an intention to defraud purchasers by the voluntary conveyance can be raised by reference to the time of the voluntary con- veyance being made. In truth, neither heir nor devisee in such a case has any estate in him, and therefore can- not possibly pass any to a purchaser (g). This case, and that in the Common Pleas, which, were followed in Chancery in Lewis v. Rees (h), must be taken as overruling the decision of the Irish Court of Exchequer in Jones v. Whittaker («'), and the extra- judicial dicta to a contrary effect in the opinion of the ■ judges given on the case of Warburton v. Loveland in the House of Lords (k). Endless confusion might be caused by the adoption of the opposite rule, which would in fact be to prefer a subsequent to a prior voluntary conveyance. The same qualification of the right of a subsequent purchaser to avoid a prior voluntary conveyance — namely, that both the conveyances must have been made by the same person — is the law in America (I). But if after a completed contract for sale of the prop- erty the original settlor dies, his heir or devisee can of course obtain the benefit of the contract by completing (g) Doe v. Busham, 17 Q. B. 734. So in Jones v. Piirefoy, 1 Vern. 46: "The settlement was made by the grandfather" (on agrand- son), "and the estate passed from him ; but the mortgage was made by the father, who was never seised nor possessed of ihe estate." See also Anderson v. Elsworth, 3 Giff. 166. 170; Parker v. Carter, 4 Hare, 409-410; Lewis v. Bees, 3 K. & J. 132. (h) 3 K. & J. 132. (i) Longfield & Townsend, 141. (k) 2 Dow & CI. 487. (0 Story, Eq. Jur. 12th ed. s. 434 a. (5338) within 27 eliz. c. 4. 247 the sale (m), or the purchaser can compel him to per- form it (n), for he who has contracted for the purchase is in equity a purchaser within the statute (o). The fact that the purchaser had no notice of the vol- Notice im- untary conveyance by his vendor's ancestor or devisor matenal - has sometimes been urged in his favour, but there is, it seems, no weight in this (p), *unless so far as [ * 242] it might be important as evidence of actual fraud (q). But where the first conveyance and the sale are virtu- Sufficient if ally made by the same person, it is sufficient, though author of they are apparently and technically made by two sepa- Jg^ 11 ^^ rate persons. Thus, where (r) T. B., seized of land in verM i or are fee or fee tail, conveyed it by bargain and sale to E. C. virtually in fee, and E. C. suffered a recovery and declared the same person, uses to T. B. for life, &c, with power for him to revoke: T. B. having afterwards sold the land to a purchaser, the objection that the settlor and the vendor were not the same person was overruled, and it was held that as the settlement was in fact made by T. B. it was void against a subsequent sale by him (r). A somewhat analogous case is where two persons hav- Conveyance ing different interests in the same property make succes- ? f different sive and antagonistic conveyances ; thus in Hunt v. "Crests in Gateley (s) there were tenant in tail and remainderman; different the latter made a voluntary grant of rent, and after- persons, wards tenant in tail suffered a common recovery in favor otherwise. of a purchaser, and it was argued that the voluntary rent-charge was within the statute; but all the justices agreed clearly that (though of course of no effect against the purchaser) it was not void by 27 Eliz. c. 4, because by that statute the grant must be made by him who made the sale, and here the tenant in tail made the sale, and he in remainder the grant of rent. • (in) Willats v. Busby, 5 Beav. 193. (») Hatton v. Neale, Bui. N. P. 90 a. 261 a; ante, p. 203; Clarice v. Wlllott, L. E. 7 Ex. 313; Peters v. Nicolls, L. B. 11 Eq. 391; Boslier v. Williams, L. E. 20 Eq. 218. (o) Ante, p. 219. (p) Jones v. Purefoy, 1 Vera. 45. (S) Doe d. Bothell v. Martyr, 1 B. & P. (N.E.)342. (r) Bullock v. Thome, F. Mo. 615-6; ante, p. 214; Eob. Fraud. Conv. 616. (r) Bullock v. Thome, F. Mo., 645-6; ante, p. 214; Eob. Fraud. Conv. 616. (s) F. Mo. 154, 158. (5333) [*243] *p ART IY# WHAT IS A VALUABLE CONSIDERATION UNDER THE STATUTES OF ELIZABETH. CHAPTEE I. CONSIDERATION GENERALLY. In what cases It will be found that the question, whether a deed or the question transaction is voluntary or is made on good considera- of the con- tion, is only of importance as against creditors where it oHmpor" "* is bona fide; for if ib is not hon ^ fide («)— that is if i<; tance. is made with the actual and express intention of defeat- ing creditors — that is sufficient to make it void under 13 Eliz. c. 5, even if it be on full and valuable consid- eration (b), and much more so if it is voluntary (c). Mala fides supersedes all inquiry into the considera- tion; but bona fides alone is not always sufficient to support a transaction not founded on any valuable con- sideration (d). There are many points as to which the question, whether a deed is voluntary or made for valuable con- sideration, is of importance (e); for a voluntary con- veyance by a person indebted is void against his debts merely for being voluntary (/) ; and an assignment to defeat execution (g), or forfeiture (h), or not followed by a change of possession (»), which, if supported by [* 244] * valuable consideration, would be good, is in general void if voluntary. (a) Ante, pp. 78 et seq. (61 Ante, pp. 84 et seq. (c) Ante, p. 41. (d) Russel v. Hammond, 1 Atk. 13 West, t. H., 330 ; Nunn v. Wilsmore, 8 T. R. 528; ante, pp. 36 et seq. (e) Post, pt. v. ch. iii. (/) Ante, pp. 6, 35. (g) Ante, pp. 72, 99. (7t) Ante, pp. 71, 72. (i) Ante, pp. 113 et seq. (5334) WHAT IS A VALUABLE CONSIDERATION. 249 This chapter, then, will be confined to cases in which, Cases in the bona fides having been established or not disputed, which the the question remains as to the consideration, whether ° nlv .I 1168 " it is valuable and sufficient, or whether the conveyance is the con- voluntary, and for that reason void against creditors (k). sideration. The same kind of question arises under 27 Eliz. c. 4. 27 EJiz. c - 4 > 1 much the question. The distinction is that, as regards the latter statute, the inquiry is, what consideration will support a deed against subsequent purchasers; against whom, as a general rule, all voluntary conveyances are void, and all made on sufficient and valuable consideration are unimpeachable, in the absence of fraud. As the amount of consideration necessary under both statutes is in general much the same, it will be conve- nient to treat of them both at the same time (I). It was laid down by the Court of Exchequer in Cur- what is a rie v. Misa (m) that a valuable consideration in the valuable con- sense of the law may consist either in some right, in- sideration. terest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other. Under both statutes, of course, such a consideration Considera- as"5s. and other valuable considerations" does not tion nominal, oblige the Court to hold the conveyance, at all events, to be for valuable consideration, and can, at most, only let the parties thereto into proof that there were other valuable considerations (n) ; in fact, any consideration Inadequate, entirely inadequate is of no avail (o). So a settlement by demise of leaseholds under which the * trustees were liable to the payment of Is. [* 245] (k) Peat v. Powell, Amb. 387; Partridge v. Gopp, 2 Amb. 599; ante, p. 15. (I) Post, pp. 259, 260. (m) L. R. 10 Ex. 162; and see Com. Dig. Act, on case Ass. B. l-i5. (») Walker v. Burrows, 1 Atk. 94. (o) Partridge v. Gopp, 2 Amb. 596 ; Mathews v. Fcaver, 1 Cox, 278, 280; Dewey v. Bayntun, 6 East, 257, 282; Copis v. Middlcton, 2 Mad. 431 et seq. ; Hale v. Allnutl, 18 C. R. 527; Strong v. Strong, 18 Beav. 408; and see Tarleton v. Liddell, 17 Q. B. 390, 414. As to how far the smallness of the price paid may be evidence that the purchaser was a party to the fraud, see Lee v. Hart, 10 Ex. 560; Llanelly Railway and Dock Co. v. London and North-Western Railway Co., L. R. 8 Ch., perMellish, L.J., 958. (5335) 250 WHAT IS A VALUABLE if demanded, and beyond that were under no liability, -was held void against a subsequent mortgagee under 27 Eliz. c. 4 (p). There must be a real consideration paid, or a fair Inadequate, interchange of interests; for though mere inadequacy of price is not in general a circumstance which -will of itself make an assignment void (q), yet, if the inade- quacy is, very great — at least, if it is so palpable that it must be taken to have been a fraudulent contrivance between the parties — the transaction will be void against creditors (r), especially if what little consideration was given consisted of an existing debt (s). So where a man in extremis assigned to his mother policies of assurance on his life amounting to £800 in consideration of a debt of £174 3s. Qd. owing to her, it was set aside as a fraud on his ■ creditors (t); and where gross inadequacy of price is coupled with want of possession it will gener- ally be fatal to the sale («). A deed of sale on grossly inadequate consideration may be set aside so far as it purports to be an absolute conveyance, and may stand as security only for the moneys actually advanced (v) ; and Failure of. where the consideration has failed through the fraud of the vendor the contract on the part of the vendee in con- sideration of it will not be enforced against him (w). Meritorious. Deeds founded on meritorious considerations alone, such as natural love and affection, or made simply as provisions for a wife or children, or in discharge of any other moral, but not legal, obligation, are looked upon as merely voluntary within the statutes of Elizabeth (x\ [ * 246] for the "good" consideration required * by (p) Shurmur v. Sedgwick, 24 Ch. D. 597. lq) Vopis v. Middleton, 2 Mad. 423; ante. p. 81. (r) Strong v. Strong, 18 Beav. 408; Hall v. Allnutt, .18 C. B. 505, 527; Tennent v. Tennents, L. E. 2 H. L. Sc. 6; vide supra, p. 84. is) Vide ante, pp. 94 et seq. ; post, p. 252. t) Stokoe v. Cowan, 29 Beav. 637. u) Dewey v. Bayntun. 6 East, 257. v) Hollamby v. Oldrieve. W. N. (1866) 94, rader 13 Eliz. c. 5; Doe v. Soutledge 2 Cowp. 712, 713 ; Douglas v. Culverwell, 3 Giff. 251; and see Lomax v. Buxton, L. B. 6 C. P. at p. 111. (w) Tarleton v. Liddell, 17 Q. B. 390, 414. (x) Woodie's Case, cited in Colvile v. Parker, Cro. Jae. 158; Twyne's Case, 3 Rep. 81 b; Chapman v. Emery, 1 Cowp. 278; Stiles v. Attorney-General, 2 Atk. 152; Evelyn v. Templar, 2 Bro. C. C. 148; Taylor v. Jones, 2 Atk. 600-3; Mathews v. Feaver, 1 Cox, 280; Doe v. Bowe, 4 Bing. N. L. 737: Goldsmith v. Bussell, 5 De G. M. & G. 547, 555; Penhally. Elwin, 1 Sm. & G. 270; Tweddley. Atkinson, 1 B. & S. 393-9. (5336) CONSIDERATION. 251 them (y) has always been construed to mean "valua- ble" consideration (z). In Mathews v. Feaver (a) Sir Lloyd Kenyon said ; "This is a transaction between father and son, and nat- ural love and affection, is mentioned as part of the con- sideration, upon which, as against creditors, I cannot rest at all. It is true it is a consideration which, though not valuable, is yet called meritorious, and which in many instances the Court will maintain, but not against creditors." In fact, a settlement or other conveyance in favour of Considera- a near relative is open to more suspicion than one to a atum as mere stranger, inasmuch as it is more likely to be in- re i a tioiis 'tended, not a real transfer of property by which the donor puts it out of his own reach (b), but as a feigned and collusive arrangement by which it is secretly under- stood that the donee shall hold the property against the claims of creditors or purchasers, and still let the donor receive benefits from it (c). But on the other hand, where there is no appearance of such an intention these moral considerations are not entirely disregarded in cases where the consideration is made up partly of value and partly of love and affec- tion (d). It cannot be considered per se a mark of fraud that in entering into a contract with a relation a man has given him better terms than he would to a mere stranger (e). In Roslier v. Williams (/) the modern rule for de- Rosier v. ciding whether a settlement made between . relations is Williams. for value or voluntary was thus stated by Malins, V. C. : ■ — "If between a father and husband and wife, or parent and child, or in any way whatever an instrument is executed which ordinarily is called a voluntary settle- ment, and it turns out that, instead of being purely (y) Section 6, ante, p. 84. (z) 3 Bac. Abr. 31; 1 Fonbl. Eq. 271; 3 Rep. 80 b; Johnson v. Legard, 6 Mau. & S. 60. (a) 1 Cox, 278, 280. (b) Ante, pp. 56, 81. (e) Twyne's Case, 3 Bep. 81 b; Cornish v. Clark, L. E. 14 Eq. 184; Cracknall v. Janson, 11 Ch. D. 1. (d) Persse v. Persse, 7 CI. & F, 279, 318, West, Ap. C. 110, 141; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. Ch. 503; ante, pp. 82, 83. (e) Moore v. Crofion, 3 J. & Lat. 443; and see Jones v. Marsh, Ca. t. Talb. Forr. 64; Myersv. Duke of Leinster, 7 Ir. Eq. E. 146; 164. (f) L. E. 20 Eq. 218. (5337) 252 WHAT IS A VALUABLE In honest transactions the amount of considera- tion not strictly looked at. voluntary, any consideration -whatever was paid or [ * 247] * given, or any benefit rendered to the grantor, even such an agreement to relieve the grantor from the immediate payment of a debt as in Bayspoole v. Collins (g), the Court will anxiously lay hold of any circumstances, constituting a consideration moving from the grantee to the grantor, to take a case out of the category of voluntary settlements." So when a bond fide and honest instrument is executed for which valuable consideration is given, and the instrument is one between relatives, the Court cannot say that the difference between the real value of the estate and the consideration given is a badge of fraud (h). Where it is found that the transaction at issue is on the whole fair and honourable, and not induced by the fraudulent intention of defeating creditors or purcha- sers, the Court is not very particular as to the amount of the consideration (i); if it is valuable, and not so entirely inadequate as from its insufficiency to induce the presumption of fraud, it is enough. If there is any valuable consideration for a settlement, the quan- tum of such consideration is of no consequence under 27 Eliz. c. 4 (k). The smallness of the consideration is not a matter the Court will go into, except so far as it is evidence that the transaction was a sham (I), and it will not " weigh considerations in diamond scales " (m). (g) L. E. 6 Ch, 228. (ft) In re Johnson, 20 Ch. D., per Fry, J., 397; ante, p. 83. (t) As against purchasers, see Roe d. Hamerton v. Mitton, 2 Wils. 356; Jones v. Marsh, Ca. t. Talb. Forr. 64; Doe v. Eolfe, 8 A. & E. 650, 672; Fitzmauriee v . Sadlier, 9 Ir. Eq. 595, 611; Ford v. Stuart, 15 Beav. 493; Sewison v. Negus, 16 Beav. 594; Townend v. Toker, L. E. 1 Ch. 446; Atkinson v. Smith, 3 He G. & J. 186; Bayspoole v. Collins, L. E. 6 Ch. 228; and as against creditors, Stephens v. Olive, 2 Bro. C. C. 90; King v. Brewen, ibid. 93, n. ; Stiles v. Attorney-General, 2 Atk. 152; Nunn v. Wilsmore, 8 T. R. 529; Copis v. Middleton, 2 Mad. 430; Jones v. Boulter, 1 Cox, 288; Hobbs v. Hull, 1 Cox, 445; Thompson v. Webster, 4 Drew. 632, S. C. 4 De G. &-J. 600; Pott v. Todhunter, 2 Coll. 76; Holmes v. Pen- ney, 3 K. & J. 90; Myers v. Duke of Leinster, 7 Ir. Eq. 146, 164; Grogun v. Cooke, 2 Ball & B. 234; Wakefield v. Gibbon, 1 Giff. 401; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503. (k) Price v. Jenkins, 5 Ch. D. at p. 621 ; In re Foster and Lister, 6 Ch. D. 89, post, pp. 290 et seq. ; and see Lee v. Mathews, L. R. 6 Ir. C. L. 530. (I) Per Sir W. M. James, V.C., in Bayspoole v. Collins, 18 W. E. 730. (m) Per Lord Talbot (Forr. 64), as quoted by Wilmot, C.J., in Roe v. Mitton, 2 Wils. 358, n. (5338) CONSIDERATION. 253 A simple purchase by a stranger for money paid can- not be set aside at the suit of creditors or purchasers unless there is such inadequacy as to induce the pre- sumption of collusion, or such, in *fact, as [ * 248] might have invalidated the sale as between the vendor and purchaser, without the interposition of creditors or purchasers (n). It was said by the Court in Bolton v. Madden (o), "the adequacy of the consideration is for the parties to consider at the time of making the agree- ment, not for the Court when it is sought to be en- forced." So Lord Westbury laid down the rule in Tennent v. Tennents (p): "It is true that there is an equity which may be founded upon gross inadequacy of consideration. But it can only be where the inade- quacy is such as to involve the conclusion that the party did not understand what he was about, or was the victim of some imposition." Since the Sale of Eeversions Act, 1868 (31 Vict. c. 4), it is conceived the rule as to inadequacy of price in sales of reversions is the same as with regard to estates in possession (q). Apart from this, the question is, in all manner of Real ques- conveyances and settlements, not whether the consider- tiorl > ation is adequate, but whether it is valuable (r), so as *? cons " lenl - to satisfy the words of the respective statutes. The able? Court is not, however, tied down by the exact words of the statutes so as to be compelled to hold every consider- ation which appears to be valuable good against cred- itors or purchasers. So where it sees a consideration (n) Although it is laid down that mere inadequacy of price will not of itself make a sale invalid as between the vendor and purchaser (Harrison v. Guest, 6 De G. M. & G. 424, 8 H. L. C. 481), yet where there are other suspicious circumstances it may undoubtedly do so: see Clarkson v. Hanway, 2 P. Wms. 202; Wood v. Abrey, 3 Mad. 417; Davies v. Cooper, 5 My. & Cr. 270; Clark v. Malpas, 31 Beav. 80, S. C. 10 W. R. 613, 677; Baker v. Monk, 33 Beav. 419; Kerr, Fraud and Mistake, 2nd ed. 160. And it may be said that in this class of cases the mere fact of the conveyance having been ostensibly a sale for full consideration, while the consideration was in fact grossly inadequate is of itself evidence of fraud. A deed made on fictitious consideration cannot be supported on the ground of natural love and affection: see Willan v. Willan, 2 Dow. 274; Bridgman v. Green, 2 Ves. 627, Wilm. 58, 2 Com. Dig. 640; Bowen v. Kirwan, LI. & G. t. Sug. 47, 66. (o) L. R. 9 Q. B. 57. (p) L. R. 2 H. L. Sc. 6. (q) See Fry, Sp. Pf. 2nd ed. ch. 7; notes to Chesterfield v. Jan- son, Wh. & Tu. L. C. 6th ed. vol. 1, 686 et seq, (r) Basset v. Nomorthy, Finch, 102. 22 STAT. OF ELIZ. (5339) 254 WHAT IS A VALUABLE is made up with a view to defraud creditors, the Court will lean againt it and reduce it to what is just and equitable (s), As against purchasers, under 27 Eliz. c. 4, the ques- tion whether a settlement is voluntary or not is fre- [ * 249] quently the only question that *has to be de- cided; for that is frequently the test whether a trans- action is or is not fraudulent. As the fraud under this statute is more purely statu- tory and constructive than that under 13 Eliz. c. 5, the Courts have beeD at least equally lenient in allowing the validity of conveyances, and have upheld them upon (if anything) slighter considerations than those which are necessary against creditors. A man indebted who sells his property ought to get a fair return, so as to keep the same amount of property for payment of his debts (t), whilst, as between a purchaser of land and a person claiming under a prior title, the question is, which has the best right, and if the first gave any con- sideration the conveyance to him is not likely to be "in- fected with the doctrine of voluntary conveyances" (u). Legal An act which the doer could have been compelled to obligation 54 {x) 9 Ves. 612. ' > *• ' (5340) CONSIDERATION. • 255 contracting that marriage, a wife living, and to make L. some compensation he gave her a bond to secure her an annuity for her life (y). So also where (z) the trustees of a marriage settle- Ex parte ment had a right to be repaid by the husband, on his Robinson. death or failure in his circumstances, £1000, which had been paid to him as his wife's fortune, and he, before the event, had, on the application of the *trus- [ * 250] tees, secured the £1000 by mortgage. On the husband's bankruptcy his assignees disputed the mortgage. Lord Chancellor Hart said the question was, whether the con- tract was such as that the husband was compellable, on a bill filed adversely, to do what he did, and neither of the contingencies on which he covenanted to pay having occurred, the trustees could not have acted adversely so as to compel payment, and therefore the mortgage was void against the creditors as a nudum pactum. But where a man on his marriage acquired (a) money Settlement through his wife, and contracted in her favour in the in respect of event of his bankruptcy, or created a trust of his property mone y ° f to take effect in that event, to the extent of her money, ^ husband such contract or trust, to the extent of such money, was f or value, deemed to have been made for valuable consideration, and therefore to be good against his creditors (b). A mere advance by way of loan is, of course, sufficient when a loan consideration for a conveyance by way of security; and is good eon- even if secured by a mortgage may sometimes amount sideration. to a valuable consideration for a settlement where it has been advanced bona fide by one ignorant of the debts, on the express condition of the settlement of other property being made (c). So, too, where the advance forms part of an arrangement dealing with mixed in- terests, which could not otherwise have been effected (d) ; and although the person advancing the money does not occupy the position of a trustee or a relation, as a set- tlement on children or wife in consideration of a loan by a third person (e). (y) See also Matthews v. L e, 1 Mad. 558. (z) Ex parte Robinson, 1 Moll. 291. (a) But see now the Married Women's Property Act, 1882 (45 &46 Vict. c. 75), ss. 1, 2, 5. {!>) Ex parte Young, Buck, 187; and see the Bankruptcy Act, 1883 (46 & 47 Vict. c. 54), s. 47. (c) Thompson v. Webster, 4 Drew. 628, S. C. 4 De G. & J. 600. Id) Nunn v. Wilsmore, 8 T. E. 521. (e) Ford v. Stuart, 15 Beav. 493; Bayspoole v. Collins, L. E. 6 Ch. 228; and see Wheeler v. Caryl, 1 Amb. 121; post, p. 297. (5341) 256 WHAT IS A VALUABLE Holmes v. In Holmes v. Penney ( / ) A. being entitled to a life Peimey. interest in a sum of Consols, and being deeply indebted, his brother agreed to pay all debts not charged on A.'s life interest, on condition that the life interest should be settled so as to be applicable to the maintenance of A., his wife and children, or any of them, at the abso- lute discretion of the trustees. It appeared that the [ * 251 ] brother had done *his best to find out all A.'s debts, but there was one then owing to the plaintiff which he did not hear of. It was held that the settle- ment was good against the plaintiff's debt as being on valuable consideration. Bayspoolev. In Bayspoole v. Collins (g) (decided under 27 Eliz. Collins. c 4) ; a q_ waa owner of property subject to a mort- gage, the interest on which was in arrear, and the mort- gagees had given notice to the tenants to pay their rent to them, and threatened to exercise their power for sale. Under these circumstances, A. C.'s solicitor agreed to advance to A C, on his note of hand, sufficient money to pay the interest and other outstanding debts, on con dition of his settling the property, subject to the mort gage, on his wife and children, which he accordingly did. This settlement was held good against a subse quent mortgagee of the settlor. Lord Hatherley, L.C., there said : " Now, it is not for me to say whether the mode by which the Court has attempted to remedy some of the evils of this state of Jthe law — namely, by hold ing that a small and inadequate consideration is sufli cient to support such a settlement under the statute of Elizabeth — has diminished the evil of the mischief. But so it is, that a very small consideration is admitted to be sufficient. If this bargain which is alleged to have been entered into is established, then we have this fact, that, in consideration of an advance of £150 to the settlor, he agreed to execute this settlement upon his wife and children. That being the case, the author- ities are sufficient to shew that such a consideration, although, merely by way of loan secured by a promis eory note, is adequate to support such a settlement." Pott v. Tod- Under this head may be classed the case of Pott v. ikunler. Todhunter (h), which was a case of an inoperative will, in order to effect the fulfilment of which a friend of the family, under difficult circumstances, effected an ar- (/)3K. & J. 90. (.?) L. R. 6 Ch. 228. (A) 2 Coll. 76; post, p. 278. (5342) 257 rangement with all the persons interested, and by his tact and management secured to A. B., a married wo- man, the property which was intended for her by the invalid will. He did all this on the express agreement and understanding that, with regard to such personal estate as should be procured * generally by [ * 252 ] these arrangements, he should have power to make such settlement upon A. B. and her family as he should think fit. The settlement on them having been exe- cuted, it was upheld against the husband's creditors, although the property was before the settlement vested in him as administrator, he having, in order to further the above arrangements, taken out administration to the estate. A pre-existing debt, although a good and valuable Existing consideration (i), is not in general so good a considera- debt, tion as money actually paid at the time, even under the statutes of Elizabeth, because it partakes more of the nature of a preferential payment of the debt than a fair sale (fc). Under the Bankruptcy Acts it is one which is naturally viewed with still greater suspicion, for their object is to pay all the creditors rateably, and any conveyance in satisfaction of a debt is prejudicial to that arrangement (I). A conveyance by way of security for a pre-existing Security for debt comes under the same category (in). debt. A conveyance made to secure a loan (n), or a further Fresh ad- advance (o) made at the time of the execution of the vance aliter. deed, stands on a different footing, for then the debtor gets an equivalent for some part of the property, and that remains subject to the claims of creditors. But then the question arises, whether the new advance was (?) Twyne's v. Case, 3 Rep. 80 b; Belcher v. Prittie, 10 Bing 408. (k) See Martin v. Willyams, 20 L. T. (N.S.) 352; ante, pp. 331 et seq. ; Holbird v. Anderson, 5 T. R. 235; Plumb v. Flintt, 2 Anstr. 439, 440; and other cases, ante, pp. 104 et seq. (I) See ante, pp. 12, 100 et seq. ( (m) Oriental Banking Co. v. Coleman, 3 Giff. 11 ; Smith v. Cannan, 2 E. & B. 35; Woodroffe v. Johnston, 4 Ir. Ch. 319; Ex parte Hodg- Jcin, L. R. 20 Eq. 746; Ex parte Field, 13 Ch. D. 106, n. ; ante; pp. 94 et seq. (n) Pennell v. Reynolds, 11 C. B. (N.S.) 709; Button v. Crutlwell, 1 E. & B. 15, 21; Harris v. Eickett, 4 H. & N. 1; see also Cook v. Walker, 3 W. R. 357. (o) Holmes v. Penney, 3 K. & J. 90 ; Weaver v. Joule, 3 C. B. (N.S.) 309. (5343) 258 WHAT IS A VALUABLE substantial, or was merely a small sum paid to give a shew of consideration to the transaction (p). Continuance [*253] *The continuance of the rent reserved by the for- of rent, &e. mer lease is a good consideration for a promise to grant the lease in reversion (q), but the consideration of money already laid out is no consideration for the promise to renew a^lease, and money afterwards laid out will make no difference (r); and of course the giving up of his tenancy by a tenant at will is no consideration (s). In Owen v. Ow$n (t) it was held that a lease at £10 a year, to commence at the death of the lessor of property worth £27 a year, was a good consideration against a mortgagee (w). Promise not It has been decided that a promise by a plaintiff not to apply for to apply for costs in bankruptcy, to which he had a con- costs good. tingent right, if the judge chose to give them to him, is a sufficient consideration for a promise of the defendant But not to pay those costs (v). But a promise to conduct pro- promise as to ceedings in bankruptcy so as to injure as little as pos • proceedings B ible the debtor's credit is not a good consideration to ruptcy k " support a contract (w). Compound- Forbearing to prosecute for obtaining mone)' by false ing prose- pretences is an illegal consideration (x), and so is every cutions. compromise of a prosecution for a felony (y) or a mis- demeanor of a public nature (z); but a satisfaction for an injury of a private nature or the compromise of a misdemeanour of a private nature is in general a good consideration (a). (p) See Ex parte Bailey, 3 De G. M. & G. 534; Young v. Waud, 8 Ex. 221; Hale v. Allnutt, 18 C. B. 505; Graham v. Chapman, 12 C. B. 85; Bell v. Simpson, 2 H. & N. 410; Smith v. Timms. 7 Jur. (N.S.) 1015; Goodriclce v. Taylor, 2 D. J. & S. 135; Lacon v. Liffen, 32 L. J. Oh. 25, 315; Lomax v. Buxton, L. R. 6 C. P. 107; Ex parte Fisher, L. B. 7 Ch. 636 ; Ex parte Hauxwell, 23 Ch. D. 626; Ex parte Johnson, 26 Ch. D. 338; ante, pp. 95, 96. (q) Moore v. Crofton, 3 J. & Lat. 438. lr) Robertson v. St. John, 2 Bro. C. C. 146. (s) Kent v. Prat, 1 Brownl. 6. It) 3 H. & C. 88. (u) See also Bainbridge v. Firmstone, 8 A. & E. 743 ; Wilkinson v. Olheira, 1 B. N. C. 490. (t) Bracewell v. Williams, L. E, 2 C. P. 196. (w) Ibid. (x) Clubb v. Huison, 18 C. B. (N.S.) 414. (y) Williams v. Bayley, L. E. 1 H. L. 200 ; Flower v. Sadler, 10 Q. B. D. 572. (z) Coppock v. Bower, 4M.&W. 361. (a) Westby v. Westby, 2D. & War. 519; post, pp. 310, 311. (5344) CONSIDERATION. 259 The consideration for a judgment which is obtained Considera- by a point tried need not be proved, but it shall be in- tion of tended good (b); but he who upholds a judgment by judgments confession must prove it to be for a just debt (c). confessed A promise by an eldest son to his father on his death- Promise by bed to make a provision for the younger children out ^ eir . aU(l ii AVI Cpp of the property *left to him has been held [ * 254 ] sufficient consideration to support a bond made in pur- suance of such promise (d). Incurring liability for another person >is a good con- indemnity, sideration. In Worsley v. Demaitos (e), Lord Mans- field said: "The indemnity which is the consideration of the deed in question I allow to be a good, valuable, and true consideration." A covenant by a son to pay his father's debts is a good Covenant, consideration (/). A covenant of indemnity in a set- tlement has been held sufficient to support it (g) under 27 Eliz. c. 4. So also a settlement of leaseholds is sup- ported by the usual covenants expressly or impliedly entered into by a lessee (h). In Rosher v. Williams (i) a conveyance of real estate otherwise voluntary contained a covenant by the grantee under specified circumstances to build on part of the estate conveyed. The conveyance contained no shifting clause or provision for defeasance if the covenant was not peformed. It was held by Malins, V.C, that as no consideration was shown moving from the grantee to the grantor, and as the covenant was only to commence to build, and not to commence and finish, and was not one to which a penalty attached, it raised no considera- tion for the deed under 27 Eliz. c. 4. Voluntary instruments, unless obtained by fraud, are good between the parties to them and all other persons, (6) Keenan v. Handley, 2 X). J. & S. 283. (c) Sanders v. , Holt, 327. (d) Eales v. Gee, Barn. Ch. 397. (e) 1 Burr. 474; Skidmore v. Bradford, L. R. 8 Eq. 1. (/) Scott v. Scott, 18 Jur., per Lord Cranworth, L.C., 758. (g) Tovmend v. Toker, L. R. 1 Ch. 446. (h) Horrocks v. Rigoy, 9 Ch. D. 183, 184; and see Price v. Jen- kins, 5 Ch. D. 619; infra, pp. 257 et seq. ; Dav. Prec. 4th ed. vol. 2, pt. 1, p. 419, note (d). (i) L. R. 20 Eq. 210; and see Mullins v. Guilfoyle, 2 L. R. Ir. 108-109. (5345) 260 ASSIGNMENT OF LEASEHOLDS Giving up a benefit voluntarily conferred in exchange for something a valuable con- sideration. Ex parte Berry. except those as against 'whom the statutes of Elizabeth make them void, and, subject to the rights of creditors for value, voluntary creditors have a debt which they can enforce (&); and upon this it seems is founded the principle, that if a man gives up what has been given to him voluntarily, and receives something in exchange, the giving up the first gift is a valuable consideration. [ * 255] *In a case of this kind (I) a voluntary bond was given up to the obligor of it before his bankruptcy, and, in consideration of the surrender, a second bond on which proof was tendered was given. Lord Eldon said it was a hard case; the first bond was clearly good between the obligor and obligee, and payment of it might have have been enforced. The obligor, instead of payment, gives another bond which was not volun- tary ; being given upon cancelling the other security. If there is mala fides or a fraudulent intention in the sense of attempting to substitute an available security for one that could not avail against creditors, it is oth- erwise; but a voluntary bond, being good between the parties, if that security by which the obligor might have been compelled long before his bankruptcy to pay is given up for another security, the security so substi- tuted is not voluntary, but stands on a sufficient con- sideration. Stiles v. Attorney- General. In Stiles v. Attorney-General (m) the Duke of "Whar- ton had made two gifts of annuities to Dr. Young, which were disputed by judgment creditors. The first annuity was expressed to be in consideration that the public good is advanced by the encouragement of learn- ing and the polite arts, and of the Duke's being pleased with Dr. Young's attempts therein, and in considera- tion likewise of the. love he bore him. The second annuity was in consideration of the Duke being indebted to Dr. Young in the sum of £350, and of his leaving Lord Exeter's service and thereby losing an annuity of £100 which Lord Exeter had before agreed to settle on him if he stayed as tutor. As to the first annuity, Lord Hardwicke thought it was not a (k) See ante, pp. 68 et seq., 208, 209; post, pt. v. ch. iii. et seq. ; In re. Walliampton Estate, 26 Ch. D. 391. (?) 19 Ves. 219. See also Nixon v. Hamilton, 2 D. & Wal. 364, 381 , Meggison v. Foster, 2 Y. & C. Ch. 336 ; Barnes v. Medley, 2 Taunt, 184 ; Fitzmanrice v. Sadlier, 9 Ir. Eq. 595 ; Stiles v. Attor- ney-General, 2 Atk. 152, et infra. (m) 2 Atk. 152. (5346) FOR VALUE OR VOLUNTARY. 261 legal consideration; for though it may be a very good inducement to a person for his doing it, yet it will not amount to a valuable consideration in the eye of the law; but then it appeared that in order to accept the first annuity Dr. Young was obliged to give up the an- nuity offered him by Lord Exeter, and this Lord Hard- wicke said certainly amounted to a valuable considera- tion. For it has been truly said it will equally arise where a person gives up a *certain pecuniary [ * 256] advantage at the time of the grant as where a sum of money is actually paid down at the time. And though the grant of the first annuity might be voluntary if taken singly, yet the recital in the second will alter the nature of it and turn it into a valuable consideration; for, as there were arrears on the first, there is no doubt but this was a just and legal debt and the promising not to sue for those arrears was a good consideration, and from that time the first anuuity ceased to be a voluntary grant. Another bond, given to Dr. Young in consideration of his being at a very great expense when he was a candidate for a seat in Parliament, was held quite vol- untary. Two propositions (confirmed by subsequent cases) may be deduced from this case : 1. The giving up of a pecuniary advantage is as Giving up a good and valuable a consideration as money paid, al- pecuniary though the advantage given up would only have been advantage. in return for services rendered or work done (n); and this seems seems to be what is meant by saying that loss is as good a consideration as profit (o). 2. Where an annuity secured by a voluntary instru- Arrears of ment falls into arrears, a fresh security given for those voluntary arrears will be supported against creditors or purchas- annul y- ei's; for the instant the arrears accrue they are, as be- tween the obligor and obligee, a debt for which the obligor might immediately be sued, and being a debt, and as sufficient as a debt for valuable consideration, may be dealt with as such, and # any transaction founded upon that — whether a bond for the arrears or the (») Tovmend v. Taker, L. E. 1 Ch. 460 ; see also Lady Mary Herbert v. Earl Powis, 1 Bro. P. C. by Toml. 355. (o) 1 Ch. Ca. 74. (5347) 262 ASSIGNMENT OF LEASEHOLDS under 27 Eliz. c. 4 arrears given up and something given in lieu of them — will be for valuable consideration (p). Assignment The question whether an assignment of leaseholds of leaseholds can ever be voluntary under 27 Eliz. c. 4, or whether for value there is always an express or implied consideration moving from the assignee, according as he does or does not expressly covenant to pay the rent and perform [ * 257] *the covenants of the lease, has been the- sub- ject of several recent decisions. Price v . In Price v. Jenkins (q) leaseholds were assigned by Jenkins. a settlement made in contemplation of re-marriage to trustees on certain trusts after payment of all out-go- ings. The trustees did not covenant to pay the rent or perform the covenants of the lease. James L. J., said: " The trustees came under a responsibility for payment of rent and performance of the covenants of the lease. It might be such a responsibility that a lessee might be actually willing to pay money to get rid of. If there is any valuable consideration for a settlement the quantum of such a consideration is of no consequence under the statute of Elizabeth. I think that here there was a valuable consideration sufficient to support the settlement against a subsequent purchaser." The principle of the decision in this extreme case seems to shew that an assignment of leaseholds must always be for value under the statute of 27 Eliz. c. 4. For, in this case the first trust was for payment of all out-goings, and it was not alleged that any liability at- tached to the trustees, who were bound by no express covenant, but only by the implied obligation to perform the covenant in the lease (r). This seems to have been Exparte the view .of Bacon, C.J., in Ex parte Doble (s), where Doble. the assignment of leaseholds was in consideration of an annuity of £50 a year. It did not appear whether the lease did or not contain a covenant not to assign with- out the licence of the lessor. The assignment was held valid. Bacon, C.J., said: "Whether the lease con- tained a covenant against assignment or not would not \p) Gilham v. Locke, per Sir W. Grant, M. R., 9 Ves. 614 ; Ex parte De Grouchy, 3 Mont. & A. 27 ; see also Greaves v. Eouldilch, 2 Price, 147. (q) 5 Ch. D. 619; but see Thomas v. Tliomas, 2 Q. B. 851. (r) See Dav. Prec. 4th ed. vol. 2, pt. 1, 419, note (d); and comments of Hall, V.C., in Trowell v. Shenlon, 8 Ch. D. 321. (s) 26 W. R. 407, affirmed on appeal; and see Ex parte Sill- man, 10 Ch. D. 624. (5348) FOR VALUE OK VOLUNTARY. 263 affect my decision. It has been stated in the Court of Appeal in the case of Price v. Jenkins (t), and such statement is binding on me, that if no fraud can be proved the assignment of a lease is always for valuable consideration." In Horrocks v. Rigby (it), Lord Justice Fry (then Mr. Justice Fry), following Price v. Jenkins (t), .held that a covenant by an * assignee of leaseholds [* 258] to pay the rent and perform the covenants of the origi- nal lease was a valuable consideration. In In re Ridler (v), a case decided under 13 Eliz. c. j n re Bidler. 5, the case of Price v. Jenkins (t) was again discussed by the Court of Appeal. Cotton, L.J., there said: "It has been decided under the statute of 27 Eliz. c. 4, that a voluntary conveyance, though honestly and fairly made, was fraudulent as against a subsequent purchaser from the settlor. Price v. Jenkins (t) qualified that doctrine, and decided that the grantee's undertaking the liability for rent was sufficient to support a settle- ment which was open to no objection but that of being voluntary. It is a decision of this Court, and we have not to consider whether it was right or wrong, for we are bound by it." But in tbe recent case of In re Marsh and Earl Granville (w), Bowen, L. J, seems to have accepted the decision in Price v. Jenkins (t) in its widest sense. It was, he said, a case in which there was an assign- ment of leasehold property with a liability to perform certain covenants attached to it, and it was held that the assignment was therefore a conveyance for valuable consideration. The conclusion from these cases seems to be that any assignment of leaseholds can be supported under 27 Eliz. c. 4, as against a subsequent purchaser, merely because of the express or implied responsibility which the lessee comes under by virtue only of the assign- ment. In the Irish Courts, however, under the correspond- (<) 5 Ch. D. 619. (u) 9 Ch. D. 183, 184. (u) 22 Ch. D. 74, R2. (w) 24 Ch. D. 11, 25; and see Be Lulham, 32 W. R. 1013, affirmed on a different point, 33 W. R. 788; Coote, Mortgages, 5th ed. 580, 587; and In re Foster, 54 L. J. (N.S.) Ch. 73; and see Green v. Falerson, 32 Ch. D., per Cotton, L.J., 104. (5349) 264 VALUABLE CONSIDERATION Price \. Jenkins not fully followed in Ireland. Conveyance of freeholds and assign- ment of leaseholds, whether voluntary under 27 Eliz. c. 4. ing Act of 10 Car. 1, seas. 2, c. 3, the decision in Price v. Jenkins (b) has been reviewed and not followed to its full extent. In In re Greer (z) it was held that an assignment of leaseholds subject to a substantial rent and to onerous covenants undertaken by the assignee was not voluntary. fiut in the case of Lee v. Mathews (a), decided in the [* 259] Irish Court * of Appeal in 1880, where the as- signment of a lease subject to a rent of £1 10s. yearly was in consideration of 5s. and natural love, and the deed contained no covenant by the assignee, the prin- ciple of the decision in Price v. Jenkins (b) was dis- sented from, and the deed was held voluntary. It was there said by Chief Justice May that the de- cision in Price v. Jenkins (b) amounted to the simple legal axiom that no assignment of a leasehold subject to any rent could possibly be voluntary, so as to be in- valid against a subsequent sale ■ for value, irrespective of the amount of rent and value of the property. The real question, it was said, is, Was the dealing with the property a bargain, or a gift? A gift of a valuable in- terest in land is not the less a gift because the property so given carries with it certain obligations. The gift is diminished, but its character is not changed. It has not been expressly decided whether a settle- ment which is both a conveyance of freeholds and also an assignment of leaseholds can be supported as for value under 27 Eliz. c. 4, either wholly, or only as to the leaseholds, merely because the assignee becomes lia- ble to pay the rent and perform the covenants of the lease ; this seems to depend in a great degree on the relative value of the freehold or leasehold properties. In such a case, it will be observed, there is no question of fraud ; the effect of upholding the settlement as for value is merely to destroy the settlor's power of selling the property by virtue of that statute (c). (z) 11 Ir. E. Eq. 502. (a) L. R. 6 Ir. 530; and see Gardiner v. Gardiner, 12 Ir. C. L. 365, where an express covenant in an assignment of leaseholds per se was held not to he a valuable consideration; followed also in Hamilton v. Molloy, 5 L. R. Ir. 339; Rorlce's Estate, 15 Ir. Ch. R. 327. (6) 5 Ch. D. 619. (c) In re Eidler, 22 Ch. D. 81, 82 : In re Marsh and Earl Gran- ville, 24 Ch. D. 11, 18, 21, 25, 26 ; In re Lulham, 32 W. E. 1013, S. C, affirmed on a different point, 33 W. R. 788. (5350) IN SETTLEMENTS. 265 The question what is a good consideration under 13 Good con- Eliz. c. 5, and what is a good consideration under 27 sideiution not Eliz. c. 4, it will be seen, is not always the same. always same under both statutes of So in Price v. Jenkins (d) a principle was laid down Elizabeth. applicable only to settlements of leaseholds liable to be impeached under 27 Eliz. c. 4 ; but this principle does not apply to such settlements if only liable to be impeached by creditors under 13 Eliz. c. 5. This important distinction was clearly pointed out in In rc jj t -^ er In re Ridler (e) by Jessel, M.E., who said that, treat- ing Price v. Jenkins (b) *as well decided,, it [ *260 ] had no bearing on cases under 13 Eliz. c. 5. He there examined the meaning of the term " good considera- tion" in the exception in 13 Eliz. c. 5 (/). That term could not mean that, if some obligations attaching to the property went to the new owner in exoneration of the settlor, that made the conveyance a conveyance for value. Cotton, L.J., pointed out that the decision in Price v. Jenkins (b) on 27 Eliz. c. 4, did not touch the question whether a settlement was or was not made with intent to defeat or delay creditors. The mere fact that the grantee in a conveyance of leaseholds became liable for the rent would not bring a conveyance of leaseholds made for no consideration within the exception in 13 Eliz. c. 5 (/), as made for good consideration. The real difficulty on this subject arises in questions Family ar- on family provisions and settlements, and mutual ar- rangements. rangements by persons having interests in the property settled, where their relative positions with regard to it, or other considerations arising between the parties, lend their aid to the equitable consideration which is said to attach to such settlements as are made in the dis- charge of a moral obligation or as the provision for a family (h). Where the limitations impeached as voluntary form Limitations part of a settlement founded on the consideration of in marriage marriage, it frequently happens that, although they do settlements, not come directly within, and are not properly speaking ( considera- a 'valuable consideration, although he did not suhstan- tion. tially part with anything (?■). The consideration de- pends, not so much on whether the concurrence passed any interest, as on whether it enabled a settlement to be made which could not otherwise have been ef- fected (s). Concurrence [ * 263] *So even the concurrence of a married wo- of ferae man has been held to be a valuable consideration with respect to property settled to her separate use, without power of anticipation; for it enured to release the trus- tees from all claims as to past income, though she could not pass or affect any future interest (t). Myers v. Duke ^ n a caBe ( M ) before the Lord Chancellor of Ire- of Lei nster. land (v) two separate estates were the subject of a family settlement. Of one of these the father was seised in feef subject to certain equities to which his son W. W. H. was entitled; of the other estate the father was tenant for life, with remainder to his son W. "W. H. in tail. The father being embarrased, these estates were conveyed to trustees in trust to receive the rents, and thereout to pay advances then made and thereafter to be made by D. L. for payment of debts or incumbrances, and, at the request of D. L. to raise by sale or mortgage sufficient sums of money to pay D. L. what might be due him; the residue to be subject to such annuity for the father as D. L. should appoint, and to raising £30,000 for younger children (subject (r) Sug. V. & P. 14th ed. 719 ; Myddleton 'v. Kenyon, supra : Roe v. Milton, 2 Wils. 356 (where, although the settlement was on marriage, the same principle applies ; see post, pt. iv. ch. iv.); Hill v. Bishop of Exeter, 2 Taunt. 69 ; Gully v. Bishop of Exeter, 5 Bing. 171, 2 Moo. & P. 105, 266, 276 ; Acraman v. CorbelL 1 J. 6 Hem. 410. is) Harmanv. Richards, 10 Hare, 81, 87. t) Harman v. Richards, 10 Hare, 81 • post, p. 269. u) Myers v. Duke of Leinster, 7 Ir. Eq. E. 146. v) Sir Edward Sugden. (5354) IX SETTLEMENTS. 269 to restriction by D. L.), and to annuity to the son, W. W. H. during his father's life; and after the father's death, and so soon as the incumbrances and £30,0U0 for younger children were paid, to W. W. H. in fee. There being no evidence of mala fides, this deed was upheld against creditors of the father as a valuable bargain between father and son. So, again, a bill by creditors of a tenant for life of Walcefield v. real estate impeaching part of a family arrangement Gibbon. whereby the tenant for life surrendered his interest and assigned certain policies on his own life (subject to certain charges) to his son, in consideration of the son, who was tenant in tail in remainder, and who had previously joined with his father in raising money on mortgage for his father's benefit, paying off certain charges on the life estate and providing an annuity for his mother, was dismissed with costs (w). But the concurrence of a necessary party in a convey- Concurrence ance does not amount to a consideration for a limita- of necessary tion when, from the * interests of the parties [ * 264] party only and from other circumstances, it is shewn not to have supports that been made for the benefit or at the desire of such party, was K i ve n and that the concurrence of such party was not part of the contract (x). Tenant for life and remainderman cannot resettle the Settlement to estate to the survivor in fee so as to prevent them both survivor in from selling to a purchaser (y). So where H., tenant fee by tenant for life of copyhold, and B., remainderman in tail, with ioT u f e and remainder to H. in fee, intending to join in an abso- man lu'e sale to L., suffered a recovery to the use of H. for life, remainder to B. for life, remainder to the right heirs of the survivor, and then joined in conveying to L., the purchaser for valuable consideration, in fee; it was held that the contingent remainder to the survivor in fee was void against L., though, had it been good, it would not have passed to L. by the surrender (x). The mere fact that the grantor in a settlement was settlement first tenant in tail under a prior settlement with re- by successive mainder to the grantee in tail will not support the tenants in tail. (to) Wakefield v. Gibbon, 1 Giff. 401 ; and see Bennet v. Bernard, 10 Ir. Eq. R. 584. (a;) Doe v. Bolfe, 8 A. & E. 650. (y) Tarleton v. Liddell, 17 Q. B. 390; Doe v. Bolfe, 8 A. & E. 650; Sug. V. & P. 14th ed. 716. 23 STAT, op eliz. (5355) 270 VALUABLE CONSIDERATION Must be fair exchange. Tarleton v. Lidyell.' limitation to the grantee as valuable; for he gave up no interest, and in fact had none as against the first tenant, if he chose to bar the entail (a). There must be something like a fair interchange of interests, and the mere fact of a settlement being made by persons who have interests in the property, and of their altering those interests by the resettlement, 'will not necessarily make it valuable. In Tarleton v. Liddell (b), under a marriage settle- ment, J. T. was tenant for life, with remainder to his wife for life, remainder to his first and other sons in tail, remainder to his wife's father in fee. He had several sons, and on J. C. T., the eldest, coming of age, J. T. and his wife, and J. C. T., the son, joined in a recovery and resettlement, under which the estate was conveyed to J. C. T., the son, and his heirs, during the life of J. T., the father, remainder to J. T.'s wife for life, remainder to J. C. T. for life, remainder to his first and other sons in tail male, with remainders over to the other children of J. T., to whom the ultimate remainder in fee was limited. [ * 265 J By this deed, it will be seen, J. T., the fa- ther, gave up his valuable life interest in possession, and only took back remote limitations to his other chil- dren, with remainder to himself in fee. It was there- fore, in fact, almost equivalent to a voluntary settle- ment by him of his life interest on J. C. T., the son ; and as he was at the time in embarrassed circumstances the transaction was held void against his creditors as being voluntary. In this case the resettlement by the father and son, being a fraud on the father's part against his creditors, was set aside against them. That which was the in- ducement to the son to execute the resettlement was taken away, and therefore, there being no other con sideration, the father's fraud was held to vitiate the whole transaction, and the sons part in the resettlement — his giving up his estate tail, and taking back an estate for life, with remainder to his first and other sons in tail — was held voluntary and void against a subsequent purchaser from the son (c). (a) Cormick v. Trapand, 6 Dow. 860. (6) 17 Q. B. 390, S. C. 4 De G. & Sin. 538. (cJTarleton v. Liddell, 17 Q. B. 390, 4 De G. & Sin. 538 ; Sug. V. & P. 14th ed. 719. (5356) IN SETTLEMENTS. 271 Id Baker v. Bradley (d) it was said by Lord Justice Baker v. Turner: "Transactions between parent and child may Bradley. proceed upon arrangements between them for the set- tlement of property or of their rights in property in which they are interested. In such cases this court re- gards the transaction with favour. It does not minutely weigh the considerations on one side or the other. Even ignorance of rights, if equal on both sides, may not avail to impeach the transaction." But if the exchange of interest does not appear at all fair, or the ignorance of rights be one-sided, even the favour accorded by Courts of equity to family settlements will not avail to support them. In Fane v. Fane (e) a son, tenant in tail in remain- Taney. Fane. der, joined with his father, the tenant for life, in reset- tling the family estates. The son was mainly induced to do so by an innocent misrepresentation of his father that a charge of £5000 upon the estates was not (as was the fact) a subsisting charge, but that the father had the power to create it. The release of this sup- posed power to charge by the father was the chief con- sideration for the execution of the deed by the son. It was held by Hall, V. C, that the * son was [ * 266 ] entitled to be released from the resettlement by reason of the mistake, notwithstanding the general rule in favour of family settlements. The father by the reset- tlement obtained very substantial benefits ; and gave up his right to charge portions, which was not, under the circumstances, a very substantial thipg. In the re- settlement there was no provision for the son at all, and 6ome of the limitations in the original settlement were struck out. By the resettlement an ultimate power of appointment was reserved to the survivor of the fa- ther and son, which was a very substantial benefit, for it was a power exercisable at once. It is a well-settled principle that in questions on the Considera- statutes of Elizabeth considerations not mentioned in a tions not deed may be resorted to, both at law (/) and in equity mentioned in (g), to support it, provided they be not inconsistent gupmr^tTf with what appears on the face of the deed (h). no t inconsis- (d) 7~De G. M. & G. 620. '. tent with it (e) L. R. 20 Eq. 698. (/) Gale v. Williamson, 8M.&W. 405, 409-411. (g) Barnardiston v. Simpson, post, Appendix No. VII ; Ford v. Stuart, 15 Beav. 493; Pott v. Todhunter, 2 Coll. 76, 84; Scott v. Scott, 18 Jur. 755. (h) Lord Punket, in Nixon v. Hamilton, 2 Dr. & Wal. 385 ; see (5357) tions. ' 272 VALUABLE CONSIDERATION : Parol evidence of such consideration dehors the deed may be adduced to establish it (i) ; but to support a deed voluntary on the face of it against creditors or purchasers the proof of valuable consideration must be clear and free from suspicion (k). Nominal con- The expression of a nominal consideration, and no sideration. general words, is not inconsistent with the fact that . money or money's worth was the real consideration (I) ; but it is usual in post-nuptial settlements and deeds of "Divers good gift generally to insert the words "and for divers good considera- considerations " (m). This is not only for the purpose of letting in the averment of considerations not appear- ing * in the deed (n), and deterring pur- [ * 267 ] chasers and mortgagees from dealing with the property on the assumption of the settlement being voluntary ; but also because, although such words do not amount to any evidence of a valuable consideration, nor do they, without more, raise a prima facie case in favour of the deed, yet where a prima facie case is raised on the deed the onus of proving thai; there was no valuable consideration would be on those disputing the deed (o). Where a settlement after marriage was expressed to be in consideration of " 5s. and divers other good and valuable considerations," and no evidence of value was adduced by those supporting, or of want of value by those impeaching, the deed, an inquiry was directed whether the deed was founded on any and what valu- able consideration (p). Chapman v. Emery, 1 Cowp. 278; Ferrars v. Cherry, 2 Vera. 384; Senhouse v. Earle, Ami. 285; Cohnan v. Sarrel, 1 Ves. Jun. 50, 51; Leifchihls's v. Case, L. E, 1 Eq. 231; Doe v. Sherlock, Fox & Sm. (Ir. Rep.) 90 ; Langley v. Brown, 2 Atk. 195, 202, 2 Phil. Evid. 8th ed. 761; notwithstanding Peacock v. Ilonk, 1 Ves. 128; Clark - son v. Hanway, 2 P. W. 204 >"and Watt v. Grove, 2 Seh. & Lef. 501. (i) Rex v. Inhabitants of Seammonden, 3 T. R. 474; Rex v. In- habitants of Laindon, 8 T. R. 379, 382; Filmcr v. Gott, 4 Bro. P. C. by Toml. 230, Tayl. Evid. 8th ed. 969; Ilarman v. Richards, 10 Hare. 81 ; Bayspoole v. Collins, L. R. 6 Ch. 228 ; Mullina v. Guilfoyle, L. R. 2 Ir. Ch. 95. (k) Graham v. O'Keefe, 16 Ir. Ch. Rep. 1,14; Levy v. Creighton, 22 W. R. 605; ante, p. 219. (I) Leif child's Case, L. R. 1 Eq. 231; Coultwas v. Swan, 19 W. R. 485. (m) Dav. Prec. 4th ed. vol. 1. 64. (n) Rex v. Inhabitants of Seammonden, 3 T. R. 474 ; Rex v. In- habitants of Laindon, 8 T. R. 379-382; Bishop of Exeter v. Gully, 5 Man. & R. 457, 491-2. (o) Per Lord Hatherley (then Sir W. P. Wood, V.C.) in Kelson v. Kelson, 10 Hare, 385, 388; ante, p. 84. (p) Gully v. Bishop of Exeter, 2 Moo. & P. 266, 5 Bing. 42; and see Kelson v. Kelson, 10 Hare, 385, 388. (5358) HOW PROVED'. 273 Although a conveyance for fictitious consideration Natural love, may not afterwards be set up as a gift (q), a grant to &c., not in- a relation, though expressed to be made in considera- consistent tion of natural love and affection, may be averred and a ^ e con . " shewn to have been made in consideration of the mar- sideration. riage of the grantee (r), or other valuable considera- tion (s) as payment of debts (t), such consideration not being inconsistent with that alleged. It is not in con- tradiction of the expressed consideration to prove a larger consideration than that mentioned (u) ; though Proof of such words as " and for divers other good causes," &c, larger con- were not used (v). It may be shewn that the consid- eration stated to have been paid in money was paid, not in money, but in goods (w). A bond given to his father by a son, binding him in Bond a penal sum of £500 to support his father's wife dur- supported by ing her life, and his other children until they respec- de ^ d ? ot tively arrived at the age of * eighteen, has [ * 268 ] \% errlng been held a sufficient -consideration to support against creditors an assignment by the father to him of his dwelling-house, business, stock-in trade, and household furniture, by a deed in which there was no reference to the bond, and which was expressed to be in considera- tion of natural love and affection only (as). The question whether the consideration is valuable, Considera- or not, is to be decided by the circumstances at the tion to be time the deed which is impeached was executed (y) ; decided .at and not by the light of subsequent events. If, then, jj^tls & " the consideration be something future or contingent, executed, and, after the execution of the deed, it fails, the deed is not thereby avoided (z). It has been held in Ireland, in Paget v. Paget, (a) Paget v. — -> Paaet (q) Bridgman v. Green, 2 Ves. 627-8, 2 Com. Dig. 640 ; lnlmer v. Gott, 4 Bro. P. C. 230 ; Hughes v. Seanor, 18 W. R. 108, 1122. (r) Tanner v. Byne, 1 Sim. 166. (s) Doe v. Sherlock, Fox & Sm. (Ir. ) 79, 90 ; Harmon v. Rich- ards, 10 Hare, 81 ; contra, Ball v. Burnford, Prec. Ch. 113 ; Coult- was v. Swan, 19 W. R. 485. (0 Attwell v. Harris, 2 Ro. Rep. 91, 2 Ro. Ab. 790. (it) Clifford v. Tarrell, 1 Y. & C. Ch. 138, S. C. 9 Jur. 633. (v) Barnardislon v. Simpson, post, Appendix No. VII. (w) Smith v. Battams, 26 L.J. Ex. 232. (x) Gale v. Williamson, 8 M. & W. 405. (y) Hitchcock v. Giddings, 4 Prec. 135 ; Hanks v. Pulling, 6 E. & B. 659 ; Nairn v. Browse, 6 Ves. at p. 758 ; Mortimer v. Cap- per, 1 Bro. C. C. 156, Fry, Sp. Pf. 2nd ed. 196 ; Mackie v. Her- bertson, 9 App. Cas. 337, 341, 343. (z) Co. Litt. 204 a. (a) 9 L. R. Ir. 128. (5359) 274 VALUABLE CONSIDERATION I for value, cannot after- wards become voluntary. A deed, then decided under 10 Car. 1, sess. 2; c. 3 (analogous to 27 Eliz. c. 4), that the failure by matter ex post facto of what was at the date of a conveyance of land an ade- quate valuable consideration will not operate retro- spectively, so as to render such conveyance liable to be defeated, under it, by a subsequent conveyance for value of the same land. It was said in that case by the Vice-Chancellor T "I apprehend that the imputed fraud under the statute must be presumed to have ex- isted, if at all, at the time at which the conveyance sought to be defeated was executed. It seems to me that the failure by matter ex post facto of what was at the time a sufficient consideration, cannot operate so as to create the supposed fraud retrospectively." A deed, however, which at the date of its,execution is voluntary, may become valid by force of subsequent events (b). Court looks at all the circum- stances. Harman v. Richards. Three dis- tinct deeds treated as forming one transaction and support- ing each other. In considering whether or not a deed is voluntary, the Court will take into consideration all the circum- stances under which it was executed and the relative positions of the parties, and will look at other deeds executed at the same time, if they appear to be part of the same transaction, although not mentioned in the impeached deed (c) ; and will take into consideration [ * 269 ] any evidence * which tends to throw light on the reasons and considerations for the settlement. Al- though there may be no proof, either by extrinsic evi- dence or by anything appearing on the face of the deeds, of any stipulations or agreement which there was suf- ficient consideration to support, yet several transactions may be viewed together, and the parties to them must be considered to have stipulated according to the rights which they had ; and any consideration which is found to exist will either support the whole transaction or none at all (d). In Harman v. Richards (d), under the will of her father, H. R. was entitled to the income during her life to her separate use, without power of anticipation, of a portion of his residuary estate, remainder to her chil- dren ; J. R., junior, was the only child. In 1842, Higgs, (b) Clarke v. Wfflott, L. E. 7 Ex. 317 ; post, pp. 314 et seq. \c) Thompson v. Webster, 4 Drew, 632, S. C. 4 De G. & J. 600; Ford v. Stuart, 15 Beav. 493 ; Harman v. Richards, 10 Hare, 81 ; Cornish v. Clark, L. K. 14 Eq. 184 ; In re Johnson, 20 Ch. D. 389, S. C. 51 L. J. (N.S.) Ch. 503, et infra. (d) Harman v. Richards, 10 Hare, 81, 88 ; Cornish v. Clark, L. E. 14 Eq. 184. (5360) AVHEN PROVED. 275 the surviving trustee of the will, sold out part of the fund, and lent it, with other moneys of his own, to J. R, junior, on the security of the joint and several promissory note of J. R., the father, H. R., and J. R., the son, and also on the security of the deposit of title deeds of property belonging to J. R., the father. In 1846 the three deeds were executed (each bearing date the 20th of January), which were taken to have formed one transaction. By the first, H. R., the mother, re- leased and assigned to Higgs, the trustee, her life es- tate under her father's will, in consideration of which Higgs covenanted to pay her an annuity of £250 for her life. By the second deed, J. R.,the son, assigned his reversionary interest under the same will in consid- eration of the release by Higgs of the money due to him, and of Higgs giving up the title deeds deposited as security. The third deed (which was the one im- peached by the bill) was in form a voluntary convey- ance, whereby J. R., the father, conveyed the property comprised in the deeds previously deposited, and a sum of money owing to him on mortgage, to trustees in trust for H. R. (his wife) for life, remainder to himself for life, remainder to the wife of J. R., the son, for life, remainder to her children by J. R. The bill was filed by creditors under a joint and several covenant (in a mortgage deed), entered into by J. R., the father, and J. R., the son. Sir G. J. Turner, V.C., said the deed, taken alone, was voluntary, *but that to decide the question it [ *270 ] must be considered whether that deed was to be taken by itself, or in connection with the purchases from the son and the mother ; that the question whether several deeds are to be taken as part of the same transaction must depend upon all the surrounding circumstances of each particular case, and not upon the simple fact whether the deeds are or are not by express reference grafted into or connected with each other ; and his Honour, on the facts of the case, came to the conclusion that the settlement and purchases were connected to- gether, and were, in fact, parts of the same transaction. Several circumstances, he said, lead to this conclusion — the delivery up of the deposited deeds, and the con- veyance (of the legal estate in another property) from the son to the father, tending to shew that the property was about to be dealt with, and the corresponding varia- tions in the money to be paid for the life interest, and in the property to be settled — directly evidenced the con- (5361) 276 CONSIDERATION nection of the transactions ; and his Honour thought there was sufficient consideration for the settlement, as it could not have been made without the concurrence of H. R, the mother ; so that although, her life estate be- ing fettered by a restriction on alienation, she could not pass or affect her future interest, yet she was compe- tent to, and did, release her trustee in respect of all claims for past income, The wife must be taken to have agreed with her husband that, if he would make the settlement, she would not interpose to prevent the title deeds (by which her interest was secured) from being delivered up. For, although there was no evidence of any such agreement, the parties must be considered to have stipulated according to the rights which they had. Family A settlement will sometimes be upheld, even against settlements creditors or purchasers, as a family arrangement; but to upheld if any .^ 1 ° ed ° u also bequeathed certain personal property to her for dition. her separate use. The will being clearly inoperative as to the rent-charge, and it being very doubtful whether it was valid as to the personality, the heir and next of kin made a partial sacrifice of their interests in order to carry the testator's intentions into effect, and with that view allowed the husband of A. G. H. to take out administration to the deceased; and the legacy which S. had attempted to bequeath was paid to the husband as administrator, and of that sum he retained a small part for his own use, and settled the remainder on his wife and children. At the time when this settlement was executed the husband was in insolvent circum- stances. But although the deed was on the face of it voluntary, it was upheld against the creditors of the husband, because the whole matter was arranged by a friend of the family, who took an immense deal of (») 2 Coll. 76. (5369) 284 CONSIDERATION Persse v. Persse. Past value, part love and affection. trouble, and by tact and good management, and obtain- ing the co operation of the persons interested in the es- tate, effected the arrangement of which the settlement was the result ; and did all this, not for the benefit of the husband, but in order to make a provision for the wife and children, and on the express terms that out of whatever he should be able to procure from the prop- erty he should have power to make such settlement on the lady and her family as he should think fit. " That such an agreement," said Vice-Chancellor Knight Bruce, "was for valuable consideration no man living can doubt." Indeed, it is strange that such a settlement should [* 279] ever have * been called in question by the hus- band's creditors, for the money settled was never liable to their claims, the husband never having had it actually in his power. It was first invested in Consols, and then stood in the names of third parties until the settlement of it was executed, and may therefore be said to come under the old rule, in force when money was not liable to execution (o), that a man might on a purchase have the estate conveyed on any trusts he thought proper (p). In Persse v. Persse (q) E. P., a man of advanced age, being heir presumptive of E. P. P. (then supposed to be a lunatic), and being under apprehension that • unfair means might be resorted to in the then state of mind of E. P. P. to deprive the family of the succes- sion to the estate in question, agrees with his eldest son, D. P., that D. P. should sue out a commission of lunacy against E. P. P., and carry on such other neces- sary suits and law proceedings at his own expense, but in the name of E. P. His father, by deed, in consid- eration of this agreement and of natural love and affec- tion, covenanted to convey all the estates which would descend to him on the death of E. P. P. to the use of himself for life, remainder for the benefit of D. P. and his heirs male by his then wife. ■ The commission was accordingly issued, E. P. P. was declared lunatic, and out of his estate D. P. was reim- bursed for his expenses. E. P. .was then sixty three years of age, the lunatic was forty, and D. P. younger. (o) Before 1 & 2 Vict. c. 110. (p) Fletcher v. Sedley, 2Vern. 490; wicke, 1 Ves. 130; ante, p. 20. (2) 7 CI. & F. 279, 317. (51570) disapproved by Lord Hard- IN FAMILY ARRANGEMENTS. 2S5 On the death of the lunatic, R. P., the father, entered into possession of the estate, and conveyed it to his sec- ond son, R. H. P., for valuable consideration. Lord Cottenham and the House of Lords held that as far as consideration was concerned tbere was sufficient to sup- port the deed. There was some consideration proceed- ing from the son. His prosecuting the suit and the father's inability to do so, from whatever cause pro- ceeding, shew that the covenant was not merely volun- tary, and the situation of the parties and the properties in question afford a complete answer to the objection that the consideration was inadequate. The son was in possession of the family estate, but as tenant for life only; from the relative ages of the father and of the son *and of the supposed lunatic, [ * 280] the probability was much in favour of the son, by the death of his father before the lunatic, succeeding as heir to whatever estate might descend from him; but there was a strong apprehension, and, as the event proved, a great probability, that without active meas- ures to counteract the fraudulent projects of others no part of the lunatic's estate' would descend to either of them. The father also was anxious to secure the re-union of the two estates, and to have them both settled in the same manner. The consideration in this and in other such cases is compounded partly of value and partly of love and affection, and is of such a nature that the ade- quacy of it cannot be estimated; and in this case the consideration was partly the services of the son in se- curing that which would otherwise probably have been lost, and partly the fairness of the arrangement, having regard to the manner in which at the time of the set- tlement it was likely that the estate would descend. Natural love and affection formed a small part only of the consideration, and therefore it was valid against the subsequent purchaser (r). It must be borne in mind, in regard to a voluntary No question deed, that, unless and until that deed is communicated of considera- te the party to be benefited by it, there can be no ques- tlon * . tion of consideration. For there can be no considera- cognizant of deed (r) Cornish v. Clark, L. R. 14 Eq. 184 ; In re Johnson, 20 Ch. D. 389, S. C. 51 L. 3. (N.S.) Ch. 503, ante, pp. 246, 247, 270 et seq. ; where fraud, aliter : Filmer v. Gott, 4 Bro. P. C. 230. 24 STAT. OF ELIZ. (5371) 286 CONSIDERATION IN FAMILY ARRANGEMENTS. tion unless either there is a contract in the first instance, or, failing that, such notice on the part of the person benefited by that deed after knowledge of it as changes his position. If, after the voluntary deed has been executed, its contents are made known to the person who takes the benefit of it, and acting upon the faith of it he substantially alters his position, and by so do- ing gives value to the donor, being the value the donor expected him to give, he has in fact accepted the volun tary deed as a consideration for the action he has taken on the faith of it. But so long as he has no knowledge of that deed it is impossible he can give value in that way (s). (s) In re Barker's Estate, 44 L. J. (N.S.) Ch., per Jesael, M.E., 487 ; Cracknall v. Janson, 11 Ch. D. 1 ; post, pp. 322 et seq. (5372) *CHAPTER II. [ *281 ] CONSIDERATION BETWEEN HUSBAND AND WIFE. The unity which at law was formerly presumed to exist Husband and in the case of husband and wife did not prevent a wife's power valuable consideration passing between them in equity, to contract independently of any contracts entered into before together, marriage, or on separation (t). As to property settled simply to the separate use of a married woman, she could enter into contracts, and do any other acts with respect to it, either in relation to her husband or strang- ers, as if she were a feme sole (u) ; and further in reference to any matter as to which she was placed in the position of a feme sole she was in a position to con- tract with her husband (v). It seems doubtful whether the common law doctrine Effect of of the unity of husband and wife (w) has been any Married further infringed upon by the Married Women's Prop Women's erty Act, 1882, than by excluding from its scope the cases ^% ei y e ' to which the provisions of that Act apply (x). The Act was not intended, said Cotton, L. J., to alter any rights excepting those of the husband and wife inter se (y). It would therefore appear that the common law doctrine still applies in cases between the husband and wife and a third person. The capacity of a married woman to contract in re- spect, and to the extent, of her separate property, and to (t) Cracherode v. Hallam, post, Appendix No. IX., 1 Bl. Com. 442 ; Clerk v. Nettleship, 2 Lev. 148 ; Hewison v. Negus, 16 Beav. 598 ; Arundell v. PJdpps, 10 Ves. 146. (u) Blake v. French, 5 Ir. Ch. 246, 257 ; Woodward v. Wood- ward, 3 D. J. & S. 672 ; 2 Eop. Husb. & W. 182 ; 2 Bright, Husb. & W. 220 ; Griffith, 5th ed. 20. (») Vansitlart v. VansiltaH, 4K. & J. 62, S. C. 2 D. & J. 249 ; Nicholl v. Jones, L. E. 3 Eq. 709 ; infra, p. 301. (w) Dias v. De Livera, 5 App. Cas. 123. (x) In re March, 24 Ch. D. 222, S. C. 27 Ch. D. 166 ; Symonds v. HaUelt, 24 Ch. D. 346 ; Butler v. Butler, 14 Q. B. D. 831, S. C. 16 Q. B. D. 374. (y)ln re March, 27 Ch. D., per Cotton, L.J., 170. (5373) 288 CONSIDERATION BETWEEN When restraint on anticipation is annexed to separate use. Married woman can- not contract if she has then no separate property. [ *282 ] sue and be sued, is by *this Act made the same as that of a feme sole (z). It is conceived that the lia- bilities by this Act imposed upon her do not affect her personally, but merely give remedies against her sep- arate property (a). But where the separate property belonged to a mar- ried woman, without power of anticipation, she had no power of disposing of it or dealing with it in any way, and therefore she could not make any valid contracts with respect to it ; 'nor did the possession of it enable her to make a covenant which could be enforced against her, whether entered into with her husband or other persons (6). With regard to property to which a restraint on an- ticipation is annexed, the Married Women's Property Act, 1882, has not enlarged a married woman's powers. Her inability to bind such property, by contract or cove- nant, has not been altered, it is conceived, by this Act (c). Under this Act a married woman may now enter into, and render herself liable in respect of, and to the extent of, her separate property on, any contract in all respects as if she were a feme sole (d). .Such contract or covenant may now be entered into by her with her husband with respect to her separate prop- erty as if she were a feme sole (e). It has been decided by Pearson, J., in In re Shakes- pear (/), that under the Married Women's Property Act, 1882, a married women can only enter into a bind- ing contract at a time when she has existing separate property. She cannot enter into a contract which will bind any possible future separate property, if at that time she has no existing separate property ; though of course her contract will bind after- acquired as well as (z) 45 & 46 Vict. c. 75, s. 1 (2) ; see Griffith, 5th ed. 16, 17. (a) Atwood v. Chichester, 3 Q. B. D. 722 : Griffith, 5th ed. 31, 39 ; 45 & 46 Vict. c. 75, s. 1 (5). (i) Walrond v. Walrond, Johns. 18. (e) 45 & 46 Vict. c. 75, ss. 1 (2), 19 ; Chapman v. Biggs, 11 Q. B. D. 27 ; In re Glanvill, 31 Ch. D. 532 ; but see In re Andrews, 30 Ch. B. 159. (d) 45 & 46 Vict. c. 75, s. 1 (2). (e) Butler v. Butler, 14 Q. B. D., per Wills, J., 834, 835, S. C. 16 Q. B. D. 274. (/) 30 Ch. D. 169. (5374) HUSBAND AND WIFE. 289 then existing separate property, if still in her possession when judgment is recovered against her. And of course she cannot bind by a contract *any separate [ *283 ] property to which a restraint on anticipation is an- nexed (g). But a married woman might before the Married Women's Property Act, 1882, and may now, validly contract with her husband or any other person as to property simply limited to her separate use (h), or any other property which she holds independently of her husband's rights, and which she has power to dispose of (i). Thus it is clear that the wife's giving up an old set- Giving up tlement made in consideration of marriage (fc), or a former jointure (I), is sufficient to support, as for valuable settlement. consideration, a new settlement on her, although the second includes property of much greater value than the first (fc). And it seems that, when a wife's right to dower out Release of of her husband's lands was less easily barred than it dower. now is, her relinquishing that right might constitute a valuable consideration between them (m). So where A.'s wife, who had a claim to an annuity charged on hia lands by a voluntary deed, or a right to dower, con- curred with her husband in a sale of some of his lands, and covenanted to levy a fine, and was induced to do so by other estates of her husband being settled on her and her issue, these articles were upheld as for suffi- cient consideration against a subsequent purchaser for value, although the wife, who covenanted to levy a fine, had died without doing so (n). But now the right to dower of women married since D ower Act. the 1st of January, 1838, has been placed completely (g) See Pike v. Fttzgibbon, 11 Ch. D. 454 ; supra, p. 282. (h) Scot v. Bell, 2 Lev. 70; Greene v. 0' Kearney, 2 Ir. C. L. 267; Hewison v. Negus, 16 Beav. 594 ; and see 45 & 46 Vict. c. 75, s. 1 (2). (/) See Joyce v. Hutton, 11 Ir. Ch. Rep. 123, reversed on appeal, 12 Ir. Ch. Rep. 71 ; and post, p. 293. (k) Scot v. Bell, 2 Lev. 70. (1) Cottle v. Fripp, 2 Vern. 220 ; and see post, pt. iv. Ch. v. (m) Jones v. Boulter, 1 Cox, 288 ; Lavender v. Blakstone, 2 Lev. 146 ; Hewison v. Jfegus, 16 Beav. 594, 598 ; Dawson v. Bank of Whitehaven, 6 Ch. D. 218. (re) Fitzmaurice v. Sadlier, 9 Ir. Eq. 595 ; followed by Blake v. French, 5 Ir. Ch. Rep. 246. (5375) 290 CONSIDERATION BETWEEN within the power of their husbands (o), it is appre- hended that a release of dower could hardly be relied on as any consideration for a contract. Property in Where husband and wife both have interests in one •which [ "* 284] property, it *is quite open to them to enter husband and into valid, and not voluntary, contracts with regard to wife have tbat pr0 p er ty (p). interests. "Wife'srealty. Mortgage of separate estate. Wife's con- currence. Thus, where the wife has a freehold estate in fee, the title to which accrued to her before the 1st of January, 1883 (g), both she and her husband have certain inter- ests in it; the husband receives the profits during* her life, and at her death may be tenant by the curtesy, but without her concurrence he cannot deal with the property either by way of sale or lease. Again, where a wife mortgages her separate estate, or property in which she has interests jointly with her husband, for her husband's benefit, in consideration of a settlement being made on her and her children, the settlement will be supported as on valuable considera- tion (r) ; for by such a settlement the husband's estate is exonerated, and he is not liable as a debtor to the wife's estate for the sum so raised by mortgage (s). It has been argued that, on account of the mixed in- terests which the wife has with her husband in such property, her concurrence must necessarily give a valu- able consideration to any settlement made of it, and that the consent of each to the alterations of their re- spective interests must be sufficient to support such an arrangement against creditors or purchasers. In Park- er v. Carter (t) Sir J. Wigram gave it to be under- stood that such was his opinion, though he did not actually so decide; and Lord St. Leonards, when Lord Chancellor of Ireland, distinctly laid it down that a settlement by husband and wife of the wife's property (o) 3 & 4 Will. 4 e. 105. Gavelkind lands are within the Act: Farley v. Bonham, 2 J. & Hem. 177. (p) See Craeherode v. Hallom, post, Appendix No. IX. ; Teas- dalex. Braiihwaite, 4 Ch. D. 85, S. C. 5 Ch. D. 630; In re Foster and Litter, 6 Ch. D. 87. See post, p. 290. (q) 45 & 46 Vict. c. 75, ss. 5, 25 ; Eeid v. Eeid, 31 Ch. D. 402. ()•) Carter v. Hind, 22 L. T. 116; Whitbread v. Smith, 3 DeG. M. & G. 727, 739, 740 ; Atkinson v. Smith, 3 De G. & J. 186. (s) Lewis v. Nangle, Amb. 150, S. C. stated 3 Sw. 212, n.; but see 45 & 46 Vict. c. 75, s. 3 ; Griffith, 5th ed. 51. (() 4 Hare, 409-10. (5376) HUSBAND AND WIFE. 291 could not be voluntary (u). But this ia opposed to what was said by Lord Eomilly, M.K., in Butterfield v. Heath (v), that "the case in Blackstone (iv) has settled the point, that a married woman is within the statute of 27 Eliz. In truth, if it had been decided otherwise, it would *have been to hold that, although a [ * 285] married woman can, with the assistance of her husband, and by complying with the forms provided by the stat- ute (x), make a good title to a purchaser for valuable cousideration of the lands of which she is seised in fee simple, yet that she cannot make a voluntary convey- ance of such lands." It has now been established that Settlement a settlement by a married woman of real estate of for value only which she was owner in fee is for valuable considera- if a bargain. tion or voluntary, according as the circumstances of the case shew that a bargain between husband and wife was or was not made (y). In an old case (z), where the wife joined with her £ aWv Bum- husband in letting in an incumbrance on her jointure ford. lands, and barring an estate tail, and the estate was settled on the husband for life, then on the wife for life, remainder to their sons in tail, remainder to their daughters in tail ; a creditor by judgment, prior to the settlement, claimed as against the limitation to the daughters, and my Lord Keeper (a) was of opinion that this might have made a good consideration for both, but it was not expressed in the deed to be any consid- eration for settling the estate on the daughters, but wab a voluntary gift of the wife to her husband, and there- fore the daughters' estates must be taken to be 'Volun- tary. At the present day at least the mere fact of the real consideration not being expressly stated in the deed would not prevent it from being effectual (b), but in cases of this kind the transaction must be shewn to have been a matter of bargain. («) Id MusJcerryv. Chinnery, 3 Law Eec. (N.S.) 290, 297, and inH. ofL. 7 CI. & F. 1. (?) 15 Beav. 408. See In re Foster and Lister, 6 Ch. D. 89. (w) GoodriqU v. Moses, 2 W. Bl. 1019. (x) 3 & 4 Will. 4 c. 74. (y) Greene v. O 1 Kearney, 2 Ir. C. L. R. 267 ; Tarleton v. Liddelt, 17 Q B. 390 : Ourrie v. Nind, 1 My. & Cr. 17 ; Hewison v. Negus, 16 Beav. 594 ; Teasdale v. Braithwaite, 4 Ch. D. 85, 5 Ch. D. 630; In re Foster and Lister, 6 Ch. D. 87 ; Shurmur v. Sedgwick, 24 Ch. D. 597. See post, pp. 289 et seq. (z) Ball v. Burnford, Prec. Ch. 113. (a) Sir Nathan Wright. (6) See ante, pp. 266, 267. (5377) 292 CONSIDEKATION BETWEEN Ex parte Cox. In Ex parte Cox (c) a husband and wife, while the wife was an infant, conveyed a freehold house of the wife to a purchaser for value. The wife did not ac- knowledge the deed ; the husband received the pur- chase-money. The purchaser contracted to sell the house, and his sub purchaser required the concurrence of the wife, then of age. The wife gave her concur- rence, after the husband in consideration of that had Wife's con- [ * 286 ] executed a billiof sale of * his furniture to a currence part trustee for her. The bill of sale was duly registered, of the an( j possession of the furniture was taken by the trus- m ' tee, although left in the house occupied by the husband and wife. The husband afterwards went into liquida- tion. It was held by Bacon, C. J., that the transaction was a bargain by the husband with the wife to enable him to perfect the title of the purchaser from him of that estate which was the wife's, and which, by reason of the deed which purported to convey it not having been acknowledged by her, had never ceased to be her estate. He bought her concurrence in, and confirma- tion of, the conveyance, and in exchange for it he agreed to transfer his furniture to a trustee for her. That was no fraud on his creditors. The fact that he was insolvent at the time did not render him incompetent to purchase the confirmation of his wife. If the husband is the sole agent, and, without any previous negotiation, merely obtained his wife's assent to the execution of the deed, and used it solely for the purpose of putting the property out of the reach of his creditors, the transaction will, subject to the question of the amount of charge on her property, be set aside. Where the transaction originates with the wife's friends, and is entered into for the purpose of paying off all the husband's debts, the settlement will be good (d) ; and an obligation entered into some time afterwards by the husband will be valid against creditors if in pursuance of a binding agreement made at the time of the wife's joining in the sale or mortgage (e). The wife's concurrence must have been part of the bargain, and circumstances of fraud will vitiate the (e) 1 Ch. D. 302. (d) Carter v. Hind, 22 L. T. 116, per Wood, V.C. (Lord Hath- erley) ; see also Muskerry v. Chinnery, LI. &G. (t. PI.) 182, S. C. on appeal as Sheehy v. Muskerry, 7 CI. & F. 1. (e) Clerk v. NetilegMp, 2 Lev'. 148, where the agreement seems to have been merely parol, but it was before the Statute of Frauds. (5378) HUSBAND AND WIFE. 293 transaction against creditors (/) ; but where husband and wife having a joint power of appointment, re- mainder to the husband in fee, exercised this power so as to raise the purchase money for another estate, which was settled in the same manner, this settlement was held not voluntary (g). * In the very early case of Goodright v. [* 287 ] Goodrightv. Moses (h) Joshua Eeade, tenant for life of the estate in Moses. question, Elizabeth, his daughter, tenant in tail in her own right, and her husband, Thomas Harris, cove- nanted to levy a tine (afterwards duly levied) and de- clared the uses to trustees and their heirs, in trust, as to the rent and profits, to Joshua Reade for life ; and after his decease, to be applied for the support and maintenance of Thomas Harris and Elizabeth his wife, and their children, during the life of the said Thomas Harris ; and after his decease for the maintenance of Elizabeth Harris and her children during her life, and at her death on trusts for the children and heirs of Elizabeth Harris. This settlement was held voluntary, and void against a subsequent purchaser. In In re Foster and Lister (i) this case was com- mented upon and dissented from by Sir G. Jessel, M.K. His Lordship pointed out that the question whether value was or was not given by the husband was not even argued, or referred to in the judgment ; and that the case could not, therefore, be considered a decision on the point. ' In Currie v. Nind (k) a married woman conveyed and Currier. appointed land (of which she was tenant for life, with Nind. remainder subject to her general power of appointment, remainder over) to a mortgagee to secure a sum of money, and, subject thereto, to her husband and her- self for their joint lives and the life of the survivor ; and after the decease of the survivor, in case there should be any daughters or younger sons of the mar- riage, upon trust to sell and divide the produce among them, with remainder to the general appointment of the wife, remainder to her right heirs. The hus- (f) Acraman v. Corbett, 1 j. & H. 410, 422-3 ; Carter v. Hind, 22 L. T. 116 ; and see Doe v. Bolfe, 8 A. & E. 650. (g) Acraman v. Corbett, I. J. & H. 410, 420 ; see also Doe v. Parratt, 5 T. R. 652. (ft) 2 W. Bl. 1019. (j) 6 Ch. D. 90-92. (k) 1 My. & Cr. 17. (5379) 294 CONSIDERATION BETWEEN band and wife afterwards joined in selling the estate, and the mortgage was paid off out of the purchase- money, and they all released their interest to the pur- chaser. It was held, that so .far at least as regarded the provision for daughters and younger sons, the set- tlement was voluntary ; and that the purchaser could, under 27 Eliz. c 4, make a good title on a subsequent sale by him, without shewing that there were no daughters or younger sons of the marriage. This case was also carefully examined in, in re Foster and Lister (I). Sir G. Jessel, M.E., shewed that the [ * 288 ] question of value * or no value given by the husband and wife was not really raised or decided in that case, and that 'it was plainly a voluntary settlement. Bulterfield v -'■ n Butterfleld v. Heath, (m) much the same point Heath. was decided. -There husband and wife joined in exe- cuting a post-nuptial settlement of the wife's property on the husband for life with remainder to the wife for ' life, and after the decease of the survivor, for all the issue of the marriage in such manner as the husband and wife should jointly appoint ; and in default of such appointment, to all the children of the wife as tenants in common in fee simple, with cross remainders between them, and in default of such childen to the husband in fee. Husband and wife subsequently mortgaged the prop- erty for a sum of £2500, with a power of sale, and with- out regard to the limitations of the settlement, and six months afterwards conveyed it to the plaintiffs as trus- tees, on trust to sell and distribute the proceeds of such sale among the creditors of the husband. The post- nuptial settlement was held voluntary against the plain ■ tiffs as purchasers (n). From this case also Sir Gr. Jessel, M.E., dissented in the case of In re Foster and Lister (o), holding that the settlement was for value, and not voluntary. His Lord- ship pointed out that the husband gave value and pur- chased for value that which he became entitled to under the settlement. The wife gave value by giving up her estate in fee, subject only to her husband's estate dur- (0 6 Ch. D. 92-95. ()») 15 Beav. 408. (n) On the question of the trustees being purchasers, see ante pp. 229 et seq. ' (o) 6 Ch. D. 95-96. (5380) HUSBAND AND WIFE. 295 ing coverture and estate by the curtesy; instead of this, she cut her estate down to an estate for life. Heivison v. Negus (p), as stated by Lord Romilly, Hewisonv. M.R., was as follows : — The settlement was post-nuptial, Negus. and was made by the husband of the first part, the wife of the second part, and two trustees of the third part. After reciting that the wife was entitled to a vested re- version in fee simple in one moiety of certain freehold and copyhold hereditaments, and that she and her hus- band had agreed to settle the same, the deed witnessed that they granted, * released, and confirmed [ * 289 ] to the trustees the freehold hereditaments (subject to the estate of the tenant for life), upon trust to pay the rents and profits of them to E . A. Negus, the wife, for her separate use, and without anticipation, upon her sole receipt ; and subject thereto, to the husband for his life ; and after the decease of the survivor for such per- sons as E. A. Negus should by will appoint, and in de- fault of appointment, to her children, as tenants in common in fee simple, with cross- executory limitations, in case of any one of them dying under twenty-one and without issue. The deed then contained a covenant by the husband to surrender the copyhold to the trustees on the trusts of the settlement, and the usual clauses to be found in such settlements (q). His Lordship said he entertained no doubt, upon the full consideration of this settlement, that it was exe- cuted by the wife for valuable consideration, and dis- tinguished the case from Goodright v. Moses (r) and Currie v. Nind (s), and from Butterfield v. Heath (t), which he had himself decided about twelve months be- fore. He said, " It is clear, both on principle and au thority, that a wife may in many respects enter into a contract for valuable consideration with her husband;" and the converse is true, "that a husband may become a purchaser from his wife of property belonging to her;" and thought the surrender by the husband of his right to receive the rents and profits of the, hereditaments (p) 16 Beav. 594. (g) See also Musketry v. Chinnery, LI. & G. (t. Sug.) 185 S. C. (House of Lords) as Sheehy v. Musketry. 7 CI. & F. 1, and see S. C. coram L. C. Sugden, 3 Law Eec. (N.S.) 290, 297; Greene v. O 1 Kearney, 2 It. Com. Law, 267 ; and see Cracherode v. Hallam, post, Appendix No. IX. (r) 2 W. Bl. 1019; et supra. (s) 1 My. & Cr. 17; et supra. (t) 15 Beav. 408; et supra. (5381) 296 CONSIDERATION BETWEEN during coverture, and his giving his wife a sole and exclusive power over them, was a valuable considera- tion sufficient to support this settlement. ThiB decision was affirmed by the Lords Justices, who considered the settlement was a bargain for value between the hus- band and wife; and therefore good against a subse- quent purchaser (u). Teasdale v. In Teasdale v. Braithwaite (v) real estate was devis Braithwaite. ed to an unmarried woman, with an expression of wish that, if she should marry, she should, before marrying, settle the estates for her separate use for life and to [* 290] uses as she should by will and * notwithstand- ing coverture appoint. She married, and, after a child was born, she and her husband, by deed acknowledged by her, conveyed the estates to trustees upon trust for the wife for life, remainder to the husband for life, re mainder to the children of the marriage as the husband and wife should jointly by deed or as the survivor should by will appoint; and in default of appointment to the children equally; and, if there was no child, to the wife in fee if she survived her husband, and, if not, to her brothers absolutely. The husband and wife, by deed acknowledged by her, afterwards mortgaged the estates without notice of the settlement. It was held by Bacon, V.C., following Heurison v. Negus (iv), and _ affirmed by the Court of Appeal (.r), that the settlement was for value, and good against the subsequent mortgagee. James, L. J., said: "TheVice- Chancellor correctly puts it thus: 'It is settled that if husband and wife, each of them having interests, no matter how much, or of what degree, or of what qual- ity, come to an agreement which is afterwards embod - ied in a settlement, that is a bargain between husband and wife which is not a transaction without valuable consideration.' " In re Foster The authorities on this subject were all carefully re- ared Lister. viewed in the case of In re Foster and Lister (y) by Sir G. Jessel, M.R. In that case freeholds belonging to the wife in fee (») 22 L. J. Ch. 655. (v) 4 Ch. D. 85, S. C. 5 Ch. D. 630. w) 16 Beav. 594. x) 5 Ch. D. 630. y) 6 Ch. D. 87. (5382) HUSBAND AND WIFE. 297 were by post-nuptial settlement, dated the 5th of De- cember, 1857, settled by husband and wife, by deed ac- knowledged by her, upon trustees to the use of the wife for life, and after her decease to the use of such per- sons as she should by will appoint, and in default of appointment to the use of her children, with power to her during her life to lease them at a rack rent, and with a power of sale and exchange in the trustees with her consent. The freeholds were afterwards mortgag- ed by husband and wife by deed acknowledged by her. Sir G. Jessel, M.R , held that the settlement was for valuable consideration. His Lordship said: "The only question before me is whether the indenture of the 5th of December, 1857, is a settlement made for value,or is voluntary, which depends,as I understand,simply upon two things: first of all, upon the construction of the set- tlement itself; and secondly, upon the law as to what a *voluntary settlement is. First of all, on the [ * 291 ] construction of the settlement itself, independently of the question whether the mere concurrence of the hus- band, his concurrence being necessary for the convey- ance of the wife's estate, is value on his part, there arises also the question whether he did not give up something. It is not a voluntary settlement if there is anything in the shape of consideration which can be called value. What, then, does the husband give up ? There were children of the marriage at that time; con- sequently, the husband was entitled by law to an estate for the remainder of his life as tenant by the curtesy. Thus the wife was entitled to the fee simple, subject, of course, to those interests in the husband. But she had no power to convey the fee simple, or to make any lease of any part of it, or to sell it without his concurrence. That was their position before the settlement. What is their position after the settlement? The husband loses his estate by the curtesy. He does retain, in a sense, his estate during the coverture, for, oddly enough, the limitation (whatever they intended) to the use of the wife is only during her life, without impeachment of waste, but it does not say for her separate use. The husband gives up not only the estate by the curtesy, but also the power of preventing the wife from alienating the estate during his life, so that, if she died in his lifetime, it would descend to the heir-at-law, most pro- bably his child, as he had several children by her." " On the other hand, what is the wife's position ? (5383) 298 CONSIDERATION BETWEEN The wife is reduced from being an owner in fee to a life estate, with a testamentary power of appointment, the estate going in default to her children. But she gains several things — a power of alienation in this sense, that she has the right to lease the property at a rack rent, which is reserved to her alone, and which is a valuable right, and she has a right to concur in a sale without her husband concurring at all. That power, which was in the husband, is now transferred to trus- tees, who may sell the life estate. How can anybody doubt that the positions of husband and wife were most materially altered by this settlement, and that what the husband gave to the wife was value as between him and his wife, and what the wife gave up was also value on her part?" [ * 292] *"As a question of principle, this is a bargain between husband and wife, altering their relative posi- tions as to the estate, and their relative rights and in- terests in the estate. What one gave up the other ac- quired, subject to default in exercising the power of appointment, which would carry it to the children. That being so, if there were no authority on the ques- tion, I should have said it was quite clear that it was an agreement lawful between husband and wife, and that the husband gave value, and that the wife gave value, and that therefore the settlement was one for valuable consideration, and was not within the statute, which only applies to settlements where there is no valuable consideration at all." Shurmur v. This case has been followed in Shurmurv.Sedgimck (z). Sedgwick. In that case a married woman, entitled under a will to freehold and leasehold property for her separate use, joined her husband in settling the same. The husband and wife conveyed the freeholds, and the husband alone demised the leaseholds, subject to a payment of Is. yearly if demanded, to trustees upon trust for the wife for life for her separate use, remainder to her husband for life, remainder to their children, if any, and the ultimate remainder to the wife absolutely. Two years afterwards, there being no issue of the mar- riage, the husband and wife mortgaged the property. It was held by Bacon, V.C., that as the husband gave no consideration for the settlement, and as the trustees (2) 24 Ch. D. 597; and see Schreiber v. Dinkle, 54 L. J. (N.S.) Ch. 241, S. C. affirmed W. N. (1886) 78. (5384) HUSBAND AND WIFE. 299 of the leaseholds undertook no liability beyond the nominal payment -of Is. if demanded, the settlement was clearly void against the mortgagee. It could not be argued that as the husband gave up his estate by the curtesy he gave up anything; for the wife could sell her estate, or a mortgagee from her could, without her husband's consent, and so could defeat her husband's estate. The same principles have been recently held to apply Same prin- in Ireland, where In re Foster and Lister (a) has been ciples in followed, in two cases under the Act of 10 Oar. 1, sess. Ireland. 2, c. 3 (b), which corresponds to 27 Eliz. c. 4. Where the property stands limited to trustees in trust When wife for the *wife for life, with remainder in trust [* 293 ] has WQole for such persons as she may appoint by will or deed, ^g r a co ' n . the whole estate and power of disposition are in her curre nce not alone, so that any settlement of it by her must be vol- valuable, untary (c); and where the limitations themselves do not shew that the settlement was a matter of contract and exchange, the mere consent of the wife to it (d) does not make it valuable (e). But where (/) husband and wife tenants by entireties Atkinson v. in fee simple, mortgaged by feoffment and fine, and by Smith. the proviso for redemption the land was to be recon- veyed 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, and on paying off the mortgage a reconveyance was taken to the use of the wife for life, with remainder to the use of the husband for life, with remainders in favour of a daughter and her children ; Lord Chelmsford held that the limitations of the reconveyance were not voluntary, and not void against a subsequent purchaser. Neither the mort- gage nor the limitations on the reconveyance would have been good without the wife's concurrence, and (a) 6 Ch. D. 87. (i) Lynch v. Lynch, 4 L. R. Ir. 210; In re Bell's Estate, 11 L. K. Ir. 512. (c) Currie v. Nind, 1 My. & Cr. 17; In re Foster and Lister, 6 Ch. D. 87. (d) Under the statute 3 & 4 Will. 4, c. 74. (e) Ante, pp. 284, 285. (/) A tkinson v. Smith, 3 De G. & J. 186 ; but see now 45 & 46 Vict. c. 75, and In re March, 24 Ch. D. 222, S. C. 27 Ch. D. 166. (5385) 300 CONSIDERATION BETWEEN Unless necessary or contracted for. Husband's money ex- pended on wife's land though it will be seen she was a considerable gainer by the latter, still she gave something in exchange. Money laid out by the husband on land devised to his wife for life, remained to her children, or in default, &c, to her in fee, has been held a good consideration for a conveyance of it to the use of the wife for life, re- mainder to her children in fee, and, if no child, to the husband absolutely (g). ate estate. Contract as to Where (h) a wife was entitled to certain property -wife's separ- for life for her separate use, remainder to the husband for life, with remainder to their children as they should appoint, and she conveyed her life estate to trustees for the benefit of her children, and the husband cove- nanted to assign his life interest if he should survive his wife, it was held on appeal (i), that this was such [ * 294] a contract as could *be enforced by the chil- dren against their father surviving his wife,. It was said the wife had a complete estate vested in her, inde- pendently of her husband, which she might have sold for value to a stranger, and with respect to which she, therefore, stood in the position of any person in the community possessed of property. Her husband had the same ability in respect of his life estate, contingent on his surviving her. They were quite competent to contract with each other, and they agreed to do so for the benefit of the children; the wife to make her estate an immediate provision for them (whom the husband was legally bound to maintain), and the husband to make a provision for them, in the event, of his surviving her, and of which he would not be able to deprive them ; and that this was not a voluntary settlement, but a contract for valuable consideration, which the children, being equally purchasers (fc), were entitled to enforce. Settlement giving the same in- terests. Of course a settlement by husband and wife, where- by they merely take such interests as they would have been respectively entitled to without any settlement, cannot but be voluntary (I). (g) Crofts v. Middleion, 2K.&J. 194 S. C. 8DeG. M. & G. 192 (h) Joyce v. Button, 12 Ir. Ch. Rep. 71. (i) Reserving the decision of the Master of the Rolls, 11 Ir Ch. 123. (k) Davenport v. Bishopp, 2 Y. & C. Ch. 451, 460, S. C. 1 Phil. 698 ; post, pp. 336 ; pt. iv. ch. iv. ; and see Greene v. 0' Kearney, 2 Ir. C. L. Rep. 267. ' (1) Hollowayv. Headington, 8 Sim. 324; Acraman v. Corbeit, 1 J. & Hem. 410, ante, pp. 286, et seq. ; Shurmur v. Sedgwick 24 Ch. D. 597, ante, p. 292. (5386) HUSBAND AND WIFE. 301 It will be seen from these cases that a settlement be- Consider- tween husband and wife of the wife's property will be ation moving deemed made for valuable consideration if the husband J™™ nus " can be shewn to have given up any interest in that property. In Teasdale v. Braithwaite (m) the wife was seized in fee of the real estate and not as her sep- arate property, so that her husband's consent to her alienation of it was necessary. So in In re Foster and Lister (?i) the wife, as seised in fee could not convey that estate in fee, or lease any part of it, without her husband's concurrence ; and therefore the estate by the curtesy of the husband was a thing which he could bargain with. It may have been a question before 1883, whether the mere concurrence of the husband could operate to create a valuable consideration (o), quite apart from his giv- ing up any interest. *The importance of this class of cases has [* 295] importance been very greatly lessened by the Married Women's of such cases Property Act, 1882. By this Act a woman has, holds, g reatlv and can dispose of all property, real or personal, as jjarri'ecl ^ her separate property (p) which belongs to her at her Women's marriage, or which she acquires or which devolves on Property Act, her after her marriage, if she has married after 1882; 1882 - and can so have, hold, and dispose of all property her title to which has accrued after 1882 if she married before January 1, 1883. But it seems clear that the right of a husband mar- ried after 1882 to alienate his wife's chattels real by act inter vivos, and the necessity for his concurrence in her disposition of the legal estate in real property, are now destroyed. The question has not yet been decided, whether or not the husband will, under this Act, still have an estate by the curtesy; it is conceived that he is not de- prived by this Act of such a right in cases in which he was before this Act entitled to it (q). (m) 4 Ch. D. 85, S. C. 5 Ch. D. 630. (ji) 6 Ch. D. 87. (o) 6 Ch. D. 87 ; hut see now 45 & 46 Vict c. 75, and Goodchild v. Douglas, 3 Ch. D. 652, 654. (p) 45 & 46 Vict. c. 75, ss. 3, 5; Griffith, 5th ed. 14, 42, 58. , (q) See Griffith, 5th ed. 10, 58, 59; but see Wolstenholme, Conv. Acts, 4th ed. 9. 25 STAT. OF ELIZ. (5387) 302 CONSIDERATION BETWEEN The case of Shurmur v. Sedgwick (r) would appear to be a leading authority on this question, and decides that even if the husband has an estate by the curtesy in his wife's separate property, that is not an interest with which he can bargain so as to support a post- nuptial settlement by the wife of her property as made for value. In the case, therefore, of a woman who has married after 1882, a post-nuptial settlement by her cannot now be supported as made for valuable consideration on the ground of a bargain between her and her husband to modify his interest in her property; inas- much as he now acquires by virtue of the marriage no interest whatever in her property (s), and therefore ac- quires no interest with which to bargain. Bargain may Of course, the principles of Teasdale v. Braithicaite still exist if (t), and In re Foster and Lister (u) will still apply in woman an y case j n w hich the marriage took place before 1883, ^fonVSSS [ * 296] and the married woman first *acquired her in- terest in the property the subject of the settlement be- fore 1883 {vj. Wife's dto- ^ property, real or personal, of the wife's was con- perty which sidered as belonging to the husband in her right; but husband as to such of it as he could not obtain complete posses- could not get s j on f -without the assistance of a Court of equity, that aid*oi' euuity Court would not assist, nor, if the wife should dissent, would it allow, the husband to recover or receive such property without his settling on his wife and children such a proportion as, under the circumstances, the Court considered right (w). Effect of By the Married Women's Property Act, 1882 (x), the Married operation of this right of a married woman to an equity PropertyAet *° a settlement is entirely confined to the case of such 1882. women as have married before January 1, 1883, and whose title to the property in question has accrued be- (r) 24 Ch. D. 597. (s) 45 & 46 Vict. c. 75, s. 2; supra, p. 223. (I) 4 Ch. D. 85. («) 6 Ch. D. 87. (v) 45 & 46 Vict. c. 75, s. 5; Beid v. Eeid, 31 Ch. D. 402; and In re Tench's Trusts, 15 L. R. Ir. 406. (w) Elibanh v. Montolieu, 5 Ves. 737; Sturgis v. Champncys, 5 My. & Cr. 97; Gleaves v. Paine, 1 De G. J. & S. 87; see 1 Wh. & Tu. L. C. 6th ed. 486 et seq.; Knight v. Knight, L. E. 18 Eq. 490. * (x) 45 & 46 Vict. c. 75, ss. 1 (1), 2, 5; anil see Griffith, 5th ed. 42, 57, 110-111; Edwards & Hamilton, 243 et seq. ; supra note (v). (5388) HUSBAND AND WIFE. 303 fore that date. For all property -which either belongs to a woman at the time of her marriage, or which she acquires or which devolves upon her after marriage, is, if she has married after 1882 by this Act declared to be her separate property. This rule of equity — the wife's equity to a settle.- Equity to , ment — was founded on the principle that he who seeks settlement. equity must do equity (y); and the jurisdiction to compel the husband, or those claiming under him, to make a settlement, at first arose upon his coming to the Court for assistance. The right was personal to the wife, and might have been waived by her, even after Waiver of. she had taken steps to enforce it (z). It appears that where a settlement has been made in Contracts pursuance of an order enforcing the wife's equity, the founded on. Court will support it as a good settlement for valuable consideration (a). *In WheelerY. Caryl,(b), on equity reserved, the [*297] Wlieelcr v. question was, whether a settlement by Mr. C. on his wife, Caryl. after marriage, was voluntary and fraudulent against creditors. Lord Hardwicke said, Mrs. C. was entitled, as daughter of Lord M., to a moiety of £12,000, se- cured by her mother's marriage settlement, subject to the contingency of being lessened by the birth of an- other daughter ; a marriage was clandestinely had with Mr. C. ; after that, Lord M. secured the £6000 on his estate, and Mr. C. made a settlement on his wife. She was entitled to £6000, and no evidence appears that her father intended her further bounty. There are general principles well known that marriage is a valuable con- sideration, and that post-nuptial settlements may, by other considerations, become good and for valuable con- sideration ; and that if a young lady is entitled to a Post-nuptial trust term, which the husband cannot lay hold of and settlement of possess nor get at without the assistance of this Court, Pi^to '"ood if the trustees will not raise the portion, and the hus- band comes for aid here, the Court will decree an ade- quate settlement to be made on the wife, and will sup- (y) Bosvil v. Brander, 1 P. Wms. 459; Sturgis v. CJtampneys, 5 My. & Cr. 97. (2) See Barrow v. Barrow, 4 K. & J. 409, 424; Seton, 4th ed. 676, 680; Slackpole v. Beaumont, 3 Ves. 89; and see Elworthy v. Wiclstead, 1 Jac. & W. 69; Hedges v. Clark, 1 De G. & S. 354; and Britten v. Britten, 9 Beav. 143. (a) Moor v. Rycault, Prec. Ch. 22; post, p. t. iv. Ch. v. (5) 1 Amb. 121. (5389) 304 CONSIDERATION BETWEEN port it as a good settlement, for valuable consideration. The Court has gone further ; if after marriage, the wife being entitled to such a portion, which the husband cannot touch without the- aid of the Court, and the trustees will not pay it without the husband making a settlement ; if the husband does agree to it, and do that which the Court would decree, it is a good settlement against creditors. Settlement of This is the point as to which this rule of equity— the wife's equit- wife's right to a settlement — is important with regard able property to ^he statutes of Elizabeth, viz., that a settlement by 1 ' '' the husband of so much of his wife's equitable prop- erty as would have been enforced against him by the Court, if he had tried to obtain possession, will be con- sidered a^ a binding settlement, good against his cred- itors or subsequent purchasers from him(c). when good . against creditors or purchasers. Case in I Q a oase ( d ) in Ireland before Lord Plunket, a mar- Ireland, ried woman was entitled to a third of a sum of £6000 charged on lands, and which had been appointed by [ *298 ] will in her favour, in exercise of a *power to charge contained in a previous settlement. Before any of her share was paid, her husband conveyed to trus- tees £1200, part of the said charge of £2000, in trust for his wife if she should survive him, and after her death for the issue of the marriage. Afterwards the husband assigned the charge to a creditor of his own to secure a debt and a further advance, and the issue of the marriage, being ignorant of the settlement and of their rights thereunder, joined with their father in this deed for the purpose of giving a further security, The creditor to whom the charge was assigned was, it ap- pears, aware of the settlement (e). It was held that the settlement on the wife and children was good against the creditor claiming as a purchaser. His Lordship said it was quite untenable to say that this deed was a voluntary assignment ; it was made un- der a conscientious obligation, and that settlement can- not be considered as voluntary or fraudulent which the party might have been compelled by a Court of equity to execute. The husband there had done, not merely (c) Moor v. Bycault, Prec. Ch. 22 ; Hinton v. Scot, Mosely, 336 ; 3Iiddlecome v. Marlow, 2 Atk. 520 ; and see Moniefiorc v. Behrem, L. R. 1 Eq. 171. (rf) WCliniock v. Ashe, 2 Law Eec. (N.S.) 45. (e) See S. C. in the C. B., 1 Law Eec. (N.S.) 145. (5390) HUSBAND AND WIFE. 305 an act which he was under a moral obligation to per- form, but one which he might have been compelled to do ; and the question was, whether this could be consid- ered a voluntary and fraudulent assignment, being of a sum of money to which he was entitled in right of his wife as a charge upon certain lands ; and there was in- trinsic evidence on the face of the matter itself to shew that the deed was the consequence of a previous con- tract The husband says, " You could compel me to make a settlement, but if you give me £800 I will make a settlement of the residue ;" this seems a very fair ar- rangement, and cannot be said to be voluntary or fraud- ulent (/). The amount which can thus be validly settled by pri- The amount vate agreement between the parties is regulated to a thus protects certain extent by the amount which the Court would ed - have ordered to be settled at the suit of the wife, and must not include more than that. As the equity of the wife does not extinguish the legal right of the hus- band, and his existing creditors are entitled [*299] to all rights over the property which he could honestly have exercised, it is not too much to say that any settle- ment materially exceeding what the Court would have enforced would be void against them as to the excess (g) ; though it might have been thought that, taking into consideration the uncertainty of the parties, as to how much the Court might be willing to have settled, and also the expenses of a suit saved by the private ar- rangement, the amount settled under such circumstances would not be closely scrutinized. In Spirett v. Willows (h), however, where there was spi re a v . a post-nuptial settlement of property, out of which, as Willows. was decided in the same suit (i), the wife was entitled to have three- fourths settled on herself and her chil- dren, the settlement was set aside as void against the husband's creditor's, the question as to the wife's equity to a settlement being subsequently decided (i). On the other hand, it is evident that any settlement made by or on a married woman of property with re- (/ ) It -was also decided in the Court below that the subject of the settlement was personalty, and therefore on that ground also not within the statute. (g) See Pi-ingle v. Hodgson, 3 Ves. 617, 1 Fonbl. Eq. 275 ; Seton, 4th ed. 680. (A) 3 D. J. & S. 293. (i) 13 W. E. 1034, S. C. L. K. 1 Ch. 520. (5391) 306 CONSIDERATION bars her equity Any settle- gard to which she had an equity to a settlement, will ment on wife extinguish that equity although she takes nothing by it ; for such a settlement to be valid must be acknowl- edged by her under the Fines and Recoveries Act (fc), and will therefore be a waiver of her right. Besides this, the mere transfer of the property for such a pur- pose will bar her equity, for it will dispose it so that it can be got at without the assistance of herself or the Court ; in fact, the reduction into possession by the husband of his wife's choses in action must always bar her right to a settlement ; and any settlement of them made subsequently by the husband will not be good against creditors (I). Equity dies with her. Extends to children. Although the wife may, up to a certain point, waive her right to a settlement, and her children cannot after that insist on it, and if she dies without asserting her right her children have no power of enforcing it, yet where the wife insists on her equity it will always be extended to her children ; and when she has entered into a contract, or has obtained a decree for a settlement, [ * 300] the interests *of the children will not be de- feated if she die without waiving it (m). Under control of Court. The wife's equity to a settlement is an interest which the Court can and will control, and will not allow to be made an engine of fraud, or to be insisted on where it would be contrary to good conscience to do so ; so that where a wife is indebted before marriage it will not be enforced against her creditors (w), although it would against her husband's (o) ; and where she had been a party to a fraud by which a purchaser had been induced to take the property supposing it freed from any claim of the wife's against it, she was held to be precluded from her equity (p). Principle of Court. The principle on which the Court acts is to let in the equity of the wife and children, and to that extent to exclude the husband's marital right but not to interfere (k) 3 & 4 Will. 4, c. 74 ; but see p. 296. (DBylandv. Smith, 1 My. & Cr. 53; 20 & 21 Vict. c. 57 ; War- den v. Jones, 2 De G. & J. 76. 87. (m) Murray v. Elibank, 1 Wh. & Tu. L. C. 6th ed. 516 et seq. (n) Bonner v. Bonner, 17 Beav. 86 ; Barnard v. Ford, L. E. 4 Ch. 247. { o) Spirett v. Willows, L. E. 1 Ch. 520. (p) In re Lush's Trusts, L. E. 4 Ch. 591. (5392) IN SEPARATION DEEDS. 307 with the marital right more than is necessary for that purpose (q). The old rule was to divide the fund equally between The amount the wife and children on the one hand, and the hus- settled. band, or those claiming under him, on the other (?•). In modern times that rule has been considerably re- laxed, and considerable latitude has been assumed by the Court (s). The present rule is for the Court to consider all the circumstances of the case, and to exer- cise its judicial discretion as to the amount to be settled (t). The Court in special cases will order the whole fund to be settled : as where the husband is in- solvent or has deserted his wife, so that he is unable or refuses to maintain her (w) especially where the fund is small (v), orwhere * the husband has already [ *301] received part of the fund (w) ; or where the separation has been caused by the wife's ill-health, and the husband does not contribute to her support (cc). All deeds of arrangement entered into for the pur- Separation pose of altering in any material degree the relation deeds which the law establishes between husband and wife are attended with very great difficulty. They usually originate under circumstances of a distressing and se- rious nature, and they tend to sanction innovation on that relation from which both parties hoped to find the greatest degree of comfort and happiness (y). There is no analogy in the eye of the law between the contracts entered into on the commencement of the (q) Walsh v. Wason, L. E. 8 Ch. 482 ; Croxton v. May, L. R. 9 Eq. 404. (r) Beresford v. Hobson, 1 Mad. 362 ; Jewson v. Moulson, 2 Atk. 423 ; Worrall v. Marlar, 1 Cox, 153 ; Spirett v. Willows, L. R. 1 Ch. 520 ; Seton, 4th ed. 680. (*) In re Suggilt's Trusts, L. R. 3 Ch. 217, 218. (0 Taunton v. Morris, 11 Ch. D. 781. fit) Brett v. Greemoell, 3 Y. & 0. Ex. 230 ; Gardner v. Marshall, 14 Sim. '575 ; Gilchrist v. Cator, 1 De G. & Sm. 188 ; In re Cutler, 14 Beav. 220 ; Layton v. Layton, 1 Sm. & Giff. 179 ; Francis v. Brooking, 19 Beav. 347 ; In re Kincaid's Trusts, 1 Drew. 326 ; Dunkley v. Dunkley, 2 De G. M. & G. 390 ; In re SuggiWs Trusts, L. R. 3 Ch. 216 ; Boxall v. Boxall, 27 Ch. D. 220. (v) Ward y. Yates, 1 Dr. & Sm. 80 ; Be Hooper's Irusts 6 W. R. 824 ; Re Groves' Trusts, 3 Giff. 575. (w) Scott v. Spashelt, 3 Mae. & G. 599 ; Ward v. Yates, 1 Dr. & Sm. 80 ; Be Merriman's Trusts, 10 W. R. 334 ; Banning Mar. Sett. 52. (x) Croxton v. May, Lr. 9 Eq. 404. (y) Jodrell v. Jodrell, 9 Beav. 53, per Lord Langdale. , (5393) 308 CONSIDERATION marital partnership and contracts entered into on the dissolution of that partnership. Marriage settlements are protected as made on valu- able consideration. An arrangement on separation, however, even after attaining the form of a deed of separation actually executed, is of itself a post-nuptial are per se deed, and therefore a mere voluntary arrangement (z), voluntary. but is not against public policy (o) ; and while it is still merely in agreement will not be enforced by the Other con- Court (b). But there may be other considerations mov- siderations to ing between the parties which will support the deed make them against even the claims of creditors or purchasers (c). valuable. ' Covenant ot A covenant in a deed of this description, by the trus- indemnity t eeB f the deed, or by a third person (d), to indemnify by ^th^d 68 ^e nusband against the debts which the wife may con - person " tract after the separation, has always been regarded as against wife's a valuable consideration (e). debts. [ * 302 J * It has been said that the effect of such a covenant is not very great, for where a separation be- tween husband and wife is made by deed or by mutual agreement, the husband, living apart from his wife and allowing her separate maintenance, is not liable to pay her debts ; and this, speaking generally, is true ; but such a covenant is not valueless, for questions may and do (/) frequently arise, notwithstanding a separate maintenance is provided for the wife. The husband, if sued, must prove the adequacy of the allowance and the due payment of it (g) ; and whether the allowance be sufficient according to the condition and fortune of the parties is in some cases for the decision of a jury (h). (z) Ibid. (a) hunt v. Hunt, 4 D. F. & J. 221, 227 ; Besant v. Wood, 12 Ch. D. 605 ; Cahill v. Cdhill, 8 App. Cas. 420. (6) Fitzer v. Fitzer, 2 Atk. 511 ; Cloughv. Lambert, 10 Sim. 178; Westmeath v. Westmeath, Jac. 126 ; Vansittart v. Vansitlart, 2 De G. & J. 249 ; Warreuder v. Wat-render, 2 CI. & F. 527 ; Legard v. Johnson, 3 Ves. 352. (c) Buffles v. Alston, L. R. 19 Eq. 539. (d) Compton v. Collinson, 2 B. C. C. 377. (e) Stokes v. Stokes, post, Appendix No. V. ; Seeling v. Crawley, 2 Vern. 386; Angier v. Angier, Prec. Ch. 497 ; Stephens v. Olive, 2 B. C. C. 90 ; The King v. Bremen, 2 B. C. C. 93, n. ; Compton v. Collinson, 2 B. C. C. 377; Fitzer v. Fitzer, 2 Atk. 511 ; Worrallv. Jacob, 3 Mer. 256, 269 ; Elworthy v. Bird, 2 S. & S. 381 ; Gibbs v. Harding, L. R, 8 Eq. 490, S. C. L. R. 5 Ch. 336. (/) JDuffleld v. Scott, 3 T. R. 374. (g) Mizen v. Pick, 3 M. & W. 481 ; Nurse v. Craig, 2 N. R. 148. (7j) Hodgkinson v. Fletcher, 4 Campb. 70 ; Liddlow v. Wilmot, (5394) IN SEPARATION DEEDS. 309 If the parties separate by mutual consent, they may make their own terms, which are binding on both so long as they continue the separation (i). Questions may also arise as to whether the separa- tion has been sufficiently notorious in the neighbour- hood (fc) , for to make a separate maintenance absolve the husband from liability there must be, not necessa- rily a personal, but an implied, notice to the tradesmen, through the publicity of the separation. It is conceived that if a wife immediately on separation from her hus- band bought necessaries on credit from a tradesman with whom she had dealt before on credit, and who had no notice of the separation, her husband would be lia- ble to the tradesman, notwithstanding an adequate al- lowance (k) ; but that in such a case the covenant of indemnity would enable the husband to recover from the trustees (I). Such a covenant may then be of value to the hus- Of value to band ; it may afford him important protection and the husband, throw a burthensome obligation on the trustee ; and it has been uniformly decided that a bona fide separation deed containing such a covenant is not voluntary (m), and it can be enforced, though the husband is willing to receive her back (I). * A wife may in equity enforce a covenant [*303] When wife entered into by her husband with the trustees of a sep- can enforce aration deed between her and her husband, if she is covenant - beneficially interested in that covenant, and the trus- tees, on receiving a proper indemnity, refuse to sue (n). It is conceived that under the Married Women's Trustee for Property Act, 1882, a married woman can contract with wife not now her husband, just as with any other person (o) ; and necessarv - therefore that a covenant by a trustee for her in such deed executed after 1882 will be unnecessary (o). 2 Stark, N. P. C. 86 ; Emmett v. Norton, 8 C. & P. 506 ; Mars/tall v. Button, 8 T. R. 545 ; Worrall v. Jacob, 3 Mer. 269 ; Debenham v. Mellon, 6 App. Cas. 24. (i) Eastland v. Burchell, 3 Q. B. D. 436. (k) Todd v. Stokes, 1 Ld. Raym. 444, Salk. 116 ; Wallis v. Bid- dick, 22 W. R. 76 ; Eastland v. Burchell, 3 Q. E. D. 432, 436 ; Lush, H. & "W. 403. (I) Stokes v. Stokes, post, Appendix No. V. (m) Worrall v. Jacob, 3 Mer. 256. (re) Gandv v. Gandy, 30 Gh. D. 57, 73, 74, (o) Ante, p. 282; Griffith, 5th ed. 16, 20; Lush, H. & W. 401; Eversley, Dom. Rel. 467, 468. . (5395) 310 CONSIDERATION Is covenant It is a doubtful question whether the effect of that of indemnity Act is to make a covenant by a woman married after by wife alone ^gg2 to indemnify her husband against her future debts dlbtenowfor merely a voluntary covenant, or whether it will still be value? beld to be a valuable consideration, so as to support a separation deed against creditors or purchasers. It may be said that as the Act does not destroy her hus- band's liability to maintain her, and as it does confer contractual power upon her in respect and to the extent of her separate property, this covenant will still be deemed a valuable consideration. On the other hand, the Act destroys the husband's interest in his wife's property, and also his liability for her debts, unless she can shew that she contracted as his agent, whether she is or is not living with him (p). It was at one time held that a married woman having a separate maintenance might herself be sued for the debts she contracted (q) ; but even at that time this was called by Lord Alvanley " a very material covenant " (r), and was frequently decided to be a valuable con- sideration. Under the provisions of the Married Wo- men's Property Act, 1882, every contract entered into ' by a married woman prima facie binds her separate property (s) ; and renders her liable to be sued in re- spect thereof. To shift the liability from herself, she [* 304] must prove her * contract to be that of her husband's agent; whether she was or was not living with her husband at the time she contracted the debt. Covenantalso Where the covenant is not against debts alone, but also against claim against any claim of alimony,it makes the case stronger(i). for alimony. It is conceived that such a covenant, if entered into by a married woman in a separation deed after 1882, will be deemed a valuable consideration (u). Conditional And where in articles on separation the covenant by covenant. the trustees to indemnify the husband was conditional on the husband's performing a .covenant entered into by him to secure a certain provision for his wife's ben- (p) Key & Elphinstone, 2nd ed. vol. 2, 419. (q) Corbetl v. Poelnitz, 1 T. E. 5; overruled by Marshall v. But- ton, 8 T. R. 545. (r) Hyde v. Price, 3 Ves. 446. (s) 45 & 46 Vict. c. 75, s. 1 (2), (3), (4); see Griffith, 5th ed. 31-36. (0 Worrall v. Jacob, 3 Mer. 256. (u) 45 & 46 Vict. c. 75, s. 1 (2) ; see Weldon v. Window, 13 Q. B. D. 784; Turnbull v. Forman, 15 Q. B. D. 234. (5396) IN SEPARATION DEEDS. 311 efit, this covenant by the trustees, although to a certain extent conditional, was held to be a sufficient consider- ation to induce the Court to enforce the articles against the husband (w). An agreement between a husband and his wife's fa- Agreement ther that the husband and wife should live apart, and tor deed con- that the husband should execute a deed of separation taimn g a J! containing all usual and proper clauses, and securing ^£ er ant an annuity for the maintenance of his wife and child, clauses. and that the expense of the agreement should be borne •' equally by the husband and the father, was decreed to be specifically performed as on sufficient consideration, inasmuch, as the deed prepared was in pursuance of the contract, and contained a covenant of indemnity to the husband against the wife's debts, and there was also the contract to pay the expenses of the agreement and deed; and as the child was under seven years of age it was reasonable that an arrangement should be made for its maintenance (w). In Nixon v. Hamilton (x), on separation, an annuity Nixon v. of £600 was given to the wife, and there was a covenant Hamilton, (y) by the trustees that the wife should well and truly covenant by provide for, support, and educate the five children of ^^ A rus " the marriage until their coming of age,marriage,death,or support removal by the husband. Asto this, *Lord Plunk- [* 305] children. ett,Lord Chancellor of Ireland,said : "But as to the deed itself and the considerations stated on the face of it, no answer appears to me to have been made to the argu- ment as to the covenant by the trustees. There is a positive covenant by the trustees on the part of Mrs. H. that the maintenance of the children should be paid for by her. Now, is not that quite sufficient to take this deed out of the ordinary case of voluntary settle- ments ? The covenant is, not that the maintenance and support of the children is to come out of the annuity of £600; but it is a distinct and absolute covenant for the maintenance and support of the children; a covenant upon which the trustees would have been liable inde- pendently of the payment of the annuity of £600. It is said that no action could have been maintained by H. (the husband) on that covenant, unless he paid the (v) Wellesley v. Wellesley, 10 Sim. 270, S. C. 4 My. & Cr. 575. (w) Gibbs v. Harding, L. R. 8 Eq. 490, S. C. L. R. 5 Ch. 336. See 36 Vict, c. 12; Besant v. Wood, 12 Ch. D. 605; Hart v. Hart, 18 Ch. D. 622. (a?) 2 Dr. & Wal. 364. (y) Ibid, at p. 370. (5397) 312 Provision for reimburse- ment of wife's debts out of an- nuity. Covenant by wife only. CONSIDERATION annuity. I cannot accede to this, for it strikes me that such action would lie, and that the party bringing it would succeed." But, on the other hand, a mere provision in a sepa- ration deed that the husband shall be at liberty to reim- , burse himself out of an annuity secured to the wife by the same deed, does not prevent that deed from being voluntary and void against subsequent purchasers. Such a provision gives him nothing which he had not got before; it is a mere right to keep back so much out of the voluntary gift which he had made (z). It followed from this that where the wife had no separate property at the time she entered into the cove- nant, or only property settled to her separate use with- out power of anticipation, such covenant by her alone would not have been a consideration to the husband for an .annuity given to the wife; for in that case (not having anything as to which she could contract except the annuity then given) her covenant could not bind her except as to that annuity («). And this is still the case if the wife enters into the covenant after 1882, and at that time has no existing sep arate property (6); for she cannot then enter into a binding contract. Inhibition of [ * 306] *A process of inhibition issued out of a Scotch Court. Scotch Court on the part of a husband against his wife, after a separation, to prevent her charging his property with the payment of his debts, seems to be nothing more than a kind of notice to the public that the hus- band will not be answerable for her debts, and does not prevent the provisions of the separation deed from be- ing voluntary against the husband (c). A covenant to indemnify against the wife's debts is not the only consideration which will be allowed to sup- Other con- siderations may support p 0r t a deed of this kind, separation Thus, it has been held that a release by the husband of his marital rights in all future -acquired property of (z) Cowx v. foster, 1J. & Hem. 30 ; per V. C. Sir W. P. Wood. («) Walrond v. Walrond, Johns. 18. (b) In re Shakespear, 30 Ch. D. 169 ; 45 & 46 Vict. c. 75, s. 1 (2), (4). (c) Willats v. Bwsby, 12 L. J. Ch. 105. (5398) IN SEPARATION DEEDS. 313 the wife is a good consideration from the husband to Release of support his claim to an annuity secured to him by a sep- martial aration deed, and therein charged by the wife on her ri S llts f°>- separate estate (d). ^e , So the release by the husband of his rights in his wife's property has been held to constitute a valuable consideration sufficient to support a covenant by the wife not to sue for a restitution of conjugal rights (e). It is an undecided point whether, under the Married Effect ot] Women's Property Act, 1882, such a release by the Married husband will be any longer a valuable consideration. p r o™rtvAct It is conceived that as by that Act the husband's mari- 1882. ' tal rights in the property of his wife are entirely de- stroyed, such release will only be voluntary (/). Where the husbaud has, by his misconduct, given his Compromise wife a right to separation and maintenance, if she of suite for chose to take proceedings against him in the proper 1V0rce ' c - Court, an allowance made to her by him in a separa- tion deed will be looked on as a compromise of that claim of hers, and on valuable consideration. Thus in Hobbs v. Hull (g) the husband (the defend- Hoiisv.Hull, ant) was indebted to the plaintiff in judments and otherwise; a separation took place between him and his»wife, upon which occasion he *settled part [ * 307] of his real estates to the yearly amount of £300 upon his wife for her separate maintenance, and on the chil- dren of the marriage. It appeared that, previously to the separation, the husband had been living in a state of adultery, and it was insisted, in answer to the bill filed by the judgment creditor to set aside the settle- ment as voluntary, that, since the wife was, in conse- quence of her husband's misconduct, entitled to a di- vorce a inensa et thoro, and consequently to an allow- ance for alimony, there was a valuable consideration, which supported the deed against the husband's cred- itors. And so it was determined, the Master of the Rolls thas expressing himself : "I am now bound to decide the question whether, the husband having be- haved so ill as to entitle the wife to obtain a divorce in (d ) Logan v. Birhett, 1 My. & K. 220. (e) Marshall v. Marshall, 5 P. D. 22, 23 ; Clark v. Clark, 10 P. D. 188. (/) Ante, pp. 223, 295. (g) 1 Cox, 445. (5399) Wilson v. Wilson. 314 CONSIDERATION the spiritual Court a mensa et thoro, and to have a proper allowance from him, if the wife, instead of strictly prosecuting that right, meet the husband on the threshold, and say she will accept the maintenance pro- posed 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 on fair and reasonable terms. When the wife in this case agrees to accept this settle- ment instead of resorting to the enforcing of her rights in the Ecclesiastical Court, surely she is giving up something for it (h). I am, therefore, very clearly of opinion that this is not one of those agreements which the statute of Elizabeth meant to prevent." In the case of Wilson v. Wilson (i), in the House of Lords, it was held that the stopping by the wife 1 of a suit which she had instituted against her husband for nullity of marriage was a sufficient consideration to him for articles of separation; which were accordingly decreed to be carried into effect, although there was no covenant to indemnify the husband against the wife's debts, and although it did not appear that the wife [ * 308] could have obtained *a decree for alimony. Lord Cottenham said: "One part of the consideration is the stopping of the suit in the Ecclesiastical Coijrt. The stopping of those proceeding seems to have been an important object to Mr. W. — of the reason for which he was the best judge — and that alone was a sufficient consideration. In Bateman v. Countess of Ross (k) there was a suit pending for divorce. ' Why is not the compromise of such a suit to afford consideration for an agreement? Is it desirable that the parties should be compelled to bring such complaint in the Ecclesias- tical Court to public discussion f " Contract not This case established the principle that it was not' to sue for illegal, or contrary to public policy, that husband and con^al 011 ° f wife snould bind themselves by deed that neither of ri"nK them should institute a suit for the restituton of con- (h) See Nixon v. Hamilton, 2 T>. & "Wal. 364, 388 ; Kunn v. WihmOre, 8 T. R. 521. (i) 1 H. L. C. 538, S. C. 5 H. L. C. 40, and cases there cited; and Haworih v. Bostock, 4 Y. & C. 1, S. C. 9 CI. & F. 50; Gibbs v. Harding, L. R. 5 Ch. 336; Fry, Sp. Pf. 2nd ed. 648. (k) 1 Dow, 235. (5400) IN SEPARATION DEEDS. 315 jugal rights. This principle has been repeatedly fol- lowed (I). In Besant v. Wood (m) Sir G. Jessel, M.K., pointed out that the right of a married woman to contract not to sue for restitution of conjugal rights is a corollary from her right to compromise such suit, and that such contract was binding on her. So in Hart v. Hart (n) Kay, J., held that the maia consideration for an agreement to execute a deed of separation between husband and wife was the com- promise of litigation; and in Rose v. Rose (o), follow- ing Besant v. Wood (m), Sir G. Jessel, M.R., held that a contract by a married woman to compromise a suit was a perfectly binding agreement on her. Such contract, however, whether it contains a cove- Contract nant by the trustees of the wife, or merely by the wife must he duly alone, must be duly executed by her. That is to say, executed by it must be executed by her with the formalities which wl e " would be required if she entered into a contract for value with any other person than her husband respect- ing the same subject-matter. *So a stipulation (in an agreement to com- [*309 ] promise a suit for restitution of conjugal rights) that a married woman should release part of a jointure rent- charge after her husband's death secured upon his real estate not settled to her separate use, to which she was entitled by ante-nuptial settlement, which was not duly acknowledged by her, although duly executed by her husband, was held not binding on her (p). And, it must be observed that the necessary limit to this power of a married woman to bind herself — that is, her separate property — in a separation deed is this. She can bind herself — that is, her separate property — in any case in which she can bind that property if she were dealing with any person other than her husband. (Zl Rowley v. Rowley, L. R. 1 H. L. Sc. 62; Stanes v. Stanes, 3 P. D. 42; Marsltall v. Marshall, 5 P. D. 19; Besant v. Wood, 12 Ch. D. 605; Hart v. Hart, 18 Ch. D. 670; Rose v. Rose, 8 P. D. 98; Cahill v. Cahill, 8 App. Cas. 431; Clark v. Clark, 10 P. D. 188. (m) 12 Ch. D. 605. (n) 18 Ch. I). 685. (o) 8 P. D. 98. (p) Cahill v. Cahill, 8 App. Cas. 420*. (5401) 316 CONSIDERATION Theory of separation deed. Claim for alimonv. Not good against creditors. Under the Married Women's Property Act, 1882, a contract entered into by her now binds both her sepa- rate property at the date of that contract, and also all her future acquired separate property (q). But a mar- ried woman cannot enter into a valid covenant or con- tract in a separation deed under this Act unless at that time she has some existing separate property (r). The theory of a separation deed, said Lord Westbury in Hunt v. Hunt (s), " is that it is a contract between the husband and wife through the intervention of a third party — namely, the trustee; and the husband's contract for the benefit of the wife is supported by the contract of the trustee on her behalf." So a married woman was not liable upon such a deed until she had executed it, or had unquestionably adopted it. Her position, in an ordinary separation deed, until she had so adopted it,. stood on a different footing from that of her trustees, who were liable to answer for any breach of it by her (t) so soon as they had executed it. It is conceived that with regard to deeds executed after 1882 this doctrine will no longer obtain. It seems doubtful whether a wife's relinquishing her claim to a decree for alimony is of itself a consideration [ * 310 ] which * will support a deed against existing creditors. Their claim to the husband's property is superior to that of the wife; she has a right to a main- tenance out of that fund, and in the event of her being compelled by her husband's misconduct to live apart, the proper Court will decree her to be paid a sum for that purpose to her separate use; but that decree is only against the person of the husband, and cannot affect any part of the estate so as to take it from the husband's creditor's (it). In ascertaining the value of the hus- band's property for the purpose of settling the amount to be paid to the wife, the Court would, of course, take into consideration the whole state of his affairs and the amount of his debts. If then no order for alimony could be made which would defeat the husband's cred- itors, it follows that no compromise of a claim for such (?) 45 & 46 Vict. c. 75, s. 1 (3), (4). ' ' (r) 45&46 Vict. c. 75, s. 1 (3), (3); In re Skakespear, 30 Ch. D. 169; ante, p. 383. (a) 4 D. F. & J. 331. (t) Williams v. Bailey, L. R. 2 Eq. 735; GMs v. Harding, L. R. 5 Ch. 338; and see Eversley. Dom. Rel. 467, 468 et seq. (it) Fitzer v. Fitzer, 2 Atk. 513; Barnardiston v. Simpson, MS 1736, Appendix No. VII. * ' (5402) IN SEPARATION DEEDS. 317 alimony could be of itself a valuable consideration bind- ing against existing creditors. A careful examination of all the cases seems to warrant the conclusion that it is the compromise of the suit itself, or the right to insti- But the com- tute it, whereby the debtor is relieved, not only from promise is the costs, but also from the trouble and scandal attend- *?? re fJ con " , ., , . , . ,, , ., ,. , sideratiou. ing such a suit, which is the real consideration; as shew- ing that the provisions of the deed were not the spon- taneous act of the husband for his own benefit, but such as he would have been likely to accept, even though un- willing to make any arrangement for the maintenance of his wife (v). It is an undecided point whether merely reciprocal Reciprocal covenants by husband and wife with each other not to covenants, sue for the restitution of conjugal rights would now be deemed a valuable consideration. It is submitted that, having regard to Besant v. Wood (w) and to the Mar- ried Women's Property Act, 1882 (x), such reciprocal covenants would now be held to support a deed against creditors or purchasers. It may be noticed here that it has been decided that Compromises an agreement by a wife to waive the further prosecu- of indict- tion of an indictment * against her husband [ * 311 ] m( r?* s wllen for an assault in consideration of his allowing her an annuity by way of separate maintenance, is an illegal contract, although entered into with the sanction of the Court in which the indictment was tried, and that the wife cannot even come in with other creditors of her husband for arrears of the annuity (y). But in this case the earlier one of Elworthy v. Bird (z) does not ap- pear to have been cited. There too an indictment for assault was compromised with the sanction of the Court in which the indictment was tried; but this was not allowed to make the separation deed founded on the compromise illegal. It was argued for the deed that if founded on the compromise of a felony or any public misdemeanour it would be void, but not so in respect to the compromise of a private wrong (a) ; and Sir J. (v) But see Hbbbs v. Hull, 1 Cox, 445; Nunn v. Wilsmore, 8 T. R. 521; Eversley, Dom. Rel. 479. (w) 12 Ch. D. 655; and see Marshall v. Marshall, 5 P. D. 19. \x) 45 & 46 Vict. c. 75, s. 1 (2); and see Lush, H. & W. 391 et seq. ; Eversley, Dom. Rel. 469, 470. (y) Garth v. Earnshaw, Y. & C. 584. (z) 2 Sim. & S. 372. (a) This distinction was allowed by L. C. Talbot in Johnson v." Ogilby, 3 P. Wms. 279. 26 STAT. OF ELIZ. (5403) 318 CONSIDERATION Personal in- terests may be compro- mised. Where a person has a civil and a criminal re- medy, he may compromise. Collusion between hus- band and -wile. Leach said, "All the authorities concur that the policy of the law does permit the compromise of assaults." And Lord St. Leonards, when Lord Chancellor of Ireland, said (6) that as to the law with respect to compromises, the authorities seem to admit of a dis- tinction ; an agreement in consideration of compound- ing a prosecution for a felony is void, but an agreement to make the prosecutor of a misdemeanour, of a private nature and occasioning a private injury, a reasonable satisfaction in consideration of proceedings stayed, may not be illegal. In Coppock v. Bower (c) the offence, though not a felony, was a misdemeanor of a public nature ; but in every case in which a man has a private personal interest he has a right, if he pleases, to for- bear from a prosecution. Where the offence is such that the person injured has the choice between a civil and a criminal remedy; it is not against the policy of the law for the injured person to enter into a compromise with regard to the civil pro- ceedings (d). It may be said that if a deed of separation contain- ■ [ * 312 ] ing a * covenant of indemnity, or any of the other ingredients above mentioned, is good against creditors, it offers a debtor an easy opportunity of evad- ing the statute and defrauding his creditors ; but it must be remembered that, although the value of the consideration will not be nicely scrutinized, the ques- tion of bona fides or not will be carefully examined, and a husband and wife will " not be permitted by colluding together to disappoint the security of fair creditors" (e). A separation deed executed in consideration of a sep- aration which never took place cannot, after the death of the husband or wife, be supported as a voluntary settlement (/). Contracts entered into with respect to and provisions (6) In Wesiby v. Wesiby, 2 D. & War. 519; Keir v. Leeman, 13 L. J. Q. B. 359. See Williams v. Bayley, L. E. 1 H. L 210 Flower v. Sadler, 10 Q. B. D. 572. (c) 4 M. & W. 361. (d) Fisher v. Apollinaris Co., L. E. 10 Ch. 297. (e) Filzer v. Filzer, 2 Atk. 511, as explained by the M.E. in Eobbs v. Hull 1 Cox, 446. (/) Bindley v. Mulloncy, L. E. 7 Eq. 343. (5404) IN SEPARATION DEEDS. 319 for prospective separation are not only voluntary but Agreements illegal and void, whether the deed be postnuptial or for future ante-nuptial (g). Even when not open to this objec- separation. tion, separation between husband and wife is not of itself a valuable consideration (h); but the trusts of a separation deed actually executed will be carried out, although there is no consideration for the deed (i), un- less it be illegal or contrary to public policy (k). It is clear that a separation deed between an unmar- Separation ried man and a woman with whom he has been cohab- from a mis- iting is per se voluntary (I), In Ex parte Naden (m) tress - a man separated from a woman with whom he had gone through the ceremony of marriage, and executed a sep- aration deed in the usual form, covenanting with the trustees of the deed to pay her an annuity for their joint lives, with a proviso that, if they should live together again by mutual consent, the deed should be void. The annuity was paid till the * man [* 313 ] became bankrupt. It was held that the proviso was wholly void , and that the deed must be read as if the proviso did not form a part of it. So read, it was a simple voluntary deed of covenant to pay an annuity to a person for life. To such a settlement as that, however, other circum- stances may lend a valuable consideration. So where the woman asserted, and appeared to have a fair pros- pect of substantiating, a promise of marriage made to her by a man, an annuity given her by him on discon- tinuance of cohabitation was upheld as on valuable consideration (n). The execution by a husband of a deed of separation Execution of already drawn up by agreement may be a legal consid- deed as eration for a promise by a third person to pay certain agreed. (g) Westmeatli v. Westmeath, 1 Dow & C. 529; Bindley v. Mul- loney, L K. 7 Eq. 343; Byrne v. Careic, 13 Ir. Eq. Rep. 1-6; EC. v. W., 3 K. & J 382, Procter v. Robinson, 15 L. T. (N.S.) 431. (h) Marshall v. Button, 8 T. R. 545; Legard v. Johnson, 3 Ves. 352; St. John v. SI. John, 11 Ves. 526; Durand v. Durand, 2 Cox, 207; Logan v Birkett, 1 My. & K. 225; ante, p. 301. (i) Frampton v. Framplon, 4 Beav. 287. (k) Hamilton v. Hector, L. R. 13 Eq. 511, S. C. L. R. 6 Ch. 701. (/) Turner v. Vaughan, 2 Wils. 339 ; Binninglon v. Wallis, 4 B. & Aid. 650; day v. Rooke, Ca. t. Talb. (Forr.) 153, and cases there. A deed founded on the consideration of continuing cohab- itation is void . Lady Cox's Case, 3 P. W. 338. (m) L. R. 9 Ch. 670. (n) Keenan v. Handley, 2D. J. & S. 283. (5405) 320 CONSIDERATION IN SEPARATION DEEDS. Subsequent cohabitation in general avoids sepa- ration deed. Enforced by injunction debts and expenses for which the husband was solely liable (o). It is a general principle that subsequent cohabitation and reconciliation of husband and wife put an end to all the effects of separation-; and, therefore, an agree ment made on separation, in general, comes to an end when that separation ends (p). Even a verbal agree- ment to reside together in the same house, and not to cohabit as man and wife, has been held to have the same effect (q). But the question, whether a particu- lar deed is not merely a separation deed, but is a post- nuptial settlement, depends upon the true construction of the particular instrument; for it is plain that the parties to a separation deed may agree that it shall con- tinue to operate whether there be a return to cohabita- tion or not (r). So an agreement on re-cohabitation to continue a provision for the wife which was expressed to be given, not during separation only, but for her life, [ * 314] has been held valid (s); *and where the sep- aration deed provided that if the husband and wife should thereafter agree to live together again such co ■ habitation should in no way alter the trusts thereby created, their subsequent reconciliation for a time was held not to avoid the deed (t). A covenant to live apart, not now being contrary to the policy of the common law, to which at the Reforma- tion the Ecclesiastical Courts became subordinate, may be enforced by injunction against proceedings for resti- tution of conjugal rights (u). (o) Jones v. Waite, 5 Bing, N. C. 341. (p) Baleman v. Countess of Boss, 1 Dow, per Lord Eldon, 245 ; Nieol v. Nicol, 30 Ch. D. 143, S. C. 31 Ch. D. per Cotton, L.J., 526; Westmeath v. Salisbury, 5 Bli. (N.S.)339, 367; Bindley v. Westmealh, 6 B. & C. 200; Fletcher v. Fletcher, 2 Cox, 99; Rop. Husb. & W. vol. 2, 273 n.; Ruffles v. Alston, L. R. 19 Eq. 545 ; but see Barnardiston v. Simpson, post, Appendix No. VII. (q) Westmeath v. Westmeath, 5 Bli. (N.S.) 339, 367. (>•) Negus v. Forster, 30 "W. R. 671; Nicol v. Nicol, 30 Ch. D. 143, S. C. 31 Ch. D. 524. (s) Webster v. Webster, 1 Sm. & Giff. 489, S. C. 4 De G. M. & G. 437, commented on in Nicol v. Nicol, 30 Ch. D., per North J 148. (0 Wilson v. Mushett, 3 B. & Ad. 743; see Nicol v. Nicol, 30 Ch. D., per North, J., 148, 149. {«) Bunt v. Bunt, 4 D. F. & J. 221, 227; Besant v. Wood, 12 Ch. D. 605, and see Cahill v. Cahill, 8 App. Cas. 421 ner Lord Selborne, L.C. (5406) *CHAPTEE III. [*315] VOLUNTARY CONVEYANCES MADE GOOD BY CONSID- ERATIONS ARISING SUBSEQUENTLY. A deed voluntary at the time of its execution may af- Voluntary terwards become valuable by subsequent acts which by deed made matter ex post facto will sometimes make good a settle- & oocl bv mat " ment which in its creation was not good (v). facto* P ° S But, of course, there is no question of so making valid a deed against either creditors or purchasers un- less the act relied on to give the deed validity is done without notice of or privity in the fraud of the particu lar voluntary deed which the act is to be .taken to con- firm. It was said by Lord Eldon, in Johnson v. Legard (iv), " It cannot be denied with respect to persons who make voluntary settlements, and those who are called volun- teers, that they may come to such future bargains as to make that which was originally voluntary no longer to be so considered." This is one reason why the Court will not at the instance of the vendor enforce the per- formance of a contract to sell land previously volunta- rily settled by him (x). (v) Price v. Sands, Gouldsb. 118; Prodgers v. Langham, Sid. 133; Gilb. Lex P. 286; Smartle v. Williams, 3 Lev. 387, cited as Andrew Newport's Case, Skin. 423, Bacon Abr. tit. Fraud; Kirk v. Clark, Prec. Ch. 275, Gilb. Lex P. 251, S. C. as Heisier v. Clarke, 2 Eq. Ca. Ab. 46; Lady Burg's Case, F. Mo. 602; East India Co. v. Clavel, Gilb. Eq. R. 37 Prec. Ch. 377; Porter v. Clinton, Comb. 222; Tanner v. Byne, 1 Sim. 166; Tarleton v. Liddell, 17 Q. B. 390, 421; Doe v. Roulledgc, Cowp. 705; Knatclibull v. Kissane, 5 Dow, 389, 411; Hart v. Middlekurst, 3 Atk. 377; Daubeny v. Cockourn, 1 Mer. 638; Parr v. Eliason, 1 East, 92, 95; Meggison v. Foster, 2 Y. & C. Ch. 336; Martyn v. McNamara, 4 Dru. & War. 411, 429; Clarke v. Willott, L. R. 7 Ex. 313. See also White v. Garden, JO C. B. 919; and the comments thereon in Billiter v. Young, 6 E. 6 B. 25; and Earl of Aldborough v. Trye, 7 CI. & F. 436, 463; Judd v. Green, 45 L. J. (N.S.) Ch. 111. (to) T. & R. 294. (x) Peters v. Nicolls, L. R. 11 Eq. 391; Clarke v. Willott, L. R. 7 Ex. 317; Fry, Sp. Pf. 2nd ed. ss. 387, 870; and see In re Marsh and Earl Granville, 24 Ch. D. 11. (5407) 322 EX POST FACTO Prodgers v. [ * 316] * The general doctrine was laid down in the Langham. leading case of Prodgers v. Langham (y), decided un der 27 Eliz. c. 4, which Lord Eldon said had long been considered good law (z). It was there agreed per Curiam that a deed although void in its creation, and voidable by a purchaser, can become good by a matter ex post facto; as, if one make a feoffment by covin and the feoffee makes a feoffment for valuable consideration, and then the first feoffor enters and makes a feoffment for valuable considera- tion, the feoffee of the first feoffee shall hold the land, and not the feoffee of the first feoffor. For, although the estate of the first feoffee was in its creation covin- ous and therefore voidable, yet when he enfeoffs one on valuable consideration it shall be preferred before the last (a). Clarke v. This case has been followed with approval in the case Willoti. of Clarke v. Willott (6), decided under 27 Eliz. c. 4, where Cleasby, B., said: "It must be borne in mind that a conveyance, though voluntary upon the face of « it, and at first void, as against a purchaser for conside- ration, may yet become valid by force of subsequent events. This was held in Prodgers v. Langham (c), a case which Lord Eldon said in George v. Milbanke (d) had long been considered good law, and Lord Kenyon spoke of it in Parr v. Eliason (e) as a leading authority; see also per Lord Eldon in Johnson v. Legard" (/). The principle The principle to be deduced from these cases seems and the rea- t be this: son of it. When a person has bon& fide, on the faith of a vol- untary gift, contracted a marriage, paid purchase- money, or made an advance, the title of that person, although derived from and passing through a volun- tary deed, is to be preferred to the claims of creditors of, or subsequent purchasers from, the original donor. (y) 1 Sid. 133. (z) In George v. Milbanke, 9 Ves. 193; and Lord Kenyon, in Parr v. Eliason, 1 East, 92, called it "a very leading authority'' - Clarke v. Willott, L. E. 7 Ex. 317. (o) See also Roddy v. Williams, 3 J. & Lat. 1. (b) L. B. 7 Ex. 317. (5408) (<•) 1 Sid. 133. (d) 9 Ves. 190. (e) 1 East, 92. (/) T. & E. 294. CONSIDERATIONS. 323 As to mere voluntary conveyances, the reason of this appears to be, tnat a voluntary deed is always good between the *parties (g), and is liable to [ * 317] become void only by being actually brought into an- tagonism with the claims of creditors or subsequent purchasers, and then only so far as it interferes with their rights (h). A voluntary deed, therefore, until steps have been Voluntary taken to impeach it by creditors or purchasers, is not deed really void, but voidable. A deed which is voidable can be on Jy v °id- affected by subsequent acts in one of two ways ; either a e " to be confirmed, and so made no longer voidable, oryon the other hand, to be made actually void. So a bona fide sale, &c, for value, before any proceedings have been taken to set it aside, acts as a confirmation of the voluntary estate, which before was voidable, by sup- plying the only thing which, in the creation, was want- ing — viz. , a valuable consideration ; and a valuable con- sideration given for a title good against all the world, except certain persons, and only voidable by them on account of the want of consideration (i). In such a case the person who pays a consideration Considera- to the voluntary grantee may constructively be held to tion relates be in the same situation as if he or she had, in the first ' instance, paid it to the original donor (A;) ; the consid- eration is made to relate back to the first instrument. An illustration of this may be drawn from the case of Loivv. M'Gill (I), in which Mrs. I. was living in the same house with T., and was the owner of certain goods therein, which goods she, for a fraudulent purpose, permitted T. to assign, as if they had been his own, bj a bill of sale in his own name as security for money advanced. It was held that the goods were well vested in the assignee by the bill of sale, and that it was valid against a subsequent execution. This was, in effect, a fraudulent gift by Mrs. I. made good pro tanto by a subsequent bonst, fide charge. (g) Per Anderson, J., in Upton v. Basset, Cro. Eliz. 445, post, pt. v. ch. iv. (h) Ante, pp. 68, 208; post, p. 325; pt. vi. ch. i. (i) See Dmibeny v. Cockburn, 1 Mer. 626, 638. Payment of a valuable consideration by a person not having the legal estate, and not being an object of the power, cannot set up an invalid appointment in favour of such purchaser. Sug. Pow. 8th ed. 542, 616-7 ; Parwell, 349. (k) Per Sir W. Grant, 1 Mer. 638 ; Morewood v. South Yorks, <&c, 0>.,3H. & N. 798. (0 12 W. E. 826.- (5409) inducement? 324 EX POST FACTO Where volun- This principle has often been applied in cases where tary convey- [ * 318 ] a voluntary * conveyance has supplied the anee induced go j e or ^ e p r i nc ip a i inducement for a marriage, marriage. r L ° To uphold such conveyance by the ex post facto con sideration of marriage against creditors or subsequent purchasers, it is not necessary to shew by direct or positive proof that such conveyance did actually form an inducement to the marriage (m). Must volun- It has been a doubtful question whether the volun- tary convey- tary conveyance must be the sole inducement on the ance be sole f a ith of which the marriage takes place. It is con- ceived that the result of the cases goes to shew that such conveyance will be supported if it be proved to be the principal inducement to such marriage. A certain relationship must, however, fee established between the voidable act and that by which it is to be made valuable. Thus, if a man seised in fee make a voluntary deed settling his estate upon himself for life, with remainder to his first and other sons in tail, though he afterwards marries and has a son he may subse- quently sell and convey the lands to a bona fide pur- chaser, as to whom, by all the authorities, the settle- ment will be void within the statute 27 'Eliz. c. 4 (n), if and because there was nothing to shew that the mar- riage was induced by the settlement. Prodgers v. In the early case of Prodgers v. Langham, (o) the Langham. value of marriage to give ex post facto validity to a voluntary settlement was laid down by the Couri. In that case B. made a lease of lands to trustees, in trust for his unmarried daughter for her maintenance before marriage, and if she married P., or any one of whom B. approved, then in trust for her for the residue of the term. The daughter married a man whom B., her father, did not like, but afterwards he " was content " and went and lived with them. It was held by the Court that the conveyance to the daughter before marriage was a voluntary conveyance void against purchasers ; but that, although it was void in its creation as to purchasers, yet, when the marriage (m) Guardian Assurance Co. v. Viscount Avonmore L R 6 Ir Eq. 396 ; intra, p. 320. (n) Per Lord Campbell in Tarleton v. Liddell, 17 Q. B 421 (o) 1 Sid. 133, decided under 27 Eliz. c. 4. (5410) CONSIDERATIONS. 325 took effect, "the first * settlement no longer [ * 319 ]. remains voluntary as it was in its creation, but is on valuable consideration, inasmuch as the marriage is an advancement to the daughter, and he who married her was induced to do so by reason of that provision." In Kirk -v. Clark (p) a father was tenant for life of Kirk.v. copyhold lands, with remainder to his wife for life, the Glark - reversion to himself in fee ; and, merely to lessen the fine in case of the copyhold descending on his son, he made a surrender of the reversion to his eldest son in tail re- mainder to his own right heirs. The son afterwards married, and evidence was adduced, to shew that this estate in reversion of the son in the copyhold was what chiefly induced the friends of the lady to consent to the match, although other land was also settled on the son on the marriage ; and the Lord Chancellor Lord Cooper " decreed the surrender to the son good against the purchaser; and though it were at first voluntary, yet upon his treaty of marriage, being regarded as the principal inducement thereto, it now became valu- able" (q). In the East India Company v. Clark (»•) decided under Eliz. c. 5, it was said that if the settlement were volun- tary in its creation, yet, being the motive and inducement to J. S. to marry her, it had now become valuable (r). In Brown v. Garter (s) Sir E. P. Arden said that Brown v. Prodgers v. Langham (t) had been relied on to shew Garter. that circumstances ex post facto may make good a set- tlement that might have been impeached; that the mean- ing of it is that, though the estate does not appear to have been settled on the marriage, it may be intended to be an inducement to consent to the marriage; and then the father shall not afterwards set up a subsequent conveyance for valuable consideration to put an end to that conveyance upon the faith of which that marriage was contracted. In the course of his judgment he said : " It does not appear that it was regarded as the princi- (p) Prec. Ch. 275, decided under 27 Eliz. c. 4, S. C. as Eeis- sier v. Clarke, 2 Eq. Ca. Ab. 46. (g) But see Sir R. P. Arden's comments in Brown v. Carter, 5 Ves. 878. (r) Prec. Ch. 377, Gibb. Eq. Rep. 37, commented on by Lord Eldonin George v. Milbanke, 9 Ves. 193 ; and see Payne v. Morti- mer, 4 D. G. & J. 447. i 5 Ves. 877, decided under 27 Eliz. c. 4. . Sid. 133. (5411) '{1)5 (t)l, 326 EX POST FACTO [ * 320] pal inducement; but it might *be so. The lady had a right, the children have a right, to have it considered that he had the estate which he appeared to have; and I should do gross injustice in taking away that benefit." In the recent case of Guardian Assurance Company v. Viscount Avonmore (u) in Ireland, this question was carefully considered The question in that case was whether a deed volun- tary in its inception became a deed for value ex post facto by the marriage of the parties. It was held to have become by the marriage a deed for value. The true rule was there laid down to be that if the Court upon consideration of all the facts comes to the con- clusion that the marriage took place on the faith or in the belief of the voluntary deed affording a provision in whole or in part for the parents or their children, then the marriage does supply a consideration for the settlement, and makes it a deed for value. Is presump- tion of inducement necessary '! It has also been a doubtful question whether there is or is not in such cases a presumption that, in the ab- sence of evidence to the contrary, the settlement was an inducement to the marriage. It is conceived that the true view now is that there is no such presumption. In the early cases such a presumption, it was held, must be made. So in Brown v. Carter (v) Sir E. P. Arden said : " Therefore I am of opinion, though it does not appear the wife's friends did speculate upon this and take it into consideration, it must be pre- sumed they did act upon it." (v). This case was followed in Roddy v. Williams (w) with approval; and Lord St. Leonards seems to have upheld this view (x). In Tarleton v. Liddell (y), however, Lord Campbell seems to have expressed a contrary opinion. The case of Brown v. Carter (v), moreover, as was («) L. R. Ir. 6 Eq. 391. (v) 5 Ves. 877. u)3J. &L. 17. (x) Sug. V. & P. 14th ed. 720. (y) 17 O. B. 421 ; and see George v. Milbanke, 9 Ves. 193. (5412) CONSIDERATIONS. 321 explained * by Lord Romilly in Hoghton v. [ *321] Hoghton (z) does not establish the proposition that, in the absence of evidence to the contrary, it is to be taken for granted that the settlement was an inducement to the marriage. The voluntary settlement in Brown v. Carter (a) was made in 1768 ; the limitations of it gave interests to any children the settlor might have, with remainders over. In 1779 he married. In 1799 he conveyed the estate to the plaintiffs, who filed their bill to set aside the settlement of 17G8. The decision, therefore, as is clear from the concluding words of the judgment, only shews that, after a lapse of twenty years and loss of evidence, everything shall be presumed against the person who has delayed to bring the ques- tion before the Court for that period of time. In the recent case in Ireland of Guardian Assurance Company v. Viscount Aronmore (6), in which Lord Romilly's remarks in Hoghton v. Hoghton (z) were cited with approval, it was laid down that " there is no pre- sumption, in the absence of any evidence, that the parties knew of and acted on the deed. It is a question of fact, and, in the absence of proof, the Court must infer it from the circumstances of the case." The principle, so far as the consideration of marriage is concerned, seems to approach very closely, to that by which the Court was actuated in those cases which have decided that if a parent or his agent or a stranger (c) holds out inducements to another to celebrate a mar- riage, and holds them out deliberately and plainly, and the party consents and celebrates the marriage in con- sequence 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 to him, the Court will take care that he is not disappointed, and will give effect to the proposal (d). The same principle has been frequently applied to Same make a settlement originally voluntary good by a subse- principle quent sale, or mortgage, or other valuable consideration, a PP lles t0 ^ . , ' , ° ° subsequent against purchasers. sa l e £ (2) 15 Beav. 278, 316. mortgage. (a) 5 Ves. 877. (6) L. R. 6 Ir. Eq. 397. (c) Crofton v. Ornish/, 2 Sch. & Lef. 583. ((?) Per Lord Lyndhurst in Hammersley v. De Biel, 12 CI. & F. 78, 79. See also Maunsell v. White, 4 H. L. C. 1039 ; post, pt. iv. ch. v. (5413) 328 EX POST FACTO Subsequent sale. [ *322 ] *" There is no difference," said Lord Eldon in George v. Milbanke (e), "between a voluntary settle- ment made good by a subsequent marriage, and one made good by a subsequent advance of money ; " and " the substantial justice of this case is very much the same where an instrument of this kind is carried to a man who, upon the authority of it, advances money, and where he advances money at the time " the volun- tary conveyance was made. The consideration paid by the second grantee relates back so as to confirm his title, although it passes through a voluntary instrument which thuB becomes an authentic channel through which the title may be conveyed ; and the acts by which the conveyance is made valid must be completed before any steps are taken to set it aside ; for the voluntary deed, as soon as it becomes opposed to the creditors of or pur- chasers from the author of it, becomes no longer only voidable, but, as to them, void (/). Feoffments to escape wardship. Considera- tion when grantee has altered his position on faith of gift or settle- ment. This doctrine is as old as the statute of Marlebridge, 52 Hen. 3, c. 6, which was intended to make void feoff- ments by tenants to their heirs, when nnder age, of their heritage, to defraud the lords of the fee of their ward- ships ; on which it was held that feoffees of the feoffees upon the same collusion were within the statute, " but if the feoffees in the life of the ancestor make a feoff- ment in fee bon& fide and then the tenant dieth, his heir within age, the lord shall not have any action upon this statute, for that the collusion continued not until the death of the tenant ; but if the tenant had died, his heir within age, and then the feoffees had enfeoffed others bona fide, yet the lord shall recover the wardship, be- cause the lord, by the death of his tenant, was once en- titled to his action " (g). A consideration ex post facto may also be supplied in any case, as "against a subsequent purchaser, where the donor of a voluntary gift or the settlor of a voluntary settlement has, after that gift or settlement, permitted the donee or the grantee to materially alter his position in consequence of such gift or settlement. In Dillwyn v. Llewellyn (h) a father by a written (e) 9 Ves. 195 ; and see Myers v. Duke of Leinstcr, 7 Ir. Eq Rerj 146, 166 ; ante, p. 184. (/) See also O'Connor v. Bernard, 2 Jones (Ir. Rep.} 654 (g) 2 Co. Inst. 111-7. (h) 4 De G. F. & J. 517. (5414) CONSIDERATIONS. memorandum *signed by him gave his son land [ *323 ] for the purpose of building a house there as a residence, and at the same time put him in possession of it. The son built a house at an expense of £14,000, with the knowledge and approval of his father, and lived there to his father's death. The father by his will devised the property to his wife for life, with remainder to his son for life, with remainder to his first and other Lord "Westbury, L.C., held that the subsequent ex- penditure by the son on the faith of the memorandum, with the approval of the father, supplied a voluntary consideration originally wanting, and creating a bind- ing obligation; and declared the son the owntr in fee of the estate comprised in the memorandum. The principle upon which this ex post facto consideration in such a case is founded seems to be that the voluntary settlement is really the consideration, as it were, mov- ing to the voluntary grantee for the action he takes upon the faith of it («). The doctrine of allowing subsequent valuable consid- Twtrine eration to set up a voluntary deed is well within the applies in principle of decision on the statute 27 Eliz. c. 4. favour of purchasers. There seems to be some difficulty, however, in the D oes deed application of this principle to cases where the rights become good of creditors are concerned under 13 Eliz. c. 5; and a S ai P st where the question is whether the settlement originally ^ yViuabl voluntary has been made valuable by a subsequent considera- money payment or other valuable consideration (except tion ex post marriage) moving from the grantee. facto fr ° m grantee? This point does not appear to have ever been ex- pressly decided The question only arises in cases where the voluntary grantee has not divested himself of the property conveyed to him by the grantor, by a transfer for value to a bona fide purchaser without notice of fraud. Of course the question would not arise if there was evidence of fraud sufficient to avoid the deed against creditors, independently of the want of consideration. It must be borne in mind that the object of these two statutes of Elizabeth is totally different. The statute 13 Eliz. c. 5, protects " creditors and others " against (t) See In re Barker's Estate, 44 L. J. (N.S.) Ch. 490, per Jessel, M.E., decided on 27 Eliz. c. 4; ante, p. 280. (5415) chasers arise. 330 EX POST FACTO [* 324] what was then a fraud at common *law (&); but the statute 27 Eliz. c. 4, merely protects a pur- chaser against a prior voluntary settlement of the same property; and, as it were, creates a statutory fraud, which may be no real fraud at all. Time at There is also a difference of some consequence as to which rights the time at which the rights of creditors and those of of creditors purchasers arise, and pur- *■ The rights of creditors in general (I) to avoid a vol- untary settlement of real or personal estate made by the settlor accrue immediately on the execution of that settlement. The question, whether it is or is not void against them, depends on all the circumstances at the time it was executed. In point of time, therefore, their right to avoid the settlement is prior to the ex post facto consideration which is to support the settlement against them in fa- vour of the voluntary grantee. The right of a purchaser, however, to avoid a volun- tary settlement of real estate made by the settlor ac- crues of course only at the date of his purchase. Till there is a bona fide purchaser in existence, the volun- tary grantee can by a valuable ex post facto considera- tion make his title unimpeachable. It is conceived, however, that the true view is that this principle does apply to cases under 13 Eliz. c. 5. It would seem that there may just as well be valuable consideration ex post facto (other than that of mar- riage) when the voluntary grantee takes action on the faith of the voluntary settlement made in his favour by the grantor, under the one statute as under the other; the voluntary settlement is in each case the real con- sideration, as it were, which moves to the voluntary grantee. There also does not appear to be any real difference in this respect between a conveyance to de- fraud a subsequent creditor and a conveyance to defraud a subsequent purchaser. Although the cases of Dillwyn v. Llewellyn (m ) and In re Barker's Esta te (n) were decided with reference (k) Ante, pp. 3, 5, 193; see Battersbeev. Farrinqton, 1 Sw. 113. (0 Ante, pp. 13-15, 35, 67. Im) 4 De G. F. & J. 517; ante, p. 322. (n) 44 L. J. (N.S.) Ch. 487; ante, p. 280. (541(5) CONSIDERATIONS. 33 1 to 27 Eliz. c. 4, the principles there laid down by Lord Westbury, L.C., and Sir G. Jessel, M.R., seem to apply to similar cases under 13 Eliz. c. 5. *In considering this question, it is of great [* 325] importance to keep carefully in view the true nature of the rights of "creditors and others" under 13 Eliz. c. 5, and of subsequent purchasers under 27 Eliz. c. 4. A deed which, by virtue of the statute 13 Eliz. c. 5, Conveyances is "utterly void" only as to "creditors and others" so unde r notn soon as it is executed, is nevertheless a perfectly good voidable deed as between the parties, and as against all persons only; and who claim through the settlor (o). It is therefore in only as reality a deed which is voidable only, and not void (p). a S al ° st creditors or Till made void by "creditors and others," it is a valid purc hasers. deed, and one by virtue of which the legal estate vests in the voluntary grantee, subject to its being divested. So a deed which is fraudulent under 27 Eliz. c. 4, is only voidable, and not void; and, till avoided by a sale to a bona fide purchaser, is a perfectly good deed as against all the world Although the fraudulent con- veyance is said to be "utterly void," against the parties aggrieved, in both statutes, it is not to be implied that it was an absolute nullity when originally executed. The right of the person defrauded under these stat- How right to utes to elect to avoid (a) a deed as fraudulent may be avoid convey- i i ■ -i/u i j.u i ii i • ance may be lost in either of the following ways : — ]ost J First, it may be lost by the deed having become for value by a consideration ex post facto before any steps are taken by that person to impeach it (r). Secondly, the voluntary grantee may have divested himself of the property by a bona fide transfer of it for value to a bonk fide purchaser for value without notice of fraud (r). Such a purchaser from the voluntary grantee ac- quires under these statutes (s) an unimpeachable title, (o) Ante, pp. 316, 317; post, pt. v. ch. iv. (p) Bac. Abr. tit. Void and Voidable; Bump. Fr. Conv. (Amer.), 2nd ed. 481-482; and see Stevenson v. Newnham, 15 C. B. 303, per Parke, B. (q) Morewood v. South Yorkshire Co., 3 H. & W. 798, 801. (r) Ante, pp. 315 et seq. (s) 13 Eliz. c. 5, s. 6; 27 Eliz. c. A, s. 4; ante, pp. 80, 81, 83, (5417) ' 332 EX POST FACTO which cannot be avoided either by "creditors and others," or by a purchaser. [ * 326] *The words of the sections which protect such purchaser "for good consideration and bond fide" and without notice of fraud are nearly the same in both statutes (t). It will be noticed that the scope of both of the sections is very broad; they are not limited in terms to a conveyance from the grantor, but apply to any conveyance either from the fraudulent grantor or grantee. The sections do not specify the person by whom the conveyance is to be made, and it is conceived that, as corresponding sections of these two statutes, they would receive the same construction. This is, moreover, the settled construction which these sections have received in America, where it has been held that a bona fide, innocent purchaser for value from either a fraudulent grantor or a fraudulent grantee acquires an indefeasible title (m). When does When a voluntary deed is. made a deed for value by deed become matter ex post facto, a question arises, from, what pe- valid owing r j 0( j j s ^at ,j ee( j ^ ^ e d eem ed a deed for value? to ex post facto con- sideration? It has been held in O' Donovan v. Rogers (v), that such consideration does not relate back to the time of execu- tion of the original deed so as to defeat an intermedi- ate deed for value; but that the deed became valid as against a creditor or purchaser from the date of such matter and no sooner. Same con- struction in America. Between two voluntary conveyances of same property, priority of date confers title. As between two voluntary conveyances, that which is prior in time will prevail, if bona fide (w). The ground of this is that although such conveyance is bad as against a creditor or a subsequent purchaser, it is good as between the parties to it (x); and therefore the first voluntary grantee holds the property against a subse- 188 ; Story, Eq. Jur. 12th ed. ss. 434-436 ; Bump. Fr. Conv. (Amer.), 2nd ed. 436, 451, 480, 481; and see the judgments in Anderson v. Roberts, 18 Johns. 513 (Amer.). (1) 13 Eliz. c. 5, s. 6; 27 Eliz. c. 4, s. 4. («) Bump. Fr. Conv. (Amer.), 2nd ed. 480-482; Anderson v. Roberto, 18 Johns. 513. (») 7 Ir. Ch. Rep. 1, 496 ; post, p. 328 ; and see Stevenson v. Newnham, 15 C. B. 297. (w) Clavering v. Wavering, 2 Vern. '473 ; George v. Milbanke, 9 Ves. 195; Doe v. Rusham, 17 Q. B. 733; Story, Eq. Jur. 12th ed. s. 433; ante, pp. 221, 222. (x) Ante, p. 325; Story, Eq. Jur. 12th ed. s. 425. (5418) CONSIDERATIONS. 333 quent grantee from the same grantor, who had no estate left in him to convey to that second voluntary grantee (y). It is only by virtue of the statutes that the voluntary * conveyance is liable to be [ * 327] made void as against creditors, or to be defeated by a conveyance to a subsequent purchaser (z). This principle, that, as between voluntary convey- ances of the same property from the same grantor, priority of date confers the title to the property, ap- plies to the following two questions : — The first is, What are the respective rights of two Rights of two subsequent purchasers for value of the same property subsequent from two voluntary grantees holding from the same purchasers & " voluntary grantees. The second is, What are the respective rights of a Rights of a subsequent purchaser for value of property from a vol- subsequent untary grantee, and another voluntary grantee of that purchaser property holding from the same grantor ? °, m * c r ' => ° voluntary grantee and According to the principle laid down in Doe v. Rus- another ham (a), overruling the Irish case of Moffett v. Whit- voluntary taker (b), when a settlor has parted with his whole S™- 66 - estate in favour of a voluntary grantee, it is conceived that, as he has no estate left in him, any subsequent voluntary conveyance by him of the same property is a nullity. If this be so, it follows that any dealing with such subsequent voluntary conveyance is also a nullity. The question, then, in these two cases seems to de- pend simply on which of the two voluntary settlements was the first in date, assuming, of course, that the two settlements comprise the same property, and therefore a subsequent purchaser from a voluntary grantee can- not defeat a prior voluntary settlement (c), or a pur- chaser from that prior voluntary grantee. So in an old case where a man seised in fee, having made a voluntary conveyance with power of revocation, afterwards, without effectually exercising that power, ■ (y) Doe v. Rusham, 17 Q. B. 733. (z) Dolphin v. Aylward, L. R. 4 H. L. 499; BosJier v. Williams, L. R. 20 Eq. 218; ante, pp. 68, 208, 325. (a) 17 Q. B. 732, 733. (b) 1 Lang. & Town. 141. (e) Sug. V. & P. 14th ed. 714; and see In re W Donaglis 1 Estate, 3 L. R. Ir. 408. 27 STAT. OF ELIZ. (5419) 334 EX POST FACTO Does pur- chaser from grantee pre- vail over subsequent one from grantor? made another conveyance to a nephew for his advance- ment, and the nephew sold to a purchaser for value, it was held that the purchaser could not avoid the first voluntary grant (d). [ * 328 ] * It has also been questioned whether a pur- chaser for value from a voluntary grantee can prevail over a subsequent purchaser for value from the original grantor by reason of the title of such first purchaser for value relating back to the time of the original vol- untary settlement, so as to prevail over any intermedi- ate purchaser for value. This was discussed in Ireland under the Act 10 Car. 1, sess. 2, c. 3, which corresponds to 27 Eliz. c. 4, in the case of 0' Donovan v. Eogers (e). In that case a father made a voluntary settlement on his daughters. He afterwards mortgaged the same property. On the subsequent marriage of one of the daughters, her share in the property under the voluntary settlement was conveyed to trustees upon the trusts of her marriage settlement; and the share of another daughter was set- tled for value after the mortgage was executed. It was there laid down, as decided by the old case of Goodchild v. Moses (/), that he whose purchase is prior in time shall prevail; and that the consideration does not relate back to the date of the original voluntary settlement. The ground of this was thst it would defeat the whole policy of the Act if a subsequent purchaser could so set up a voluntary settlement which was avoided by the operation of the statute. The principle of the decision in this case seems really the same as in the other two cases just discussed. The real question seems to be, which of the two pur- chasers for value was the first in point of time? As against a purchaser, the voluntary settlement is a null ity, so that a purchaser from a volunteer can only de- feat a purchaser from the original grantor if his pur- chase be the first of the two purchases in point of time. So it would appear that a purchase from a voluntary grantee would not prevail against even a fraudulent (<*) Lady Burg's Case, F. Moo. 602; and see Cleric v. Rutland, Lane, 113 ; Eden v. Chalkhall, Sir T. Raym. 25 : Com. Dig. tit Covin, B. 4, ult. (e) 7 Ir. Ch. Rep. 1, 496. (/) 2 Sir Wm. Bl. 1019; Rob. Conv. 497. (5420) CONSIDERATIONS. 335 conveyance which was made previously to the volun- tary grant (g). In America the same principle of priority of date Same prin- applies in each of these three cases. It has long been eiples apply there regarded as settled law that the first purchaser m America. for value, whether he takes *the conveyance [ * 329 J from the voluntary grantor or from the voluntary grantee, will have the preference. So, too, as between two voluntary grantees, he who has the first conveyance prevails (h). But where (i) the second conveyance by the settlor Second grant was expressed to be made in consideration of a sum of expressed to money (which, however, was never paid), and the ^e for value. grantee under it sold to a purchaser for value without notice that the second conveyance was not a bona fide sale, it was decided that the first voluntary settlement was void against a bona fide purchaser. Where the first conveyance by the original settlor iB Fraud, aliter. really fraudulent or fraudulently kept on foot (k), it seems that a bona fide purchaser from his heir or de- visee will avoid it (I). It seems that a deed executed by a debtor for the ben- Creditors' efit of his creditors, though voluntary and revocable at deeds, its execution, because none of the creditors were par- ties or privies to it, may become valid and valuable by the way in'which it is subsequently used as by being com- municated to or executed by creditors, and by their having upon the faith of it refrained from enforcing their remedies against the debtor (m). A conveyance which is at the time of its execution Failure of supported by an adequate valuable consideration is not considera- liable, under the statute of 27 Eliz. c. 4, to be defeated ^tter ex by a subsequent conveyance for value of the same prop- post f ac t (a) Clerk v. Rutland, Lane, 113 ; Rob. Conv. 382-3 ; ante~p. ™ 1 } no * n , 2 33_' > < r ma k e ,i ee( j ; (h) See Anderson v. Roberts, 18 Johns. (Amer.) 513; Story, Eq. voluntary. Jur. 12th ed. ss. 434-436. (t) Doe v. Martyr, 1 Bos. & P. N. R. 332. (k) Sug. V. & P. 14th ed. 713 ; Dart, V. & P. 5th ed. 902. (I) BurrelVs Case, 6 Rep. 72 a ; Warburton v. Loveland, 6 Bli. (N.S) 1, 31. (to) Acton v. Woodgate, 2 My. & K. 492 ; Smith v. Hurst, 10 Hare, 30 ; Dart, V. & P. 5th ed. 901 ; and see post, p. 393 and pt. v. ch. iv. , as to subsequent consideration for voluntary agree- ments. (3421) 336 EX POST FACTO CONSIDERATIONS. erty merely because the consideration has, since the ex- ecution of the conveyance, failed by matter ex post facto. This principle was laid down in Paget v. Paget (n), decided in Ireland under 10 Car. 1, sess. 2, c. 3, which corresponds to 27 Eliz. c. 4. In that case a deed of indemity, originally for value, was executed by a minor, and was avoided by him after a lapse of ten years on the ground of infancy, though a perfectly honest transaction. It was held that the de ( ed was none [ *330 ] the less *for value because the consideration was made void by matter ex post facto. So far as regarded the consideration necessary to support a transaction, its validity was to be judged of by the state of circum- stances at the time when the transaction took place, and not by the events which subsequently occurred (o). The imputed fraud under the statute must be presumed to have existed, if at all, at the time at which the con- veyance sought to be defeated was executed ; and the failure, by matter ex post facto, of what was at the time a sufficient consideration, could not operate so as to create the supposed fraud retrospectively. (») 9 L. R. Ir. 128, 142 ; Tarteton v. Liddell, 7 Q. B. 414, 421. (o) Fry, Sp. Pf. 2nd ed. 196, 197 ; ante, p. 268. (5422) * CHAPTER IV. [*331] THE NATURE AND EXTENT OF THE CONSIDERATION OF MARRIAGE. Marriage has in all ages and countries been regarded, Marriage is a from a legal point of view, more or less as a civil con- civil contract, tract, mutually entered into by a man and a woman, according to the solemnities for the time being required by the laws of the country to which they belong (p). The religious rites and observances which have gener- ally accompanied the marriage have, even in Christian countries, seldom been necessary to the validity of the nuptials. The canon law, indeed, from which our own law of Canon law. marriage is derived, regarded marriage more as an act of religion than of civil contract, but at the present day it may be validly celebrated either with or without any religious formalities. By the English law marriage is regarded merely as a civil contract (q). The law, Blackstone says (r), "considers marriage in Law treats it no other light than as a civil contract . . . and taking like other it in this light the law treats it as it does all other eon- contracts, tracts, allowing it to be good and valid in all case3 where the parties at the time of making it were, in the first place, willing to contract ; secondly, able to con- tract ; and lastly, actually did contract, in the proper forms and solemnities required by law ;" and applies to it, with some exceptions, the ordinary principles which attach to other contracts (s). It is a contract of a peculiar kind, which is entered Nature of the into " with a view not only to the benefit of the parties contract, themselves, but to the benefit of third parties, to the ffi o) See Eversley, Dora. Rel. pp. 4 et seq. (q) Shelford, Mar. & D. 17. As to the difference in England before and since the Reformation, see Hunt v. Hunt, 4 D. F. & J. 221 227 (r) 1 Bl. Com. 21st ed., 433. (s) 2Steph. Com. 8th ed., 238; 1 Broom, Com. 523; Dalrym- jile v. Dalrymple, 2 Hagg. Con. 54, 62. (5423) 338 THE NATURE OP THE benefit of their common offspring, and to the moral or- der of civil society " (t). It also partakes of the nature of a vow, which, though [ * 332 ] entered into * voluntarily; cannot be dissolved like other contracts by the mutual consent of the parties. For these reasons, and with the view of enabling per- sons at this starting-point of a new family to enter into arrangements and settlements of property not to be easily overturned, the law gives to any contracts with regard to property into which the intending husband or wife or their friends on their behalf may enter at the Valuable con- time, the weight and security of a valuable coDsidera- sideration. tion, and makes them binding, not only against the par- iies themselves, but against all other persons, to the same extern 1 ; as if the settlement had been a conveyance made in consideration of the full value paid (u) By the civil And the civil law allowed the same privileges to mar- law, riage portions as to other alienations on valuable consid- eration, and supported them in the hands of those who received without notice of the fraud (v). Marriage the The consideration of marriage, said Lord Hardwicke, highestcon- is '* the best consideration that can be " (w). It is the sideration highest known to the law (x), and one which it is the known to our policy Qf ^ lftw t(J giye paramoun t f orce to. Unless the marriage itself be a mere fraudulent con- trivance for defeating creditors, the doctrine both at law and in equity has been to support a settlement of the husband's property when it appears to have been made previously to and in consideration of an honest marriage. Such a settlement will, be upheld notwith- standing the embarrassed circumstances of the hus- band at its date, and even where the wife has contracted the marriage and obtained the settlement with a full (0 Shelford, Mar. & D. 3. (it) Assaby v. Manners, Dyer, 235 a ; Douglasse v. Ward. 1 Ch. Ca. 99 ; Wheeler v. Caryl, 1 Amb. 121 ; Churchman v. Harvey. ibid. 340 ; Partridge v. Gopp, 2 Amb. 596 ; Reynell v. Peacock,2 Eo. 105, 2 Eo. Abr. 34, tit. Fraud ; Saw v. Pote, 2 Vera. 239 ; Dilkes v. Broadmead, 2 D. F. & J. 566 ; Webber v. Farmer, 4 Bro. P. C. 170. (v) Domat, book 2, tit. 10, sec. 1, par. 11. (w) Toumshend v. Windham, 2 Ves. 4. (a;) Ford v. Stuart, 15 Beav. 495, 499, S. C. reversed on a dif- ferent point, 4 D. & J. 661. (5424) MARRIAGE CONSIDERATION. 339 knowledge of the husband's embarrassments (y). So it is only for very gross fraud, as when the marriage itself is a mere fraudulent device to defeat creditors, * that the consideration is not capable of sup- [ * 333 ] porting it (z), and will do so in some cases where the consideration of money actually paid would not avail. Thus, although a debt of an ancestor is binding on Marriage his heir or devisee, a settlement by whom will be as settlementby much within the statute as if made by the ancestor heir or de- himself (a), yet, in the absence of any special circum- 7} s ?f not stances, land, after alienation by the heir or devisee for ances tor's the purpose of a marriage settlement, is not liable to debts, the specialty debts of the ancestor of which there is full notice at the time of the settlement (6). In Richardson v. Horton (c) SirW. Horton, indebted by. specialties binding his heirs, died, leaving an only daughter, hi 9 heiress- at-law and devisee of his real estate (subject to a life interest), and on her marriage, two years afterwards, a portion of the real estate was conveyed by deed to trustees to be sold to pay the debts, and the remainder of the real estates was limited to the use of the husband and wife and the issue of the marriage. The land so set aside proved insufficient, and the creditors claimed satisfaction out of the settled estates, but it was held that they were not entitled to payment thereout. The settlement, it was said, came within the proviso in favour of conveyances for good consideration and bona fide, for it was clearly for valu- able consideration (the marriage), and, no mala fides being directly proved or expressly alleged, Lord Lang- dale, M.R., decided that it could not be inferred from the circumstances. The imputation of fraud merely rested on this — viz., that the parties to the settlement, knowing that there were debts of the testator remain- ing unpaid, and setting apart only a portion of the estates to provide a fund for the payment of those debts, settled the remainder, providing at the same time that the rents of the estate set apart for the payment of the (g) Per Sir J. Stuart, in Fraser v. Thompson, 1 Giff. 49, 62 ; Kevan v. Crawford, 6 Cb. D. 29; ante, p. 91. (z) Campion v. Cotton, 17 Ves. 263 a ; ante, p. 89, as to the set- ting marriage settlements aside ; and see Barrow v. Barrow, 18 Beav. 529 ; Bulmer v. Hunter, L. R. 8 Eq. 46. (a) Gooch's Case, 5 Rep. 60 b; Apharrg v. Bodingham, Cro. Eliz. 350; ante, pp. 165, 166. (b) Mathews v. Jones. 2 Anstr. 506. (c) 7 Beav. 112; Spademan v. Timbrell, 8 Sim. 253. (5425) 340 THE NATURE OF THE debts should, until the estates were sold, be paid to the husband. Since those estates had been sold, upon an account taken after a lapse of about thirty years, dur- ing which great fluctuations had taken place in the value [ * 334] *of the land, without one word said of ex- planation, either as to the cause of the delay or the cause of the defalcation which had taken place, the produce of the land was found insufficient for the full payment of the debts and. the interest which had ac- cumulated upon them. So a settlement on marriage of leaseholds or other per- sonal estate derived by will, if the bequest has been as- sented to, is good against the creditors of the ancestor (d). To what Of course, if the marriage then contemplated does marriage con- no t take place, the consideration wholly fails (e) ; and till such marriage takes place, the contract is not exe- cuted, and the trusts cannot come into operation. If, then, either the actual parties live together unmarried and have children, or if being within the prohibited degrees they go through the ceremony of marriage (/), in either case the trusts created by the settlement can never, come into existence, because the intention to pro- vide for all their issue is defeated (gr). Such contract can then be rescinded, and such trust put an end to (h). sideration applies. Effect of marriage on the personal property of wife. Before the Married Women's Property Act, 1882 (i), all the unsettled personal property of the wife which accrued to her during the marriage became by the mar- riage the property of the husband and his creditors. If the husband's settled property was decreed to be restored to his creditors, there could be no restitution to the wife of her unsettled property, and she must lose it, as well as those rights under the settlement in con- sideration of which she parted with her own (k). (d) Spackman v. Timbrell, 8 Sim. 260; Dilkes v. Broadmead, 2D. F. & J, 566. (e) Chapman v. Bradley, 33 Beav. 61, S. C. 4 De G. J. & S. 71; and see Coulson v. Alison, 2 Giff. 279, S. C. 2 D. F. & J. 521 ; post, pt. v. ch. iv. (/) WDonnell v. Hesilrige, 16 Beav. 346; Essery v. Cowlard, 26 Ch. D. 191. (g) Pawson v. Brown, 13 Ch. D. 202; see Dav. Prec. 4th ed. vol. 3,11. (li) Chapman v. Bradley, 4 De G. J. & S. 71; see Elph. Deeds. 331 332. (I) 45 & 46 Vict. c. 75, ss. 1 (1), 2, 5. (k) See per Lord Hardwicke in Harvey v. Ashley, 3 Atk. 611, infra; Fry, Sp. Pi". 2nd ed. 415-416. (5426) MARRIAGE CONSIDERATION. 341 There are no doubt some cases in which the Court will set aside a settlement as to part of the property com- prised in it. Lester v. Garland (l) is a case of that kind. *But where there are reciprocal settlements [* 335] Peculiarity and the consideration of marriage occurs, it is neces- of consider* sary to observe all the circumstances. Two things are marr i ase involved: there is the marriage itself, as it affects the that restitu- personal rights and duties and disabilities; there is tion is also the settlement, as it affects the property of both im P 0SSll)le - parties. -In setting aside a settlement or conveyance made on pecuniary consideration as void against cred- itors there is no difficulty about restitution. The prop- erty is restored and the money repaid. Both parties are by the decree of the Court remitted to their previ- ous position, and the settlement or conveyance set aside. But when marriage is the consideration, restitution is impossible. Therefore it is that in the case of Cam- Campion v. pion v. Cotton (m), notwithstanding the strong circum- Cotton. stances shewing fraud against the creditors, the para- mount value of the consideration of marriage support- ed the settlement. The circumstances of that case were very remarkable, for the settlement was made in order to withdraw the property from the creditors and secure a provision for the intended husband and wife at the expense of his creditors. He was greatly embar- rassed, and the wife well knew his pecuniary difficul- ties. There was a false recital in the settlement that the stock settled had been purchased with her money. He had transferred into the name of his wife sums of stuck not his own property, but the property of persons for whom he acted as broker. Notwithstanding all these circumstances, because the marriage was legally contracted the Court refused to set the settlement aside. The ground of the decision was, the paramount force and value of the consideration of marriage and the im- possibility of restitution, from the nature of the mar- riage contract (n). In Hogan v. Healey (o) a father gave a promissory (l) 5 Sim. 205, in which a settlement of the hushand's estate so that his life interest ceased on his bankruptcy was held good as to so much as was equal to the amount of the -wife's portion which was not settled ; post, p. 337. (m) 17 Ves. 263, a; see Kemnv. Crawford, 6 Ch. D. 29; ante, p. 91. (») Per Sir J. Stuart in Fraser v. Thompson, 1 Giff. 63. (o) 11 Ir. Eep. C. L. 122; and see Johnsion v. Johnston, 32 W E. 1016, S. C. 33 W. E. 239. (5427) 342 THE NATURE OF THE note in consideration of his daughter's marriage, rely- ing on the reported solvency of his daughter's future husband. It was admitted this was a misrepresenta- tion. It was held that, as the marriage was the con- sideration for the promissory note, and could not be undone, the father could not avoid it, even for a fraud practised on him during the treaty for marriage. Superiorityof [* 336] *This superiority of the consideration of and differ- marriage arises partly from the fact that in setting aside ence between an an (. e nU ptial agreement it is impossible to reinstate other lag6 aU the contracting parties in their former position and un- contracts. marry the parties (p), and partly because interests of other parties than those whose hands are actually join- ed in wedlock are at stake. As Lord Hardwicke said (q), " these agreements differ from all others; the prin- cipal consideration is the marriage; settlements are prudential acts, done chiefly for this consideration, and the estate settled may be greater or less, according to the discretion of the parties; as soon as the marriage is had, the principal contract is executed, and cannot be set aside or rescinded; the estate and capacities of the parties are altered, the children born of the mar- riage are equally purchasers under both father and mother; and therefore it has been truly said that mar- riage contracts ought not to be rescinded, because it would affect the interests of third parties — the issue," and that the children may compel a settlement although either or both of the parents, the actual parties to the contract, neglect or refuse to perform it (r). Even " If a husband on his marriage in consideration of dis- parity of years or any other personal consideration, will make a very large settlement, whatever that is, the par- ties claiming under it, whether wife or children, are en- titled to have that carried into execution according to the intent, notwithstanding the husband has agreed in an extraordinary liberal manner, beyond what is the rule." (a). Each party The view thus taken by Lord Hardwicke has been bound, inde- followed by later decisions. Thus in Rancliffe v. Par- tbT others ° f kynS '^ L ° rd EMon ( M ) observed that the consider - {p) No'ih v. Ansell, 2 P. Wms. 618. (q) See Harvey v. Ashley, 3 Atk. 610. (?■) Rancliffe v. ParJcyns, 6 Dow. 149; Oiilliner v. CWliner, 2 Ves. 528; and Mills v. Bortliwiek, 11 Jur. (N.S.) 558; Jeston v Key, L. R. 6 Ch. 610. (s) Prime v. Stebbing, 2 Ves. 409. (0 6 Dow. 149. («) 6 Dow. 209. (5428) MARRIAGE CONSIDERATION. 343 ation of marriage is not like the consideration in other contracts. In a contract between A. and B. if A. does not make it good on the one hand B. is not bound on the other. But not so in the case of marriage; for if the mutual issue are purchasers, though it is not issue made good by one of the parties, the issue have a right purchasers. to say, You shall each of you do what you can do, and we must not be disappointed (u). And it seems that even though the portion mentioned in the settlement was not paid, the * issue are equally purchas- [* 337] ers, for they take under both parties, and whether they perform their agreement among themselves may be im- material to the issue ; they are purchasers under both, and consequently both are obliged to perform (v), and failure of the consideration covenanted, to be paid by the husband or wife will not make the benefits received by him or her in return for it void or even voluntary (iv). In Jeston v. Key (x) a marriage contract was en- . Jeston v. Key. tered into between the husband and the wife's father. Both agreed to make a settlement, and this agreement was not performed by either party. But the contract was partly performed by the marriage. The wife died without issue, and the father, who had entered into cer- tain covenants, was also dead. It was held by the Court of Appeal that although the husband had not performed his part, he had a right to claim against the father's estate under his covenant ; as the performance by one was not a condition prece- dent to his right to claim against the other. As to the other reason for the value of the consider- Parties ean- ation of marriage, the impossibility of restoring them not regain to the status in quo — either as to property or as to their iogl+io?. 11116 * mutual relationship — in Fraser v. Thompson (y), where it was attempted to set aside the settlement only as to the husband's property, Sir J. Stewart, V.C., said, "this view presents various difficulties. The settle- (u) Rancliffe v. Parkynsj 6 Dow. 149; ChilKner v. Chilliner, 2 Ves. 528; and Mills v. BorthvAck, 11 Jur. (N. S.) 558; Jeston v. Key L. R. 6 Ch. 610. (v) Per Lord Hardwicke in Ramsden v. Sylton, 2 Ves. 309; and see Campbell v. Ingiiby, 21 Beav. 567. (to) Campbell v. Ingiiby, 21 Beav. 567; and see Lee v. Lee, 4 Ch. D. 175. (x) L. R. 6 Ch. 610. \y) 1 Giff, 49, 62, 63, S. C. reversed on a different point, 4 De G. & J. 659. (5429)' 344 THE NATURE OF THE ment of the husband's property is part of the consid- eration for the settlement of the -wife's. If the hus- band's property is to be restored to his creditors, it is impossible to restore to the wife that state of enjoy- ment of her property which she had before the mar- riage. By the settlement of her property and by the marriage she parted with the absolute dominion of her own property and person, on the faith of the settle- ment of her husband's property. These difficulties as to restitution, when duly examined, illustrate the prin- ciple on which settlements made in consideration of marriage are supported against creditors where a pecu- niary consideration, however adequate in point of value, would be insufficient. But the difficulty extends beyond the effect of the settlement on the wife's property in- cluded in it." Interest to husband in his own property to cease on bankruptcy void, or to wife if settlement by her is made after 1882. [ *338] *A man cannot, on his marriage, settle his own property in such a manner that in the event of his bankruptcy his wife shall be entitled to a provision out of it in prejudice to his creditors (z). Thus where a bond was given to the future wife's father for £500, payable at a day certain, but defeasanced not to be put in suit, but for security of the daughter in case any misfortunes should happen to the husband, and then to be paid before other creditors, the bond was held fraud- ulent on the face of it, to disappoint creditors (a). So a man cannot on his marriage settle his own prop erty, real or personal, so as to take an interest under the settlement, defeasible on his bankruptcy (6). And after 1882, by virtue of the Married "Women's Property Act, 1882 (c), a woman, whenever married, will not, it is submitted, be able to settle her separate property upon herself, so as to be defeasible upon her bankruptcy (d). But where, in consideration of a portion of £1000 with his wife, a husband, on marriage, settled his own («) Per Lord Manners in Higginson v. Kelly, 1 Ball & B. 252,255. (a) Wise 1 a Case, Sel. Ca. Ch'. 46, 8vo ed. p. 128.' (b) Lockyer v. Savage, 2 Stra. 947 ; Ex parle Murphy, 1 Sch. & Lef. 44 ; Higgiribotlwm v. Holme, 19 Ves. 88 ; Pliipps v. Lord En- nismore, 4 Rnss. 131 ; Clarke v. Chambers, 8 Ir. Ch. Rep. 26 ; and see In re Pearsons, 3 Ch. D. 807, supra, p. 68 ; Robson, Bkcy. 5th ed. 474, 475. (c) 45 & 46 Vict. c. 75, ss. 2, 5, 19, 25. (d) 45 & 46 Vict. c. 75, s. 1 (5). (5430) ' MARRIAGE CONSIDERATION. ' 345 real estate on trust to pay the interest to him until he Estate should sell, mortgage, assign, or encumber the same, defeated by or should become bankrupt, and then on trust to pay to > n ° rt e a ge the wife £300 a year for her separate use, and he first bankruptcy mortgaged it and then became bankrupt ; it was held that the wife became entitled to the annuity when he mortgaged the estate, and that, her title having then vested, it was unnecessary to consider whether the limita- tion over on his bankruptcy was valid (e). But a similar limitation of property belonging to the if the wife's, wife (/), or of a legacy to which she became entitled valid. during coveture (g), or of property coming from the wife's friends (h) or even coming on *the hus- [ *339] band's side from a third party (i) or, if the settlement was bona fide a matter of bargain of property coming partly from a third party and partly from the husband himself (A;) will be good against his creditors. And where the property settled, though strictly Partly the speaking the husband's, is in reality what came from wife's, valid the wife's side, such a limitation of it will be upheld P ro tanto. (Z); and a limitation of this nature of the husband's property is valid for so much as is equal to the amount of his wife's portion (m); and where the amount brought into settlement by the wife exceeds the amount limited to the husband until his bankruptcy, the limi- tation over will be good (i). These principles seem to apply to a settlement made Similarly it after 1882 upon a woman of property belonging to or husband's derived from the husband, which will in a similar case and settle- be good against her creditors (n) either wholly or pro "J-?" ^Sg 2 e tanto. In no case, however, can property be limited to a Creditors man in such a manner as to prevent his creditors from excluded. 6 obtaining any interest in it on his bankruptcy, although f rom pr0 . (e) Brooke v. Pearson, 5 Jur. (N.S.) 781. P ertv ^ h j. ch (/) Ex parte Meaghan, 1 Sch. & Lef. 179 ; Ex parte Hinton, 14 a ™ an 1S t0 Ves. 598: Ex parte Cooke, 8 Ves. 353 ; Stockwell v. Yeates, 17 W. en J 0T - E. 23. (g) Montefiore v. Behrens, L. E. 1 Eq. 171. (h) Ex varte Oxley, 1 Ball & B. 257. ti) Lewis v. Butler, 16 W. E. 681. (k) Hammonds v. Barrett, 17 W. E. 1078. (I) Higginson v. Kelly, 1 Ball & B. 252. (m) Lester v. Garland, 5 Sim. 205; and see Eobson, Bkcy. 5th ed. 475. (n) 45 & 46 Vict. c. 75, ss. 1 (5), 19, 25. (5431) 346 THE NATURE OF THE he is still to-get the benefit of it. Such a limitation can only be made with a view to defraud creditors (o). Goods settled But goods and chattels, such as furniture or stock in on wife for trade, which, before the marriage, belonged to the wife, the purposes j^ght by marriage settlement be conveyed to trustees, of her trade. ^ Q ena jj] e k er ^ carrv on ne r business separately; and if the husband has not intermeddled with them, and there be no fraud, such effects are not liable to the husband's debts. But whether the trade has been carried on solely by the wife or jointly with the hus- band is a question of fact for a jury, and, if they de- termine the latter, the stock in trade is liable to the husband's debts, but not the furniture, although re- moved to the husband's house (p). Not for trade. No schedule. Husband in- debted at time of settlement. [ * 340] *This applied also where furniture or other personal chattels were so settled without any intention of trading, though of course the husband's creditors would be entitled to any income from them during the interest of the debtor in them (q); and the mere ab- sence of any schedule or inventory of the goods was no proof of fraud (r). And though if there is a schedule articles not included in it would in general be liable to the husband's debts (q), yet where (s), on the marriage of a woman who had previously been in trade, a set- tlement was made of all the articles mentioned in the schedule thereto, "and all her stock in trade, mate- rials, and other articles then belonging to her in and about her said business," it was held that a horse and chaise, which she had always been in the habit of using for visiting her customers, passed to the trustees, al- though not mentioned in the schedule. "Where the husband is " indebted " at the time, such a settlement, to be valid against creditors, must be ante-nuptial or for value (t); for the 'same principle (o) Brandon v. Robinson, 18 Ves. 429; Bippon v. Norton, 2 Beav. 63; Dommeit v. Bedford, 3 Ves. 149. In these cases the limitations were not in marriage settlements. But see Holmes v. Penney, 3 K. & J. 90, 100, ante, pp. 110, 111. (p) Jarman v. Woolloton, 3 T. R. 618; Haselinton v. Gill, ibid. 620, n. ; Dean v. Brown, 8 Dowl. & Ey. 95; and see now 45 & 46 Vict. c. 75, ss. 2, 5. (q) Cadogan v. Kenneit, 2 Cowp. 432: Simmons v. Edwards, 16 M. & W. 838. (r) Jarman v. Woolloton, 3 T. R. 618, 622; and see Weeks v. Maillardet, 14 East, 568; England v. Downs, 2 Beav. 522, 536. Is) Dean v. Brown, 8 Dowl. & Ry. 95. (t) See ante, pp. 34 et seq., 78 et seq. (5432) MARRIAGE CONSIDERATION. 347 applies where the settlement is after marriage and on Post-nuptial valuable consideration between husband and wife (u). settlement But in order to make valid against the husband's cred- for value - itors a post-nuptial settlement of furniture or other personal chattels of which the husband or husband and wife jointly retain the apparent possession it must be registered as a bill of sale, although supported by a valuable consideration (v). And there seems no reason why a mere voluntary Voluntary, post-nuptial settlement of furniture or of stock in trade to enable the wife to carry on a separate trade, regis- tered as a bill of sale, and made when the husband was not indebted, and without meaning to defraud subse- quent creditors, should not be valid against his cred- itors although the transfer was not followed by any apparent change of possession (w). *The provisions of a marriage settlement [*341] Settlement cannot extend to what was not contemplated by the on re-mar- parties at the time ; and whether or not a re-marriage divorce between a husband and wife previously divorced would be valid, it is certain that the children of such a union could not take any benefit under a settlement made on the first marriage of their parents, because such an event could not have been within the intention of the parties to the deed (x) In Carr v. Taylor (y) the question was said to be whether the husband was purchaser of the whole for- tune of his wife including any future accessions, or only of that which he was actually to receive with her at marriage ; and that, to make him a purchaser of the whole, the settlement must clearly express or import that intention. AH the limitations to the husband, wife and issue are j^ll limita- protpcted by the marriage consideration. So it was tions to said in Nairn v. Prowse (z) : "Every provision with husband, regard to the husband and wife falls directly within the . e > a consideration; and the wife is interestsd in the provision tected. for the husband as well as that for herself. The mar- (u) Arundell v. Fhipps, 10 Ves. 139, 150. (v) Asliton v. Blackshaw, L. E. 9 Eq. 510; ante, pp. 147, 153. (w) See Dewey v. Baynlun, 6 East, 267; ante, pp. 36 et seq. (x) Bond v. Taylor, 2 J. & H. 473 ; Essery v. Cowlard, 26 Ch. D. 191 ; ante, p. 334 ; post, pt. v. ch. v. (yt 10 Ves. 578. \z) 6 Ves. 758 ; post, pp. 342 et seq. (5433) wife. 348 THE EXTENT OF THE riage is consented to in consideration not only of her interest in the event of survivorship, but of his income and the provision he is thereby enabled to make for her and her children during his life. It is notmaterial that when the provision is made for the husband it may be liable to his debts " (a). Even after Even after the death of the husband or wife without death of issue the consideration of the marriage remains (£>). husband and g jf a settlement is made by a father, upon the mar • riage of his son, upon the husband and wife for their lives, and afterwards upon the children, and the wife dies without any issue, and therefore the huBband is the only object, it could not be contended that the father's cred- itors could impeach that settlement and take from the son the provision for his life (c) ; and a settlement of [ *342 ] lands may, after *the death of husband and wife and issue, be enforced by the heir if the covenant or if any of the uses of the settlement subsist at the death of the covenantor (d). Settlement The consideration will be extended also to a settlement madeonmar- made on the marriage of a stranger, for it is not from riage of a t ne relationship between the settlor and the settloe that gj^ ser ' the creditors or purchasers are debarred (e) By married -A. married woman might even before 1883 charge her woman of separate property by a gift on marriage to a stranger, separate w £ W ould not be considered a volunteer ( f). estate. v J ' Considera- The value of the marriage consideration is apart from tion of an( j independent of any money consideration which may ™ a8e e pass between the parties by way. of portion or other - whether any portion or ^ gee also LanCj 2 2 ; Pulvertoft v. Pulvertoft, 18 Ves. 92 ; not - Barharn v. Clarendon, 10 Hare, 126. (6) Jeston v. Key, L. R. 6 Ch. 610. (c) Nairn v. Prowse, 6 Ves. 752-9 ; and see 0' Gorman v. Comyn, 2 Seh. & Lef. 148. Divorce does not give the Court juris- diction to set aside the marriage settlement : Evans v. Carring- ton, 29 L. J. Ch. 330. See Merryweather v. Jones, 10 L. T. (N.S. ) 62. As to the jurisdiction of the Probate Division to alter a marriage settlement, see 22 & 23 Vict. c. 61, s. 5 ; Sykes v. Sykes, L. B. 2 P. & D. 163 ; Gladstone v. Gladstone, 1 P. D. 442; Benyon v. Benyon, 1 P. D. 447 ; 41 Vict. c. 19, s. 3 ; Yglesias v. Yglesias, 4 P. D, 71 ; Ponsonby v. Ponsonby, 9 P. D. 122. (d) Lechmerev. Carlisle, 3 P. Wms. 211 ; Barham v. Clarendon, 10 Hare, 132-3. (e) Nairn v. Prowse, 6 Ves. 752-9. (/) Power v. Bailey, 1 Ball & B. 49 ; and see now 45 & 46 Vict, c. 75. (5434) MARRIAGE CONSIDERATION. 349 wise, so that the quantum or inequality of pecuniary benefit does not in general affect the question (g). The question how far the consideration of marriage Extent of extends is one of great difficulty, and has given rise to considera- a series of conflicting and inconsistent decisions from a tlon ? l i ■ i marriage. very early period. b The general rule has been laid down to be that the Considera- valuable consideration of marriage extends only to t } on of mar " support interests given to the husband, the wife, and ™ ge °° y the issue of the marriage, and to no other person or per- limitations to sons (h). husband, wife, and Two exceptions, however, were made to this general lssue - rule — one *was in favour of settlements made [ *343 ] ^ ^ > g excep " by a widow before marriage on her children or other issue of a former marriage, or even on her illegitimate children (i) ; the other was in favour of settlements made on the issue of either the husband or the wife by a future marriage (A;). According to this view, when other limitations were supported it was, either because they came within one of these two exceptions, or because of the considerations of the particular contract ■frhich extended to, and com- prehended, the various interests of all the parties to the contract. As to the general rule, in several cases the marginal Effectofsome head-notes state that the case shews that theconsidera- . casesmis- stated in marginal (g) Ex parte Marsh, 1 Atk. 158-9 ; Brown, v. Jones, 1 Atk. 188, notes. 190 ; North v. Ansel!, 2 P. Wins. 618; Harvey v. Ashley, 3 Atk. 607 ; Ramsden v. Hylton, 2 Ves. 309 ; Prebble v. Boghurst, 1 Sw. 309, 319 ; Nairn v. Prowse, 6 Ves. 752, ante, p. 341. (/() Case of St. Saviour's in Soulhwark, Lane, 21, 22 ; Osgood v. Strode, 2 P. Wins. 245 ; Johnson v. Legard, 6 M. & S. 60, S. C. in Chancery, T. & R. 281 ; Sutton v. Chetwynd, 3 Mer. 249 ; Stac- poole v. Stacpoole, 4 Dr. & War. 320, S. C. 2 Con. & Law, 489 ; Ford v. Stuart, 15 Beav. 495 ; Cotierell v. Homer, 13 Sim. 506 ; Clarke v. Wright, 6 H. & N. 870 ; Smith v. Cherrill, L. K. 4 Eq. 390 ; Price v. Jenkins, 4 Ch. D. 483 ; Gale v. Gale, 6 Ch. D. 144 ; Maekie v. Herberison, 9 App. Cas. 303. See infra, where the above cases are all cited. (i) Newslead v. Searles, 1 Atk. 265 ; Clarke v. Wright, 6 H. & N. 849 ; Gale v. Gale, 6 Ch. D. 144 ; infra, p. 349. (k) Jenkins v. Keymis, 1 Lev. 150, 237, Hardr. 395, 1 Ch. Ca. 103 ; Den. d. Vernon v. Ogle, Lofft, 216-7 ; Sutton v. Chetwynd, 3 Mer. 249; Clayton v. Wilton, 3 Mad. 302, n., 6 M. & S. 67 ; In re Cullen's Estate, 14 Ir. Ch. Rep. 506; Wollaston v. Tribe, L. R. 9 Eq. 44; Maekie v. Herberison, 9 App. Cas. 303; infra, p. 350. 28 stat. or eliz. (5435) 350 THE EXTENT OP THE Clarice, v. Wright. Smith v. Cherrill. Mackie v. Merbertson. tion of marriage runs through all the estates raised by the settlement ; whereas, on reading the case, it ap- pears this is not the fact, but that the decision went on the particular circumstances (I). In the oldest reported case on the subject (m) it was held " that if a man doth, in consideration that his son shall marry the daughter of B., covenant to stand seised to the use of his son for life, and after to the use of other his sons in reversion or remainder, these uses thus limited in remainder are fraudulent against a pur- chaser, though the first be upon good consideration, viz., for marriage." In Harvey v. Ashley (n), Lord Hardwicke said : " The children born of the marriage are equally purchasers under both father and mother." So Lord Chief Justice Cockburn said in Clarke v. Wright (o) : "I can come to no other conclusion than that a limitation in a marriage settlement in favour of the re- lations of the settlor, other than the issue of the mar- riage, is not within the consideration of the marriage, and therefore, in the absence of any other considera- tion, must be taken to be voluntary." In the case of Smith v. Cherrill, (p), Sir It. Malins, V.C., said : " I have [ * 344 ] always understood and still understand * the law, as it was settled by the case of Johnson v. Legard (q), and by the same case as decided by Lord Eldon (r), and by many other cases, to be this : that when a marriage settlement goes beyond the immediate objects of the marriage, and (as in this case) there are pro- visions for collateral relatives from whom no valuable consideration moves, then, quoad those objects, the set- tlement has nothing to do with the marriage, but is to be considered as a, settlement purely for the purpose ef providing for those relatives." So in the most recent case of Mackie v. Herbertson (s), in the House of Lords (though a Scotch decision), Lord Selborne, L.C., said : "The considerations of the contract, though founded on marriage, must, I appre- (/) Ithell v. Beane, 1 Ves. 215 ; Jenkins v. Keymix, 1 Lev. 150 ; Stephens v. Trueman, 1 Ves. 73 ; White v. Stringer, 2 Lev. 105 ; see Price v. Jenkins, 4 Ch. D. 483. (m) St. Saviour's in Southwark, Lane, 21, 22. See also 2 Roll. Abr. 784. (n) 3 Atk. 610. (o) 6 H. & N. 870. (p) L. R. 4 Eq. 390. (q) 6 M. & S. 60, S. C. 3 T. & R, 281. (?■ T. & R. 281, S. C. 3 Mad. 283. (s) 9 App. Cas. 337. (5436) MARRIAGE CONSIDERATION. 351 hend, extend to all those terms of the contract on which depend the interest of the persons who are within the consideration of marriage ; and when they take only on terms which admit to a participation with them others who would not otherwise be within the consid- eration, then not the matrimonial consideration prop- erly so-called, but the considerations of the mutual con tract extend to and comprehend them." The general rule was first clearly and definitely laid Osgood v. down iu Osgood v. Strode (<), where (although a case Strode. in which limitations to collaterals were held valid from their having considerations other than that of the mar- riage to support them) Lord Macclesfield said: "The marriage and marriage portion support only the limita- tion to the husband and wife, and their issue ; this is all that is presumed to have been stipulated for by the wife and her friends." This case was clearly put on the footing of a contract, the extent of which is, by pre- sumption of law and by the reason of the value attached to the consideration of marriage, confined to the imme- diate objects of the marriage. Lord Hale's decision in Jenkins v. Keymis (u) at first Jenkins v. sight appears to be opposed to this, where he is re- Keymis. ported to have said : " The consideration of the mar- riage and of the marriage portion will run to all the es- tates raised by the settlement, although the marriage is not * concerned iu them so as to make them [ * 345 ] good against purchasers and to avoid a voluntary con- veyance," — words which have been often cited to shew that at that time it was thought that the marriage con- sideration would uphold any limitations in a settlement. But it is hard to see why these words should be carried beyond their most natural meaning, which is that they laid down no general proposition, but referred only to " the settlement " in that case. This not only recon- ciles this case with all the other authorities, but is con- firmed by a case (i>) decided a few years afterwards, in which the same judge took part, and where a limi- tation in a marriage settlement to a brother of the hus- (1) 2 P. Wms. 245, 255, commented on in Prize v. Jenkins, 4 Ch. D. 489, 490. See also StapleTiill v. Bully, Prec. Ch. 224 ; Beeves v. Reeves, 9 Mod. 132, per Lord Macclesfield ; Basse v. Gray, 2 Vern. 693 ; Gray v. Legard, 9 L. J. Ch. (O.S.) 80 ; Ford v. Stuart, 15 Beav. 499. (it) 1 Lev. 150, 237, Hardr. 395, 1 Ch. Ca. 103; and see note (y) next page. (v) Boscarrick v. Barton, 1 Ch. Ca. 217, 220. (5437) 352 THE EXTENT OF THE band was held voluntary, shewing clearly that he did not think every limitation supported by the considera- tion (w). The actual decision in Jenkins v. Keyrnis, however, that the limitation was not voluntary, is not opposed to the general rule. There was sufficient consideration apart from that of the marriage to uphold the limita- Considera- tion as valuable; and external considerations, whether tions other inferred from the terms and nature of the settlement or thtmarriaee supported by external proof, will support limitations ' not actually within the objects of the marriage (x). Jenkins v. The case was thus: at the time of the settlement the Keymis. father was tenant for life with remainder to the son (the husband) in tail male. By the settlement the es- tate was limited to the father for life, remainder to the son and his wife for their joint lives, and to the heirs male of the body of the son upon the body of his wife to be begotten, remainder to the heirs male of the body of the son with remainders over (y). This seems to come within the meaning of Lord Eldon's words (z), when he mentioned the case of persons not within the consideration of marriage directly, but who have al- ways been so considered, preventing the effect of the Father ten- statute. "In the case, for instance," he says, "of a an* for life r * 343-1 fattler tenant for life, with Remainder to his sorbin tail. son i Q tail, they may agree, upon the marriage of the son, to settle, not only upon his issue, but upon the brothers and uncles of that son; and the question would be whether they, though not within the consid- eration of the marriage, are not within the contract be- tween the father and the son; both having a right to insist upon a provident provision for uncles, brothers, sisters, and other relations, and to say to each other, 'I will not agree unless you will so settle.' The Court has held such a claim not to be that of a mere volunteer; but as falling within the range of the consideration; and therefore these statutes would not bear upon it." (w) In Den. d. Vernon v. Ogle, Lofft, 21 6, Jenkins v. Keymis was spoken of as within one of the exceptions to the general rule; see 1 Lev. 237, and post, pp. 353, 356. (a;) Clarke v. Wright, 6 H. & N. 849, 877; Price v. Jenkins, 4 Ch. D. 486-488, S. C. 5 Ch. D. 619 ; Gale v. Gale, 6 Ch. D. '44 ; In re Sheridan, L. R. 1 Ir. 54 ; Mackie v. Herberlson, 9 App. Cas. 303. (?/) Hardr. 395, 1 Lev. 237. But see 1 Lev. 150 and 1 Ch. Ca.' 103, where the limitations are rather differently stated. (z) In Pulvertoft v. Pulvertoft, 18 Yes. 84, 92;. post, pp. 363,364. (5438) MARRIAGE CONSIDERATION. 353 This case was commented on by Hal], V.C., in Price v. Jenkins, (a), and there explained to be a special bar- gain between father and son for that particular settle- ment, as well as a contract which arose from, and was supported by, the consideration of the portion coming from the wife. One exception to the general rule (b) has been made £ irst e ^5". ■ ,, . ,„ 6 , , . , v ' , • tion. Child- rn the case of a settlement by a ividoiv on her marriage, ren or j^g in favour of her children or other issue of a former of a former marriage, or her illegitimate children. marriage, or illegitimate This was first laid down by Lord Hardwicke in New- clllldren - stead v. Searles (c). Newsleadv. Searles. The facts in that case were as follows: — A widow, having two grandchildren unprovided for, on her sec- ond marriage, with her intended husband's concurrence, settled her lands (if no issue of the marriage) on her said grandchildren equally, provided that any child or children of the then marriage should have an equal share with the grandchildren. Lord Hardwicke held the limitation to the grandchildren valid. He said : "The question is, whether the articles of the 30th of April 1709 are for a valuable consideration and binding, or ought to be considered as voluntary and fraudulent, with respect to subsequent creditors or purchasers? If. I was to lay it down as a rule that such articles as these are not binding, it would become impossible for a widow on her second marriage to make any certain provision for the issue of a former, and the second *hus- [ * 347] band might then contrive to defeat the provision made for those children. I am of opinion that these articles ought not to be considered as a voluntary agreement, and that the plaintiffs are entitled to relief in this Court. This is the case of a widow, who has two chil- dren by a former husband, and no provision made for them, and those two children have each of them a child, and the mother being in possession in her own right of freehold estate, leasehold, and copyhold, the second husband, if [there had been a child born alive, would have been entitled to be tenant by the curtesy of the freehold, and also to the leasehold and copyhold imme- diately upon the marriage." (a) 4 Ch. D. 487, 488. (b) Supra, p. 342; Chapman v. Emery, Cowp. 278, 280; Cruise, Dig. 4th ed. vol. 4, p. 443; lfhell v. Beane, 1 Ves. 215; Chapman v. Bradley, 33 Beav. 65; Gale v. Gale, 6 Ch. D. 144. (c) 1 Atk. 265. (5439) 354 THE EXTENT OF THE It should be observed that Lord Hardwicke in this case really decided two questions. The first was that the grandchildren of the first mar- riage could maintain a bill for performance of the arti- cles of settlement, although no consideration moved from them, and although they were not parties to those articles. The second was that the statute of 27 Eliz. c. 4, did not apply, and that therefore the grandchildren were not volunteers, so far as related to the consideration (d). Clarke v. In the leading case of Clarke v. Wright (e) the case Wright. f Newstead v. Searles ( / ) was carefully reconsidered and followed both by the Court of Exchequer (g) and the Court of Exchequer Chamber (h), but upon differ- ent grounds in the two Courts. The settlement in, that case was of real estate, and was made by a widow on her second marriage on her- self for life, remainder, as to part, to her husband for life, with remainder to her own illegitimate son, and as to the other part to the son in fee. After the marriage she and her husband mortgaged the property. The only question for the decision of the Court was whether the limitation in this settlement to the illegiti- mate son was valid, as against a subsequent mortgagee, under 27 Eliz. c. 4. Baron Channell, in delivering the judgment of the [ * 348 ] Court of *Exchequer, referred to Newstead v. Searles (i), and said: "It was a direct authority that a settlement by a widow, about to marry, upon her children by a former marriage, is good against a subse- quent mortgagee." In the Court of Exchequer Chamber Lord Chief Jus- tice Coekburn, after elaborately commenting on the (d) Gale v. Gale, 6 Ch. D., per Fry, J., 148, 149. (e) 6 H. & N. 849. (/) 1 Atk. 265. (g) Dickenson v. Wright, 5 H. & N. 401, 412. (h) 6 H. & N. 873. (i) 1 Atk. 265. See Ex parte Marsh, 1 Atk. 158 ; King v. Cotton, 2 P. Wnis. 674; England v. Downs, 2 Beav. 522; Rock v. Dade, Mth. S. 1709, post, Appendix No. XIII., commented on in Price v. Jenkins, 4 Ch. D. 485, 486. (5440) MARRIAGE CONSIDERATION, 355 doctrine that collaterals and third parties are not with- in the actual consideration of the marriage itself, and expressing an opinion that in that case no external con- sideration could be presumed or allowed, went on to say: "Nevertheless I am of opinion that this limita- tion should be upheld. Upon the rule that in a mar- riage settlement a limitation in favour of the relations of the settlor, other than the issue of the marriage, will be invalid, two exceptions have, it seems to me, been engrafted by very high authority. In Newstead v. Searles (k) Lord Hardwicke held that in a marriage settlement the settlor might introduce a limitation in favour of the children of a former marriage (I); while in Clayton v. The Earl of Wilton (m) Lord Ellen- borough and the Court of King's Bench upheld against a purchaser for value a similar limitation in a marriage settlement, in favour of the issue of the settlor by a future wife in default of issue of the intended marriage. These decisions ha«re never, so far as I am aware, been impugned. The decision of Lord Hardwicke in New- stead v. Searles (n), which has now stood for upwards of a century, is cited by Lord St. Leonards in a recent work as an existing authority. It is evident that Lord Hardwicke considered that a provision in a marriage settlement in favour of existing children could not be deemed fraudulent within the statute. It may be that these decisions would not stand the test of a very strict analysis or rigorous logic; but it must be borne in mind that the rule on which this exception was engrafted was itself the result of a very forced and arbitrary con- struction of the statute. It is not to be *won- [ * 349 ] dered at that judicial exposition stopped short of apply- ing it when the consequence was to prevent the owner of property, on making a settlement on marriage, from making any binding provision for his existing children. We ought not, in my judgment, to overrule the cases to which I have referred. Having stood thus long unim- peached, they may have led to the introduction of simi- lar provisions into many settlements, and we cannot tell what mischief we may occasion by overturning them, (fc) 1 Atk. 265; West, t. Hardw. 287. (Z) This statement does not appear to be borne out by the case itself. Lord Hardwickesimply decided this point when such settle- ment was made by a widow. See his judgment supra, p. 346. It has moreover been doubted whether different considerations did not apply when such settlement was made by a widower. See infra, pp. 352 et seq. (m) 3 Mad. 302, n. (n) 1 Atk. 265. (5441) 356 THE EXTENT OF THE while no mischief can arise from sanctioning such limi- tations beyond what arises from their introduction in favour of the issue of an intended marriage. The present case appears to me to come directly within the principle of Newstead v. Searles (o). It was as much the duty of the settlor M. D. to make provision for her illegitimate son as though he had been legitimate." On this case, Hall, V.C., in Price v. Jenkins (p) ob- served that it would be very difficult to apply the prin- ciple of its decision to any other case not exactly sim- ilar in its circumstances. The grounds of the decisions were different in the Court of Exchequer, where the case was first determined by four judges, from those in the Court of Appeal ; and the grounds of the decision in that Court not only differed, but differed as regarded the judges who agreed with the decision of the Court of Exchequer. Gale v. Gale. These cases were again carefully reviewed by Lord Justice Fry, then Mr. Justice Fry, in Gale v. Gale (q), and followed. In that case, a widow, on her second marriage, by a settlement to which she and her intended husband and a trustee were parties, in pursuance of an agreement between her and her intended husband, covenanted with the trustee to surrender certain copyhold premises to him, to be held by him upon trust for her for life for her separate use, and after her decease upon trust for her children by her first husband and their children. She died after her second husband, having devised the copyhold premises (which had not been surrendered) to her children absolutely, except one cottage, which she devised to her sister for life. Fry, J., after pointing out that there was considera- [* 350] tion for the * settlement but no consideration from the children, and commenting on Newstead v. Searles (o), said: "It seems to me that Newstead v. Searles (o) is all that is Decessary for determining this case. I find here a widow with children by a former marriage, an agreement for a settlement upon those children, a husband giving up a benefit, a wife dealing with her property, and a marriage upon this agreement, (o) 1 Atk. 265. (p) 4 Ch. D. 485. (j) 6 Ch. D. 144. (5442) MARRIAGE CONSIDERATION. 857 and the issue of the first marriage instituting proceed- ings, and I find in that case the same circumstances and the Court confirming the articles of settlement." He then referred to the judgment of Lord Chief Jus- tice Cockburn in Clarke v. Wright (r) as a most em- phatic approbation and adoption of Newstead v. Searles (s) in its integrity. In the most recent case of Mackie v. Herbertson (t) Macltie\. in the House of Lords, a settlement by a widow on her Herbertson. second marriage, upon her children by her first hus- band, was upheld; but upon a diflwent ground from that given by Mr. Justice Fry in Gale v. Gale (w) as the ground of his decision, or in his view of Lord Hardwicke in Newstead v. Searles (s). In that case the question was the construction of a Scotch ante-nuptial settlement. The widow and her then intended husband by ante-nuptial contract of mar- riage, to which they alone were parties, conveyed to trustees all her real and personal property, upon trust for life, and after her decease " for behoof of the children procreated and to be procreated of the body of the said Mrs. H. C. or M." as she should by writing appoint, and in default among them in equal shares. She had then living three children of the first marriage. Lord Selborne, L. C. in the course of his judgment, said: "If any English authorities were fit to be re- garded in a question of this kind as to what is and what is not within the consideration of the contract, the cases of Newstead v. Searles (s) and Clayton v. Lord Wilton (v) would be very much to the purpose. New- stead v. Searles (s) was a case of this kind. There was a marriage contract, and there was a gift in re- mainder to the existing children of a former marriage, subject to letting in those who might afterwards be born of the intended marriage ; and when they came into * existence the state of things would be [ *351] such as we have here. Upon those circumstances Lord Hardwicke, a very great judge, entertained no doubt that the considerations of the contract included the earlier children, because their interests and those of M 6 H. & N. 849, 873. (s) 1 Atk. 265. (t) 9 App. Cas. 336, 337, 342. («) 6 Ch. D. 144 ; supra, pp. 349, 350. (t>) 3 Mad. 302, n. (5443) 358 THE EXTENT OF THE the children of the marriage which afterwards took place were so dealt with that the stipulations for those children who were within the marriage consideration were made dependent upon the agreement that the others should take as they did. The children within the consideration were to take upon certain terms, and without giving them either more or less than that which the contract gave them it was impossible to disappoint the others. Exactly the same was the principle of the case of Clayton v. Lord Wilton (w), though the form in which the question was raised was different, because it was a limitation by way of remainder occurring after a gift to male issue who were within the consideration of marriage, and be- fore another gift to female issue in the like situ- ation. I should hesitate very much to rely upon English authority in any case in which there was really Scotch authority to the contrary, even when the matter decided in the English cases was upon a point which in reason ought to be common to the jurisprudence of all countries. The considerations of the contract, though founded on marriage, must, I apprehend extend to all , those terms of the contract on which depend the inter- ests of the persons who are within the consideration of marriage; and when they take only on terms which admit to a participation with them others who would not otherwise be within the consideration, then not the matrimonial consideration properly so-called, but the considerations of the mutual contract extend to and comprehend them." Such settle- ^ w ^"' be seen ^ rom these cases that a settlement ment upheld made by a widow on her marriage on her children or on two differ- other issue of a former marriage or her illegitimate ent grounds. c hii. 489; Lord Selborne, L.C., in Maekie v. Herbertson, 9 App. Cas. 337 ; and Dart, V. & P. 5th ed. 897, 899. (s) 1 Atk. 267; supra, p. 346 ; see comments of Hall, V.C., in Price v. Jenkins, 4 Ch. D. 488. (t) 2 Con. & Law. 502. («) 1 L. R. Ir. 54. (5448) MARRIAGE CONSIDERATION. 363 It is conceived, however, that the true view in this The particu- case also is * that such limitations are not [ * 356 ] lar limitation within the marriage consideration, and that the real £ mat ter of question is, upon the construction of each particular bar S aln - settlement, is there or is there not a bargain, whether between husband and wife, or between one or both of them any other person or persons, as to these limita- tions? (v) This view appears to be borne out by the most recent cases, and many of the older cases can be so supported. Jenkins v. Keymis (iv) was explained by Hall, V.G., in Price v. Jenkins (x) as a bargain between father and son which supported the limitations in favour of the issue of the son by any marriage. Clayton v. Wilton (y) was so treated by Blackburn, J., in Clarke v. Wright (z). Blackburn, J., held that the limitations in Clarke v. Wright (z) were made part of the marriage contract, part, of the reciprocal con- siderations between husband and wife, and were not voluntary (z). This view was followed by Hall, V.C., in Price v. Jenkins (a). In Ireland, in In re Cullen's Estate (6), a man on marriage settled-his real estate, after limitations within the marriage consideration, to the use of his sons of the intended marriage in tail male, and, in default of issue male, to the use of his daughters as tenants in common in fee. It was laid down that the question was whether this limitation to daughters of a future mar- riage had or had not been the subject of a stipulation, and that, as such stipulation did not appear, the daugh- ters were volunteers. In Wollaston v. Tribe (c) a limitation to children of any future marriage in a settlement by a woman was said by Lord Bomilly, M. B., to be not within the con- sideration of marriage, and purely voluntary. (») Sweet, Conv. 2nd ed. 968, 969; Eversley, Dom. Eel. 165. (w) 1 Lev. 153, Hard. 295; and see Den v. Ogle, Lofft. 216, and White v. Stringer, 3 Keb. 322, S. C. 2 Lev. 105. (x) 4 Ch. D. 486-488; supra, p. 353. \y) 3 Mad. 302, n. (z) 6 H. & N. 849, 859; Willes, X, concurred. (a) 4 Ch. D. 483. (b) 14 Ir. Ch. Rep. 506; and see In re Sheridan, 1 L. E. Ir. 54. (c) L. R. 9 Eq. 44. (5449J 364 THE EXTENT OF THE Limitations in marriage contract a question of bargain. In the most recent case of Mackie v. Herbertson (d), [ * 357 ] in the House * of Lords, the limitation was "and for behoof of the children procreated, or to be procreated, of the body of the said Mrs. Helen Camp- bell or Mackie," as she should appoint by writing, and in default equally among them. Lord Selborne, L.C., held that the principle of Newstead v. Searles (e) and Clayton v. Wilton (/) applied — namely, that such a limitation had been the subject of a stipulation. It is submitted that the only way to reconcile the various contradictory decisions on this subject is to adopt the view laid down by Lord Blackburn (then Mr. Justice Blackburn), and concurred in by Willes J., in the Court of Exchequer Chamber, in Clarke v. Wright (g), and followed by Hall, V.O., in Price v. Jen- kins (h). According to the principles laid down in these caseB, the real question is, what was the marriage bargain or contract? The marriage bargain is like any other mu- tual agreement in which there are many terms ; the promise by the one party to be bound by all the terms is a consideration for the promise of the other party to be bound by all the terms, so that none of them are without consideration (i). The question, then, in each particular case is to determine whether the particular limitation has or has not been contracted for. Once that a particular limitation is either inferred by law or found by extrinsic evidence to have been stipulated for, that moment the limitation is included in the contract, becomes attached to the consideration, and is a limita- tion for value (k). This view, which it is conceived would be probably now followed by the Court, seems to harmonize all the various cases on the subject. It reduces the question to one of the construction (d) 9 App. Cas. 303; supra, p. 350. • («) 1 Atk. 265. (/) 3 Mad. 302, n. (g) 6 H. & N. 849 ; Dart, V. & P. 5th ed. 893 ; Banning, Mar- riage Settlements, 2, 3. (ft) 4 Ch. D. 483 ; and see Mackie v. Herbertson, 9 App. Cas. 303 ; ante, pp. 350, 351. (») Clarke v. Wright, 6 H. & N. 863, per Blackburn, J. ; and see Dilkes v. Broadmead, 4 D. F. & J. 576. (k) Mullins v. Guilfoyle, L. R. 2 Ir. C. L. 10. (5450) MARRIAGE CONSIDERATION, 365 of the marriage contract. The problem for solution, Real ques- then, is, what was the intention of the parties to that tion, what contract? did parties to the marriage *The degree of relationship to either of the [*358] intend? settlors of the person whose interest under the settle- ment is challenged in this view is only material so far as it affects the presumption that such limitation was the subject of a bargain by some or one of the parties fo the contract. That presumption will be made by the law in the case Bargain, of a limitation in favour of a husband, wife, or the issue when infer- of the intended marriage (I). red b y law - In any other case, it is conceived, the onus of proving -^en bar . that the particular limitation was the subject of a bar- gain must be gain rests with the person who seeks to uphold thatlim- proved, and itation as made for value. by wllom - This presumption will be readily made in the follow- Presumption ing classes of cases : — readily made: Whenever the limitation has been created in favour of 1. if limita- a person who is not a relation of the grantor of that limi- tion to a tation, it will readily be inferred to have been the re- P erso . n not a ,, i u • / \ relation 01 suit of a bargain (m). grantor. So if a limitation is created in favour of the collateral relations of the party to whom the property does not belong, it may well be presumed that such party stipu- lated, as part of the marriage bargain, for its insertion into the settlement, and so that party may be properly regarded as having purchased it on behalf of those who are to be benefited thereby (m). The reason for this presumption being made is that, without it, the appear- ance of such a limitation in the settlement is difficult to account for. This presumption may be also made if the person in favour of whom such limitation is created is an absolute stranger in blood to the person to whom the property does not belong (n) ; for the difficulty of otherwise ac- (l) Ante, p. 342 ; Mackie v. Rerbertson, 9 App. Cas. 337 ; and seelnreD'Angibav, 15 Ch. D. 242; Sweet, Conv..2nded. 968. (m) Dart, V. & P. 5th ed. 894, f> ; Clarke v. Wright, 6 H. & N. 877, per Williams, J. ; In re Browne's Estate, 13 Ir. Ch. Rep. 295 ; Jfullins v. Guilfoyle, L. R. 2 Ir. C. L. 101. (») Clarke v. Wright, 6 H. & N. 863, per Blackburn, J. 29 STAT. OF ELIZ. (5451) 366 THE EXTENT OF THE counting for the limitation in the settlement seems just as great in this case las if the limitation was in favour of a collateral relation. 2. When [* 359] *It has been considered that this presump wife is settlor tion may be also made where the intended wife is the arid hmita- se ttlor, and the limitation which it is sought to support 4-iAn in +Vi iron v* , _ " ■*-■*■ as made for value is one in favour of her collateral rela- tions. tion in favour oi'her collateral relotions. Effect of Married Women's Property Act, 1882. Two reasons have been assigned for this presump- tion. One is that a limitation in favour of the wife's collateral relations so far derogates from the husband's marital rights that a special stipulation by the intended wife on behalf of her collateral relations may be fairly presumed — so as to have made her a purchaser of that limitation (o). The other reason is, that as a woman, by reason of the disability of marriage, could hot make any provi- sion for her collateral relations during her husband's life, so she might fairly be presumed to have stipulated for the limitation in their favour upon a settlement of her own property on her marriage (p), and in this way to have purchased the limitation. The Married Women's Property Act, 1882, has, how- ever, greatly lessened the importance of this presump- tion where the intended ivife is the settlor, by enabling a woman married after 1882 to hold all her property, both real and personal, as her separate property, inde- pendently of her husband (q). The husband has now no possible interest in, or right over, bis intended wife's personal property with which he can bargain; so that the class of cases in which this presumption may be applied becomes limited to those in which the intended wife is the settlor of real property, and to which the right to curtesy could attach (r). This presumption may also, it is conceived, be raised (o) Dart, V. & P. 5th ed. 894; In re Cullen's Estate, 14 Ir. Ch. Rep. 510; Gale v. Gale, 6 Ch. D. 144; and see Ithell v. Beane, 1 Ves. 215, commented on in Price v. Jenkins, 4 Ch. D. 489, 490. {p) Clarke v. Wright, 6 H. & N. 849; In re Cullen's Estate, 14 Ir. Ch. Rep. 510. (q) 45 & 46 Vict. c. 75, ss. 1 (1), 2. (r) But see Shurmur v. Sedgwick, 24 Ch. D. 597; In re Cullen's Estate, 14 Ir. Ch. Rep. 510; ante, pp. 292, 295. See also Griffith, 5th ed. pp. 10, 59. (5452) MARRIAGE CONSIDERATION. 367 in a certain limited class of cases where the limitation 3. When is in favour of collateral relations of the settlor — name- limitation to ly, in those in which the * limitation which it [* 360] g°^ er ? ls of is sought to support is placed between two limitations, i e t ween t w0 each within the consideration of marriage (s). limitations ' to issue. The ground of this has been said by Lord St. Leon- ards to be that there is a limitation subsequent to that which is sought to be supported, within the considera- tion, which must be supported, and that necessarily in- volves the support of the intermediate limitation (t). The Court in such cases holds the whole of the limita- tions to be effectual in order that it may give effect to that which, being within the consideration, must have effect given to it (u). This presumption cannot, in general (u), be made in the following two classes of cases: — If the husband is the settlor, or, in general, if the No presnmp- wife is the settlor and has married since 1882; and the tion of limitation is in favour of collateral relations of the set- bargain: xi 1. If husband UOT - is settlor, or now if wife is The reason for this is the same in each case — name- settlor; and ly, that there is nothing to prevent the settlor from limitation to creating limitations in favour of collateral relations or g?Ji ( !T a S ° other persons during his or her marriage out of prop- erty under his or her control; since the settlor is under no disability by reason of marriage (w); and, there- fore, no presumption can be made on that ground. And further, such a limitation is in favour of persons outside the consideration of marriage, and therefore is regarded as voluntary, unless a special bargain for its insertion can be proved. Moreover, in such a case it is difficult to see how the person to whom the property belonged can be considered to have purchased any of (s) Sug. V. & P. 14th ed. 716; In re Sheridan's Estate, 1 L. R. Ir. 54; Clayton v. Wilton, 3 Mad. 302, n., S. C. 6 M. & S. 60; Dart, V. & P. 5th ed. 899; ante, pp. 354, 355. (t) Slackpoole v. Stackpoole, 2 Con. & Law, 502; ante, p. 355. (a) Per Hall, V.C., in Price v. Jenkins, 4 Ch. D. 488; and see the judgment of Lord Selborne, L.C., in Maekie v. Herbeftson, 9 App. Cas. 335-337. (v) Ante. pp. 358, 359. (w) 45 & 46 Vict. c. 75, ss. 1 (1), 2; In re Cullen's Estate, 14 Ir. Ch. Rep. 510; Dart, V. & P. 5th ed. 894; Gale v. Gale, 6 Ch. D. 152, 153. (5453) 368 THE EXTENT OF THE the limitations of that property on behalf of these col- lateral relations (x). [ * 361] *It will be observed that, in the various cases which establish this proposition, the limitation in favour of collateral relations of the settlor is never fol- lowed by limitation to persons within the considera- tion of marriage; and is frequently the ultimate limi- tation. The question that has always arisen is whether this limitation, and all other limitations subsequent to it, were or were not void against a creditor or subse- quent purchaser for value under the statutes of Eliza- beth (y). 2. Ultimate Upon the same principle an ultimate limitation of limitation to the settlor's property to himself or herself has been held to be voluntary; because there was no evidence of any bargain for it, as the other party to the settlement could not have been assumed to bargain for the inser- tion of such a limitation (z). settlor. The remote- ness of a limitation to a collateral formerly a ground to support it. The remoteness of a limitation to a collateral has been adduced in some old cases as an argument in favour of its validity (a). For this purpose Osgood v. Strode (b) is relied on, where all Lord Macclesfield said was, in commenting on Jenkins v. Keymis (c), that the limitation there "could not well be intended to have been made to cheat a creditor unless the per- son making the same were then in debt; the very, re- moteness of the limitation was an evidence that such limitation was not intened to cheat cred- itors." It was, in fact, a case of a subsequet purcha- ser (a mortgagee), but Lord Macclesfield's words can (x) See the judgment of Christian, J., in In re Browne's Estate, 13 Ir. Ch. Rep. 295; Williams, J., in Clarke v. Wright, 6 H. &N. 877; and Heap v. Tonge, 9 Hare, 104, per Turner, V.C. (y) Sutton v. Chetwynd, 3 Mer. 249; Sug. Prop. Ho. Lords, 153; Johnson v. Legard, 3 Mad. 283, n., S. C. 6 M. & S. 60; Cot- tcrell v. Homer, 13 Sim. 506; Staekpoole v. Stackpoole, 4 Dur. & War. 320; S. C. 2 Con. & Law. 489; Kekewich v. Manning, 1 De G. M. & G. 176; In re Cullen's Estate, 14 Ir. Ch. Rep. 502; Smith v. Cherrill, L. R. 4 Eq. 390; Wollaslon v. Tribe, L. R. 9 Eq. 44; Re D'Angibau, 15 Ch. D. 228; Paul v. Paul, 15 Ch. D. 580 S C 20 Ch. D. 742. (z) Barham v. Earl of Clarendon, 10 Ha. 126; Massryy. Travers, 10 Ir. C. L. Rep. 459; In re Browne's Estate, 13 Ir. Ch. Rep 502- and see Gibbs v. Grady, 41 L. J. (N.S.) Ch. 163. (a) Sug. V. & P. 14th ed. 716; Dart, V. & 1 . 5th ed. 899; and see Staplehill v. Bully, Pr. Ch. 224. lb) 2 P. Wms. 245, 255. (c) 1 Lev. 150, 237, Hard. 395. (5454) MARRIAGE CONSIDERATION. 369 only be taken to apply to subsequent creditors, as to whom even a voluntary limitation (without fraud) will doubtless be valid. That case can therefore hardly be said to favour the proposition that the remoteness of a limitation will make it valid against prior creditors or subsequent purchasers. *In White v. Stringer (d), again, the limi- [* 362] Limitation to tation being subsequent to a vested estate tail "which collaterals liter vested might endure for ever " was said to be a point in its es t a t e tail favour; but in that case there were other reasons for formerly holding it valid — viz., notice to the purchaser and a supported, collateral security taken by him against this very limi- tation (e). A limitation in favour of collateral relations or Limitation in others in a marriage settlement (which so far as the favour of col - husband and wife are concerned is voluntary) may laterals good often be supported as made for value upon another ma ^g \^^ m ground. third person. That ground is that the bargain for the insertion of the particular limitation was made by a third person without whose concurrence the settlement could not have been made (/). In Roe v. Mitton (g) this subject was fully discussed. Hoe v. Hilton. It was thus: John Hamerton, being seised in fee of lands, settled them on his marriage with remain- der, after those to the sons of the marriage, to two of his brothers severally and successively in tail male, remainder to the daughters of the marriage. The mother of J. H. was a party to the settlement, and it appeared that she had an annuity of £50 issuing out of the whole of the lands, and that she joined in levying a fine and executing the settlement, for the purpose of releasing part of the lands from her annuity, so that they might be settled. Lord Chief Justice Wilmot said there was a good and valuable considera- tion to support the limitation to the brothers; the whole of the question turned on the mother's joining in the settlement; the friends and relations of the in- tended wife must be supposed to say, " M. shall not (d) 2 Lev. 105, 3 Keb. 322; Dart, V. & P. 5th ed. 899. (e) See ante, p. 186, note (i). (/) Heap v. Tonge, 9 Hare, 90; ante, pp. 262 et seq. (g) 2 "Wils. 356. See 3rd ed. 358, n. ; Myddleton v. Kenyon, 2 Ves. Jun. 391. (5455) 370 THE EXTENT OF THE Stepltens v. Trueman. Jones v. Boulter. Limitations in favour of collaterals supported when in family settle- ments. marry your son unless you will give up or take off your annuity from the whole of the lands and let it be charged upon a part thereof." The mother answers, " If you want my assistance you shall pay for it — i. e., you shall limit the estate to my younger sons in pre- ference and priority to the daughters of the marriage on failure of issue male." This is a good considera- tion to John the son (and the quantum is not at all material). He purchases his wife by his mother's [ * 363] concurrence. To the *objection that the hus- band being seised in fee could have made the settle- ment without the mother, the answer is, that he could not have made a settlement agreeable to the lady's friends without the mother's aid (h). In Stephens v. Trueman (i) a father, on the mar- riage of his daughter, agreed to pay down £500 to which she was not entitled till after his death ; and it was also agreed that certain real estate belonging to the daughter should be settled on her and her issue, with remainder to the father and his heirs. The hus- band v and wife died without issue. Lord Hardwieke decreed specific performance of the articles in favour of the father's heirs, on the ground that "for the precari- ous and remote interest limited to the father the ad- vancing £500 by him was a sufficient consideration, al- though not mentioned for a consideration, but natural love and affection only ; for the whole must be taken entire, the one part to influence the other." And where a mother joined in conveying to her son on his marriage a small estate out of which she was dowable, this was held sufficient to support a settle- ment of another estate of which the father was seised in fee on the father for life, remainder to the mother for life, remainder to the uses of the marriage (k). Closely connected with these last cases is a class of cases which partakes of the nature of family settle- ments (I) as well as of ordinary marriage settlements. This is the case where on the marriage of a son, the familv estates are resettled; where the father as tenant (h) See Sir R. P. Arden's comments on this case in Brown v. Carter, 5 Ves. 877-8. (0 1 Ves. 74. (k) Jones v. Boulter, 1 Cox, 288. {I) Ante, pp. 263 et seq. (5456) MARRIAGE CONSIDERATION. 371 for life and the son as tenant in tail agree to modify their respective interests in the settlement, Limitations in favour of collateral relations of the son, one of the settlor's, are here supported, as for value, on the ground that they were the consideration for the concurrence of the father, without which the resettlement could not have been effected (m). *So Lord Chief Justice Cockburn in Clarke [* 364] v. Wright (n) said: "The case of a father, tenant for life, who joins his son, the remainderman in tail, in a settlement on the marriage of the son, stands on an en- tirely different footing, and is open to very different considerations. There the co-operation of the tenant for life being necessary to the resettlement of the es- tate, he has a right to stipulate for what terms he pleases as the price of his concurrence; among others, for that of a provision for his other children and their issue, or the like. The consideration there is not the marriage, but the consent of the settlor to give up his existing life estate, and resettle the estate" (w). (m) Stackpoole v. Stackpoole, 2 Con. & Law. 502 ; Pulvertoft v. Pulvertoft, 18 Ves. 84, 92 ; Jenkins v. Keymis, 1 Lev. 150, ante, p. 345; Osgood v. Strode, 2 P. Wms. 256, ante, p. 344; Neevev. Keck, 9 Mod. 106; Dart, V. & P. 5th ed. 898. (re) 6 H. & N. 870. (5457) [ * 365 ] * CHAPTER V. POST-NUPTIAL SETTLEMENTS AND ANTE-NUPTIAL AGREEMENTS. Post-nuptial To settlements made after marriage of course the con- settlements sideration of the marriage does not extend ; so that, in_general un less there are other considerations to support them, vo un ary. ^ ey &re regarded as purely voluntary (o). What consi- derations support them. Additional portion. An additional portion brought by the wife after mar- riage is a sufficient consideration, both as against cred- itors and purchasers, on which to found a post-nuptial settlement by the husband on her and her children (p); and in like manner an agreement by the friends of the wife to settle will be sustained, if made in considera- tion of a gift by the husband's friends (q). On this point Lord Hardwicke said (r) : "It is ad- mitted, if a settlement is made before marriage, though without a portion, it would be good, for marriage itself is a consideration ; and it is equally good if made after marriage, provided it be upon payment of money as a portion, or a new additional sum of money, or even an agreement to pay money, if the money be afterwards paid pursuant to the agreement ; this is allowed both in law and equity to make it a good and valuable set- tlement." Advance by So, also, in Wheeler v. Caryl (s), Lord Hardwicke laid third person, it down as a general principle, that " If after marriage her (the wife's) father, or other person, in considera- tion of the husband making a settlement, advance a sum of money, such a settlement will be good and for valuable (o) Wheeler v. Caryl, 1 Amb. 121 ; Warden v. Jones, 2 De G. & J. 76 ; ante, p. 342. {p) Colvile v. Parker, Cro. Jac. 158, Prec. Ch. 101, 425; Coven- try -v. Coventry, Gilb. Eep. 160 ; Jones v. Marsh, Ca. t. Talb. (Forr. ) 64 ; Ward v. Shallet, 2 Ves. 16 : Ramsden v. Eylton, 2 Ves. 308 ; Lanoy v. Aihol, 2 Atk. 444-6 ; Maguire v. Nicholson, Beatt. 592. (q) Brown v. Jones, 1 Atk. 188 ; Tweddle v. Atkinson, 1 B. & S. 393. (r) Brown v. Jones, 1 Atk. 190. (s) 1 Amb. 121. (5458) POST-NUPTIAL SETTLEMENTS. 373 consideration ;" and a refusal by a trustee * to [ * 366 ] pay the wife's money without a settlement will support the settlement (t). And, as in analogous cases, the amount of the addi- Amount im- tional portion is not material, unless the inadequacy is mat erial. so great as to induce the presumption of collusion (w). Where the question was whether, in a settlement made after marriage, by which a very large estate was settled, and the consideration whereof was an additional por- tion of £ 100, the settlement should not be considered as voluntary, the portion being so much out of propor- tion to it, Lord Talbot said " he would not weigh con- siderations in diamond scales ; that there was a moral obligation to provide for a wife and children, and he would not suffer the deed to be infected with doctrine of voluntary estates" (v). And an annuity granted to a wife by her husband is Gift to wife sufficient consideration to support as against the cred- in considera- itors of the wife's father a grant by him to the wife of ^1;^ an annuity for her sole and separate use (u). her. It is an undecided point whether, under the combined Will release effects of the Conveyancing Acts, 1881 and 1882 (w), m disclaimer and the Married Women's Property Act, 1882, a wo- °^°^ y man married after 1882, or, if married before 1882, woman now only as to property which has accrued to her after that support post- date, can now release, extinguish, or disclaim a power nuptial over real and personal property, except as she could se emen have done before 1883 (x). It would, however, appear that she can do so by the indirect means of contracting or covenanting not to ex- ercise the power (y) ; and so may, in effect, release, ex- tinguish, or disclaim it. If such married woman can now release, extinguish, (<) Moor v. Rycault, Prec. Ch. 22 ; Brown v. Jones, 1 Atk. 188; Sug. V. & P.. 14th ed. 718 ; ante, pp. 296, 297. (u) Ex parte Draycolt, 2 Glyn & J. 283 ; ante, pp. 245, 247. (v) Case cited by Wilmot, C. J., 2 Wils. 3rd ed. 358*. Proba- bly Jones v. Harsh, Ca. t. Talb. (Forr. ) 64. (w) 44 & 45 Vict. u. 41, s. 52 ; 45 & 46 Vict. e. 39, s. 6. (x) 45 & 46 Vict. c. 75. ss. 1, 2, 5, 24. Compare the use of "dispose of" in 3 & 4 Will. 4, c. 74, s. 77. Lush, H. & W. 69 ; Griffith, 5th ed. 28 ; Wolst. Conv. 3rd ed. 7 ; Eversley, Dora. Eel. 144-145 ; K. & E. Prec. 2nd ed. vol. 1. 90. (y) 45 & 46 Vict. c. 75, s. 1 (2) ; Griffith, 5th ed. 16-17 ; Lush, H. & W. 69 ; Isaac v. Hughes, L. E. 9 Eq. 191. (5459) 374 POST-NUPTIAL SETTLEMENTS [ * 367 ] or disclaim * a power, without the concurrence of her husband, then such release, extinguishment, or disclaimer by her will no longer avail as a considera- tion to support a post-nuptial settlement of property by her ; unless she contracts or covenants for value not to exercise that power. Bargain be- A. post-nuptial settlement, of real estate, might also tween have been supported by proof that there was a bargain husband and f or j^ between husband and wife, by which they in some degree modified their existing interests (z). wife. Whether It would appear that if a woman has married after settlementby 1882, or if she has married before that date and her married property, whether real or personal, has accrued to her 7°luntar WW after that date ( a )> thele cannot be a bargain between vo un ary. ^ ^^ ^ ^gband as to the property so as to sup- port a post-nuptial settlement of real estate by her against a subsequent purchaser (a); or to make a set- tlement of real or personal property by her a settlement for value. Her husband has, under that Act, no right over or interest in her property with which he can bar- gain, unless it be the bare chance of acquiring her personal property on her death intestate (b). His right to curtesy will not, it is conceived, support such settle- ment against a subsequent purchaser (c). Must be bon& But a post-nuptial settlement will not be made good fide, and the by such considerations unless all the circumstances considera- appear fair and free from doubt (d), and not merely '""''' ""'' colourable (e); and such a settlement by a husband must be in consideration of a sum of money to which he would not have been entitled unless he had con- sented to the making such a jointure ; for if he make a jointure in consideration of money he was then en- titled to, it is voluntary (/). Scotch A settlement made on a re- celebration in England of marriage. [ * 368 ] a marriage * previously performed in Scot- (z) Teasdale v. Braithwaile, 4 Ch. D. 85, S. C. 5 Ch. T>. 630; In re Foster and Lister, 6 Ch. D. 67; Shurmur v. Sedgwick, 24 Ch. D. 597; ante, pp. 289 et seq. (a) 45 & 46 Vict. c. 75, ss. 2, 5. 16) Wolst. Con. 4th ed. 8; but see Eversley, Dom. Eel. 181-182. (e) Griffith, 5th. ed. 10, 59 ; Shurmur v. Sedgwick, 24 Ch. D. 597; ante, pp. 292, 295. (d) Ward v. Shallet, 2 Ves. 16. (?) -Russet v. Hammond, 1 Atk. 16; In re Pearson, 3 Ch. D.,807. (/) Per Lord King in Gardiner v. Painter, Sel. Ca. Ch. 65. (5460) AND ANTE-NUPTIAL AGREEMENTS. 375 land according to the Scotch law, is post-nuptial and not supported by the marriage consideration (g). It has frequently been said that for a man to make a The "moral settlement on his wife and children is the performance obligation" of a moral obligation (h). It might be thought, how- f^w^anf ever, that, unless it be made for providing against un- uhiMreii by foreseen and unavoidable accidents, a man would perform settlement, his duty to his family more effectively and conscien- tiously by so living as to avoid becoming embarrassed and getting his property encumbered by debts, than by placing the property out of the reach of creditors, so as in some measure to shield from his family the effects of his own extravagance (i). When a post-nuptial settlement is made on the valu- in favour of able consideration that the husband has given up an whom is a estate he had in his wife's property, a question may post-nuptial arise, in favour of whom can this settlement be treated ma( j e f or as for value ? value treated as such ? Of course it will treated as for value in favour of the husband or wife. As it is not supported by the consideration of mar- riage, it will be considered as voluntary so far as relates either to then existing or to the future children of the husband and wife (k) Although a post-nuptial settlement is of itself vol- Post-nuptial untary, an agreement reduced to writing before mar- settlements riage is a contract on valuable consideration, and as founded on ? , ,. ■. . ., /,-, agreements such can be enforced in equity (I). £ writing before Post-nuptial settlements, therefore, made in pursu- marriage ance of and in accordance with such agreements are as ' w ^ en for valid as if made before the marriage took effect (m), (g) Ex parte Hall, 1 V. & B. 112. And see Dobbyn v. Adams, 7 Ir. Ch. 193; Adams v. Adams, 8 Ir. Ch. 41. (h) Sug. Pow. 8th ed. 649; see Ellis v. Nimmo, LI. & G. t. Sugd. 333 ; Holloway v. Headington, 8 Sim. 324 ; Moore v. Crofton 3 J. & Lat. 438. (i) See Taylor v. Jones, 2 Atk. 600. (k) Green v. Paterson, 32 Ch. D. 95. (I) Goring v. Nash, 3 Atk. 186; Bold v. Hutchinson, 5 De G. M. & G. 558. (»») Ralph Bovey's Case, 1 Vent. 193 ; Randall v. Morgan, 12 Ves. 74 Sug. H. L. 53; Battersbeev. Farrington, 1 Sw. 106, 1 Wils. Ch. 88; Dewey v. Bayntun, 6 East, 257; Rock v. Dade, MS- 1709, post, Appendix No. XIII. (5461) 37(3 POST-NUPTIAL SETTLEMENTS even although the settlement contained no recital, nor any notice of the ante-nuptial agreement (n) ; but [ * 369 ] * a settlement not in pursuance of the articles is voluntary (o). But where the agreement was by the husband to make a jointure settlement on his wife (without any mention of issue), and a settlement was made on the husband for life, remainder to wife for life, remainder to their first and other sons, it was held that the settlement, though not exactly in accordance with the articles, was not voluntary or fraudulent against creditors (p). So also in a case (q) in Ireland before Lord Manners, where a bond was given by a husband on his marriage, and conditioned to be void on his settling lands of £100 a year in value, and he subsequently settled lands of much greater value, it was held that the settlement was good against creditors, on the principle that the Court will not, if the consideration be valuable, closely scru- tinize its adequacy. Referring to this, Lord Hardwicke made use of the expression that "articles are in Chancery considered as minutes only, and the settlement may afterwards explain more at large the meaning of the parties" (r). Agreement The agreement before marriage must be such as a must be Court of equity could have enforced; so that instruc- binding. tions for a settlement taken down in writing from all the intended parties to the settlement by a lawyer, but not signed, will not be sufficient (s); but a letter from a solicitor of one party stating what he intends to do may be binding on that party (t). An ante-nuptial agreement by a man to make a set- (n) Ferrars v. Cherry, 2 Vern. 384. (o) Senhouse v. Earle, 1 Arnb. 28.3-8. See also Partyn v. Roberta, 1 Arab. 314; Legg v. Goldwire, Ca. t. Talb. (Forr.) 20; Jason v. Jervis, 1 Vern. 284-286; Doe v. Bowe, 4 Bing. N. C. 737; Gates v. Fabin, 19 W. R. 61. (p) Brunsden v. Slratton, Prec. Ch. 520; and see Maguire v. Nicholson, Beatty, C. C. 592. (q) Maguire v. Nicholson, Beatty, C. C. 592. (r) In Blandford v. Marlborough, 2 Atk. 545. (s) Bawdes v. Amhurst, Prec. Ch. 402; Brownsmith v. Gilborne, 2 Stra. 738; Ayliffe v. Tracy, 2 P. Wms. 65; Warden v. Jones, 2 De G. & J. 76. And see Suffolk v. Greenvill, Nels. 15-16, in which a verbal agreement (before the Statute of Frauds), not be- ing properly established, was held of no avail. (0 Walfordv. Gray, lljur. (N.S.) 437. (5462) AND ANTE-NUPTIAL AGREEMENTS. 377 tlement on his wife was enforced, although the letters which contained the agreement were lost, such loss having been proved unforeseen and unavoidable (it). *In Trowellv. Shenton(v) an infant, engaged [*370] Trowellv, to be married, by letter promised to give seven speci- s ^ enion - fied houses to his intended wife. He married her after he came of age. Twelve years after, he settled these houses and two others, by a deed not referring to the letter, upon trust for her for life for her separate use, with remainder to him for life, and ultimate remainder as she should appoint, and in default to her in fee. He afterwards contracted to sell three of the houses. It was held that the settlement was voluntary, be- cause there was no ratification of it, either by express or implied reference to the agreement by the infant after coming of age, as required by Lord Tenderden's Act (w). There can be no doubt that a post-nuptial settlement Post-nuptial proved to have been made in pursuance of and in ac- settlements cordance with a parol agreement before marriage, would founded on not have been voluntary under either of these statutes ^j^^^i of Elizabeth before the Statute of. Frauds (x). meats before Statute of Griffin v. Stanhope (y) is the first reported case. Frauds. There Sir R. Griffin, before his marriage with Lady Stowell, promised " to assure to her £1000 per annum for ber jointure, his estate being then worth £12,000 per annum; wherefore she, reposing confidence in his promise, married with him before any assurance or cove- nant in writing whatsoever." After the marriag the husband conveyed lands to trustees, on trusts for the benefit of his wife for 100 years, with a condition that the term should cease and be void on a juncture of £1000 per annum being settled on her, and "the Court held," as to the point we are considering, "that this lease being made in pursuance of the first promise, al- though there was not any mention of any lease to be made, yet it was grounded on good consideration and not fraudulent." (u) Gilchrist v. Herbert, 20 W. E 348; but see Vincent v. Vincent, Times Rep. (1886), 814. (») 8 Ch. D. 318. (w) 9 Geo. 4, c. 14, s. 5. (x) 29 Car. 2, c. 3. (y) Cro. Jac. 454. (5463) 378 POST-NUPTIAL SETTLEMENTS Bovy's Case. And the second resolution in Sir Ralph Bovy's Case (z) was, " That the settlement, being made in pursuance of articles made precedent to the marriage, had not the least colour of fraud whereby a purchaser [ * 371 ] might avoid it; and if there had been but *a' verbal agreement for such a settlement it would have served the turn." So where (a) it was proved that an infant had, on his marriage, made a promise to settle his estate when he came to age upon himself and his issue, this was held a sufficient consideration to avoid fraud, though, hjeing an infant, he was not by law com- pellable to perform such a promise. Statute of Shortly after this the Statute of Frauds (b) was Frauds, sect, passed, which, by the 4th section, enacts that "no ac- 4 - tion shall be brought .... whereby to charge any person upon any agreement made upon consideration of marriage, .... unless the agreement upon which such action shalj be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. Posvnuptial settlements founded on ante-nuptial parol agree- ments since Statute of Frauds. The law with respect to post-nuptial settlements founded on parol agreements before marriage, by this statute was materially altered; and the chief question to be considered in cases arising subsequently is, whether an ante-nuptial parol promise can, by any transactions after marriage, be taken out of the Statute of Frauds. If the post-nuptial settlement is within the provisions of that statute it becomes (in the absence of considera- tion other than the past consideration of the marriage already solemnized) a mere voluntary settlement, and as such voidable under the statutes of Elizabeth (c). It is clear from the foregoing cases that, apart from the Statute of Frauds, such a settlement will be good against creditors or purchasers if the parol agreement is clearly proved. It is a well -settled doctrine in equity that a part per- (z) 1 Vent. 194. (a) Lavender v. Blaekstone, 3 Keb. 526. And see Wldte v. Drake, 3 Keb. 6; but see now Trowell v. Shenton, 8 Ch. D. 318, supra, p. 370. (b) 29 Car. 2, c. 3. (c) Loeffes v. Lewen, Prec. Ch. 370. See ante, p. 365; post, pt. v. ch. iv. (5464) AND ANTE-NUPTIAL AGREEMENTS. 379 formance of a verbal contract, by one of the parties to Does doctrine it may exclude the operation of the Statute of Frauds of part per- and enable the Court to enforce specific performance f ornianee of a verbal agreement (d). *A settlement executed when its execution ['* 372] could have been compelled is no longer voluntary or fraudulent under the statutes of Elizabeth (e). Are there, then, any circumstances under which this apply to parol doctrine will apply to these parol agreements before ante-nuptial marriage? agreement? Marriage alone, it has been frequently determined, Marriage is not a part performance of such an agreement, made alone is not a in consideration of it (/). Thus, it was argued in P art P ei 'f° rn i- Mordacute v. Maxwell (g), and allowed by Lord Chan- cellor Parker, that "it was very wrong to call marriage the execution of the promise, when, until the marriage, it was not within the statute; and the statute makes the promise in consideration of marriage void; there- fore, to say that the marriage was an execution which should render the promise good was quite frustrating the statute." In Dundas v. D-utens (h) Lord Thurlow said: "If there is parol agreement for a settlement on marriage, after marriage a suit upon the ground of part performance would not do, because the statute is expressed in that manner. " And in Lassence v. Tierney (i) Lord Cottenham said that marriage is no part performance of the contract ; if it were, there would be an end of the statute, and every parol contract followed by marriage would be binding. So in Caton v. Caton (k) it was said by Lord Cran- worth, L.C. : "That marriage in itself is no part per- formance within the rule of equity is certain. Marriage (d) Potter v. Potter, 1 Ves. 441 ; Fry, Sp. Pf. 2nd ed. 252-3 et seq. (e) Ante, p. 249. (/) Taylor v. Beech, 1 Ves. 297; Spicer v. Spieer, 24 Beav. 365; Bawdes v. Amhurst, Prec. Ch. 402. See also Hammersley v. De Biel. 12- CI. & F. 45; Sureome v. Pinniger, 3 De G. M. & G. 571 ; Warden v. Jones, 23 Beav. 496, S. C. 2 De G. & J. 76, 84; Caton v. Caton, L. E. 1 Ch. 137, S. C. L. R. 2H. L. 127; Trowellv. Shen- ton, 8 Ch. D. 324, 326. (fl) 1 P. Wms. 618. (h) 1 Ves. 199. (i) 1 Mac. & G. 551, 571-2. (k) L. R. 1 Ch. 137, S. C. L. R. 2H. L. 127. (5465) 380 SETTLEMENTS AFTER MARRIAGE is necessary in order to bring a ease within the statute, and to hold that it also takes the case out of the stat- ute would be a palpable absurdity." But other acts But though marriage alone is not apart performance may be. f a verbal promise, any acts or transactions which, apart from the question of the marriage, would suffice [ * 373] to uphold the contract on the ground *of part performance, will not be the less effective because mar- riage has intervened (I). Thus in Warden v. Jones (to) Lord Cranworth, L. C, said : "It was hardly argued that marriage was a part performance. That is clearly not so. Where, in- deed, one of the contracting parties agrees, as the con- sideration for the marriage, to do something more than marry, as to settle an estate, and in consideration of that promise the other party, either acting for her or him, contracts to make a settlement, then the settlement made by the one contracting party is a good act of part performance." And in support of this his Lordship re- ferred to Hammersley v. Be Biel (n), where an agree- ment having been entered into by a lady'B friends on her marriage, and reduced to writing but not signed, the execution by the husband of a settlement after mar- riage, in accordance with the agreement, was held by Lord Cottenham, L.C. (o), to be an act of part per- formance ; and on appeal the application of the Statute of Frauds was held excluded on the same grounds (n). Surcome v. In Surcome v. Pinniger (p) a father on the marriage Pinniger. of his daughter made a verbal promise to the intended husband to give them a certain leasehold house, &c, on their marriage, on the faith of which promise the husband married, and after the marriage his father-in- law gave him possession of the property, directed the tenants to pay him the rent, and handed over the title deeds ; the husband expended a considerable sum of money in repairing the property, and the father died. The property having been sold under the Lands Clauses Act (q), the question was, whether the pur- (l) Fry, Sp. Pf. 2nd ed. 267, 268. m) 2 De 6. & J. 76. n) 12 CI. & F. 45. o) 12Cl.&F.61,n.; andsee Goldicuttv. Tovmsend, 28 Beav. 445. p) 3 De G. M. & G. 571 ; Cooper v. Wormald, 27 Beav. 266. 2) 8 & 9 Vict. e. 18. (5466) AND PAROL AGREEMENTS BEFORE. 381 chase money belonged to the husband or to his father-in- law's estate ; and the promise being proved it was held that there was a part performance of it independently of the marriage which would take the case out of the statute. In the case of Ungley v. Ungley (r) a father, in con- Ungley v. sideration of the marriage of his daughter, verbally Ungley. promised his intended * son-in-law to give [ * 374 ] his daughter a particular leasehold house on her mar- riage as a wedding present. Immediately after the marriage the father put his daughter and son-in-law into possession, and they remained in possession till his death. The father after the marriage up to his death duly paid all instalments in respect of a mortgage on the house in favour of a building society as they fell due ; and the son-in-law paid the ground-rent, rates, and taxes. On a claim to the house by the father's ad- ministrator, it was held by the Court of Appeal that the possession by the son-in-law and daughter in pursuance of the parol contract took the case out of the Statute of Frauds. But part performance by the party to be charged will Part perform- not do (s). ance not hj party to be charged. " The ground on which the Court holds that part per- formance takes a contract out of the purview of the Statute of Frauds is, that when one of two contracting parties has been induced or allowed by the other to alter his position on the faith of the contract, as for in- stance by taking possession of land and expending money in building or other like acts, then it would be a fraud in the other party to set up the legal invalidity of the contract on the faith of which he induced or al- lowed the person contracting with him to act and ex- pend his money" (t). So it was held that a will made in pursuance of a parol agreement before marriage to do so, is no part performance (u). It appears then, that, so far as the doctrine of part Ordinary- performance is concerned, parol agreements in consid- rules apply r when parties are married. (r) 4 Ch. D. 73, S. C. 5 Ch. D. 887 ; and see Alderson v. Maddi- son, 7 Q. B. D. 174, 180. ts Calon v. Colon, L. R. 1 Ch. at p. 148. (/) Per Lord Cranworth, in Caton v. Calon, L. R. 1 Ch. 137, S. C. L. R. 2 H. L 127. («) S. C. ; and see Humphreys v. Green, 10 Q. B. D. 148. ' 30 STAT, of eliz. (5467) 382 PAROL ANTE-NUPTIAL AGREEMENTS Can post- nuptial settlement set up parol ante-nuptial agreement? Montacuie v. Maxwell. eration of marriage become, after marriage, subject to the same rules (v) as other parol agreements on valua- ble consideration unconnected -with marriage. In order to set up an agreement by taking advantage of acts of part performance, the agreement must be of such a nature that the Court would have had jurisdiction in [ * 375 ] respect of it if it had been* in writing (w). For instance, it is clear that there can no more be a part performance of a parol agreement which is incom- plete, where marriage is the consideration, than in other cases (x). The question, whether a post-nuptial settlement, or a signed note or memorandum in writing, will support a parol ante-nuptial agreement, so as take it out of the Statute of Frauds (and therefore, as a settlement for value, make that post-nuptial settlement good against creditors or subsequent purchasers), is one of some difficulty. On this point there has been a considerable conflict of judicial opinion, from the time of the passing of the statute down to a very recent period. In tbe very early cases (y) on the subject, which, with the exception of Moore v. Hart (z), related to personal estate, it has been held that a signed written admission after marriage took a parol agreement be- fore marriage out of the statute, and therefore sup- ported the post nuptial settlement against creditors or subsequent purchasers. In the case of Montacute v. Maxwell (a), a husband before marriage promised his intended wife that she should enjoy all her own estate (a considerable per- sonal estate) to her separate use, but delayed executing any settlement till after the marriage, when, on her (f) Fry, Sp. Pf. 2nd ed. 252 et seq. (w) Fry. Sp. Pf. 2nd ed. 257, 258 ; and see Alderson v. Maddi- son, 7 Q. B. D. 174 ; Humphreys v. Green, 10 Q. B. D. 148. (x) Thynne v. Glengall 2 H. L. C. 131, 156-8 ; Suffolk v. Green- vill, Nels. 15-16 ; Spnrgeon v. Collier, 1 Eden, 55 ; post, p. 376. (y) Gale v. Undo, 4 Vera. 475; Bird v. Blouse, 2 Vent. 361; Cokes v. Mascal, 2 Vern. 34; Wankford v. Follierley, 2 Vera. 322, Hodgsonv. Hulchenson, 5Vin. Abr. 522, pi. 84; Anon. Prec. Ch. 101. (*) 1 Vern. 110. (a) 1 P. Wins. 618. In L'Estrange v. Robinson-, 1 Hog. Ir. Eep.' 202, this case was said to be one of gross fraud. (5468) AND POST-NUPTIAL SETTLEMENTS. 383 pressing him by letter to fulfil his promise, he wrote in answer, declaring in general terras that it was rea- sonable that she should have the disposal of her own estate and that it should be at her command. It was decided in the wife's favour, and partly, it seems, on the ground of fraud. Lord Chancellor Parker, in the course of his judgment, said: "When it stood purely on the parol promise before marriage, there was no colour to relieve the plaintiff. But such parol promise on * marriage is sufficient consideration to [ * 376] support a settlement made agreeable to it after marri- age. This has been frequently determined. So it is also sufficient consideration to establish a promise made in writing after marriage. Now here is great evidence of such a promise made in writing after mar- riage" (b). Spurgeon v. Collier (c) is the first case upon real Spurgeon v. estate since the Statute of Frauds (d). In that case, Collier. shortly after the marriage a settlement of real estate was made by an uncle in favour of his niece and her husband and the issue, in consideration of the marri- age had. Lord Northington said: " The deed, on the face of it, is merely voluntary, for it is after marriage and on no new consideration paid. But it is said tiiat it was made in consideration of an agreement with the husband before marriage by parol, and that, though a parol agreement will not support a suit since, the Statute of Frauds, it will operate so as to make a sub- sequent settlement in consequence thereof to proceed on a valuable consideration In the first place, p aro i aKree . here is no agreement or promise proved. It is ad mentnot mitted that since the statute, though such promise was proved, made, Dr. A. could have no remedy. Then the settle- ment was voluntary, for it could not be compelled But if such a parol agreement were to be allowed to give effect to a subsequent settlement it would be the most dangerous breach of the statute and a violent blow to credit. For any man on the marriage of a re- lation might make such promise, of which an execu- tion never could be compelled against the promisor, and the moment his circumstances failed he would ex- ecute a settlement pursuant to his promise and defraud all his creditors." (6) See Taylor v. Beech, 1 Ves. 297. (c) 1 Eden, 155, (a.d. 1758). (d) But see Moore v. Hart, 1 Vera. 201. (5469) 384 PAROL ANTE-NUPTIAL AGREEMENTS Such a settlement as that here suggested would clearly (apart from the question whether it would be for -valuable consideration or not) be so evident a con- trivance for fraudulent purposes that the Court would hold it void against creditors under the statute of 13 Eliz. c. 5; for voluntariness is only one of the badges of fraud, and a disposition of property, even for valu- able consideration, can be set aside if it is fraudulent in effect (e). [* 377] This case, however, is not an actual decision upon the point, for the parol agreement was not such as would, if it had been in writing, have been executed, and the post-nuptial settlement was not in pursuance of an agreement before marriage (/). Dundas v. In Dundas v. Dutens (g), which was the leading Dutens. case a nd an express decision on the point, the case was thus : Harriet Dutens, who was entitled under her fa- ther's will to certain moneys and other personal property, as her share in the residue of his property, some of it being still outstanding, married J. C. Just a year after the marriage an indenture was executed between the husband and wife, the executors of the father's will, and others, as trustees, by which, after reciting the particulars of Harriet Dutens' fortune and that part of the residue was still uncollected, and reciting the mar- riage, and that previously thereto it had been agreed between the parties that Harriet Dutens' fortune should be settled to the several uses and purposes therein mentioned, the whole of the said property was settled upon trust to pay £100 a year to the wife's separate use for her life, the remainder of the income during her life to the husband for life, then to the wife for life, and to pay the principal on the death of the sur- vivor of them to their children. Lord Thurlow, L. C, said (h) "he could not con- ceive that a settlement made after marriage in pursu- ance of an agreement before marriage, though only parol, could ever be reckoned a fraudulent settlement; (e) Ante, pp. 85, 86. ~ (/) 1 Eden, 55, 61, 63; but see Throop, Verb. Ag. (Amer.), 718. (g) 2 Cox, 235, 1 Ves. Jun. 199. See Shaw v. Jakcman, 4 East, 207, 1 Eden, 2nd ed. 62, n. This case is differently reported in 1 Ves. Jun. 199 ; the version of Cox, as counsel for the plaintiff, is probably the more accurate. In V Estrange v. Robinson, 1 Hog. 202, it is called a case of gross fraud. (ft) 2 Cox, 240. . (5470) AND POST-NUPTIAL SETTLEMENTS. 385 that the cases, though they had gone a great way in treating settlements after marriage as fraudulent, had never gone to such a length as that; and he was there- fore clearly of opinion that the settlement was in itself valid." These, according to Cox, were the grounds of the de- cision; but according to the other report(t) the decree "was chiefly founded on the fact that the property was stock and choses in *action which could not be taken [* 378 ] in execution by creditors, and therefore a settlement of it could not effect their rights. But there is a circum- stance which, in Lord Thurlow's mind, may have given great force to the recital — viz., that there was a combi- nation between the creditors and the husband against the child of the marriage, so that the recital in the settlement, to which the husband was a party, in a fact which it had now become his interest to dispute was a strong proof of the truth of that recital, and might be looked on as binding him by estoppel (fc). The value of this case as an authority upon the point is greatly lessened by the facts that the decision could be supported on other grounds; and that the two re- ports of it differ so greatly. Sir W. Grant, in his judgment in Randall v. Morgan itanda.il v. (I) — a settlement of personalty — expressed an opinion Morgan. contrary to that above stated as Lord Thurlow's. In the course of his judgment he said : "There are dicta that a settlement after marriage reciting a parol agree- ment before marriage is not fraudulent against cred- itors, provided the parol agreement had actual exist- ence. But I do not know that the point has been directly decided. It was discussed in Dundas v. Dutens (m), but Lord Tburlow, though inclined that it should stand good, said it was a mere matter of curiosity if the first point was against the plaintiff ; as it was." The other report, however (n), shews that the decision (i) 1 Ves. Jun. 198. (k) Kecitals in a deed are generally conclusive evidence against parties to the deed. Marchioness of Annandale v. Harris, 2 P. Wms. 432; Battersbee v. Farringlon, 1 Sw. 113, post, p. 383; Lain- son v. Tremere, 1 Ad. & E. 792; Carpenter v. Buller, 8 M. & W. 209; see post, pp. 383, 384. (I) 12 Ves. Jun. 67. Sir W. Grant had only the report of Vesey before him ; that of Cox was not then published. (m) 2 Cox, 240, 1 Ves. Jun. 198. (b) 2 Cox", 235. (5471) 386 PAROL ANTE-NUPTIAL AGREEMENTS rested chiefly on the fact that the settlement, being made in pursuance of an agreement before marriage, though only parol, could not be considered as fraudu- lent, independently of the other point against the plain- tiff ; and this cannot be said to be overruled by the above dictum of Sir W. Grant (o). DeBeil-v. It has been held by Lord Langdale, M.R., in De Thompson. [ * 379 ] Beil v. * Thompson (p), and by Lord Cotten- ham, L.C., in the same case on appeal (q), that a writ- ten memorandum made after the marriage of a parol agreement entered into before the marriage would be sufficient within the statue (r). Lord Cottenham, L.C., however, in the Appeal Court, pointed out that the case did not rest solely on that ground, for that there was in the dealing between the parties an important act by the intended hubband, in execution of the proposed arrangement, which amounted to part performance (s). In the House of Lords the defence on the ground of the Statute of Frauds was abandoned, and therefore, it is thought, the case on that point, at the best, can only carry with it the au- thority of the Court of Appeal ; and in that Court the case was, to some extent, regarded as one of part per- formance (t), and from the report, Lord Cottenham, L.C, seems to have merely intimated his opinion in fa- vour of supporting a parol agreement by a subsequent promise in writing. Barkworth v. This view was also followed in Barkworth v. Young Young. ( M ) by sir E T Kindersley, V.C., who, after carefully reviewing the authorities, said that all these opinions must, he thought, outweigh Sir W. Grant's doubts. In that case the plaintiff, G. B., a husband, on the death of his father-in-law, attempted to enforce against the father-in-law's estate a parol promise made by him on the marriage of his daughter with the plaintiff; and, in order to take that contract out of the statute, alleged a (0) See Ramsden v. Hylton, 2 Ves. 304. (p) 3 Beav. 469. (q) Sub nom. Hammersley v. De Biel, 12 CI. & F. 64, n. (r) Per Kindersley, V.C., Barkworth v. Young, 4 Drew. 12. (s) 12 CI. & F. 63, 64 (n.), 79, 80, 87; but see Fry, Sp. Pf. 2nd ed. 244, 251. (1) Supra, p. 373. (u) 4 Drew. 1; and see the extra-judicial opinion of Turner, L.J., in Surcome v. Pinniger, 3 De G. M. & G. 571; but see the comments of Lord Eomilly, M.R., on these two cases in Goldicutt v. Townshend, 28 Beav. 451, 452. (5472) AND POST-NUPTIAL SETTLEMENTS. 38T statement made and sworn to by the father-in-law in an affidavit in a previous suit, in which he deposed that he had said before the marriage, " There will be no money for you now, but at my death she (meaning my late daughter, Mrs. G. B. ) shall share with the rest of my children." The Vice Chancellor considered this suffi- cient to uphold the agreement as ante nuptial, and to take it out of the Statute of Frauds (v). *On the other hand,thecase of Warden v. Jones [*380] jparrien v _ (tr), decided after BarkworthY. Young (x),\a. which Lord Jones. Bomilly, M.E., held that a post- nuptial settlement made in accordance with an ante-nuptial parol agreement, by the husband was voluntary, and, as such, void against his creditors, was affirmed, on appeal, by Lord Cran- worth (y). In this case, and in the subsequent one of Goldicutt v. Townshend (z), the post-nuptial settlement did not recite the parol ante-nuptial agreement, and therefore, it is conceived, the argument for treating it as a memorandum in writing within tbe statute derives i no support from these cases. In the Court of Appeal, however, Lord Cran worth, L.C., though not called upon to decide the point, recorded an opinion against the va- lidity of a recital in a post-nuptial settlement of a parol agreement before marriage. He said (a): "Nor are we embarrassed here by the question which has some- times arisen — namely, that the post-nuptial settlement is recited to be made in pursuance of an ante-nuptial agreement. Lord Thurlow decided, in Dundas v. Du- tens (£>), that such a settlement is good, and on that de- cision I will only remark that, if it be -a correct view of the law, the whole policy of the statute is defeated. It cannot be enough merely to say in writing that there was a previous parol agreement. It must be proved that there was such an agreement, and to let in such proof is precisely what the statute meant to forbid. Sir William Grant clearly thought that a written recog- nition after marriage of a verbal promise made before marriage would be invalid. One question in Randall v. Morgan (c) was, whether a letter, written by the fa- ther of the wife after the marriage, amounted to a (v) 4 Drew. 17, 18. (w) 2 De G. & J. 76. (x) 4 Drew. I. (y) 23 Beav. 487. (z) 28 Beav. 446. (a) 2 De G. & J. 85. (b) 2 Cox, 235. (c) 12 Ves. 73. (5473) 388 PAROL ANTE-NUPTIAL AGREEMENTS promise to give a bond, or to a recognition of a pre- vious verbal promise to do so. Sir W. Grant, after ob- serving that if it was a promise made after marriage to give a bond, then it was a nudum pactum, goes on to say: 'Supposing, however, that this letter refers to some parol promise before the marriage. I doubt ex- tremely whether that would be sufficient to entitle the Court to construe this into an acknowledgment of a debt, for the promise, being in itself a nullity, produc- ing no obligation, a written recognition after the mar- [* 381] riage woull give it no validity.' This *most reasonable construction of the statute is consistent with the decision of Lord Cottenham in Lassence v. Tierney (d), and, though the precise question does not arise in the case now before me, I have thought it right to ad- vert to those authorities, in order that it may hot be thought that I decide the present case merely on the ground that it is distinguishable from Dundas v. Dutens (e). I incline to think that, even if this settlement had contained a statement that it was made in pursuance of a previous ante-nuptial parol agreement, I should still have considered it, as I now consider it, void against creditors." In the case of Crossly v. Elworthy (/), Malins, V.C., expressed the opinion that it was perfectly settled that a verbal promise before marriage to make a settlement added nothing to the validity of a settlement made after the marriage. Troweli v. The most recent case on this point, and which, it is Shenton. conceived, decides that a parol contract before marriage cannot so support a settlement made after marriage, is that of Troweli v. Shenton (g). In that case an infant, before marriage, by letter promised to give his intended wife certain specified freehold houses. Twelve years after their marriage he made a settlement upon his wife of these houses and two others, not reciting the ante-nuptial agreement. The case was decided by the Court of Appeal upon the ground that the contract made in infancy had never been ratified in writing by the infant after coming of (d) 1 Mac. & G. 557. («) 2 Cox, 235, 1 Ves. Jun. 199. (/) L. R. 12 Eq. 164. (g) 8 Ch. D. 318. (5474) AND POST-NUPTIAL SETTLEMENTS. 389 age, as required by Lord Tenderden's Act, and that therefore the settlement was voluntary, and void against a subsequent purchaser for value. But it is conceived that Sir G. Jessel, M.R., and Cotton, L.J., in the course of their judgments dealt with this question. Sir G. Jessel, M.R., said "Some observations were made during the argument as to the effect of a subsequent acknowledgement in writing of a contract, and Barkworth v. Young (h) was referred to in support of the contention that the settlement was for value, * though there was no ratification [ * 382 ] till after the marriage. The answer to this is given by Warden v. Jones (i) which is subsequent in date Bark- worth v. Young (h), and therefore, so far as the two are inconsistent, overrules it. Lord Cranworth, there referring to a post-nuptial settlement reciting that it was made in pursuance of an ante nuptial agreement, says : ' Lord Thurlow decided in Dundas v. Dutens (k) that such a settlement is good, and on that decision I will only remark that, if it be a correct view of the law, the whole policy of the statute is defeated. It cannot be enough merely to say in writing that there was a pre- vious parol agreement. It must be proved that there was such an agreement, and to let in such proof is pre- cisely what the statute meant to forbid.' In that short passage the Lord Chancellor disposed of all the other authorities." Cotton, L. J., in his judgment, pointed out that the principle upon(which Trowell v. Shenton (I) and Warden v. Jones (i) were decided is really the same. In the one case a written contract made in infancy cannot sup- port a settlement, because Lord Tenterden'B Act, which requires written satisfaction of that contract signed by the party to be charged, has not been complied with. In the other case, a parol contract made before mar- riage cannot be connected with a written one made af- ter marriage so as to support it, because the Statute of Frauds, which requires some written evidence of the parol contract signed by the party to be charged, has been disregarded. The result, then, of the English authorities on this (ft) 4 Drew. 1. (i) 2 De G. & J. 76. (k) 2 Cox, 235, 1 Ves. Jun. 199. (I) 8 Ch. D. 326 ; but see Ex parte Whitehead, 14 Q. B. D. 419. (5475) 390 PAKOL ANTE-NUPTIAL AGREEMENTS Parol ante- nuptial agreement cannot make post-nuptial settlement for value. Same if recital of parol agree- ment in post- nuptial settlement. point seems to be that a parol agreement before mar- riage cannot set up a settlement made after marriage so as to make it a deed for valuable consideration, and therefore good against creditors or subsequent purchas- ers (n). A recital in the post nuptial settlement of an ante- nuptial parol agreement will not give it any additional validity ; so that, for this question, such a deed stands on the same footing as a post-nuptial settlement with- out such recital. American view the same. Parol con- tract upheld when against the interest of person adini- ting it. [ *383 ] *On principle this seems to be the sounder view. The opposite view would, in effect, override the Statute of Frauds, for it would enable a dishonest person, by a mere recital in a post-nuptial settlement, to exclude his creditors. Theinere fact that it would be in the power of a person so to set up a parol ante-nuptial agreement to support a post-nuptial settlement, of which his cred- itors could have no knowledge, seems in itself a good argument against it (o). The same view of this question has, after some di- vergence of opinion, been adopted in the United States, and is now there regarded 'as settled law (p). It should also be observed that the only cases in which a post-nuptial recognition has been allowed to establish the agreement are where to prove the parol contract was against the interest (in the then suit) of the person by whom the written recognition had been made (q). As against such persons the subsequent writing might be valid by estoppel (r) : a view which is (») Sug. Pow. 8th ed. 650 ; Edwards v. Hamilton, H. & W. 290 ; Fry, Sp. Pf. 2nd ed. 251 ; Dav. Prec. Conv. 3rd ed. vol. 3, 368; but see Dart, V. & P. 5th ed. 1028; Eversley, Dom. Eel. 161. (o) Bat/ersbee v. Farrington, 1 Sw. 113 ; Spurgeon v. Collier 1 Ed. 61 ; Pollock, Cont. 4th ed. 615. (p) Meade v. Livingston, 3 Johns. C'h. 481 ; Kent, Com. 12th ed. 172, 173 ; Story, Eq. Jur. 12th ed. s. 374 ; Tliroop, Verb. Ag. (Amer.), 716, 721, 722 ; Bump. Fr. Conv. (Amer.), 2nd ed. 297, 298. (q) Dundas v. Dutens, 2 Cox, 235, 1 Ves. Jun. 196 ; Battersbee v. Farrington, 1 Sw. 106 ; Moniacute v. Maxwell, 1 P. Wins. 618, 1 Str. 236 ; Barkworth v. Young, 4 Drew. 1. (r) Ford v. Grey, 1 Salk. 285 ; Marchioness of Annandale v. Rams, 2 P. Wins. 432, affirmed by House of Lords, 1 Bro. P. C. 250 ; Shelly v. Wright, Willes, 11, 12 ; Lainson v. Tremere, 1 A. & E. 792 ; Bowman v. Taylor, 2 A. & E. 278 ; Bowman v. Boslron, 2 A. & E. 295 ; Carpenter v. Buller, 8 M. & W. 209 ; Fort v. Clark, 1 Euss. 601. (5476) AND POST-NUPTIAL SETTLEMENTS. 391 supported by the words of Sir Thomas Plumer, M.R., in Battersbee v. Farrington (s) : "On the first question (which I am not now to decide) the distinction, I ap- prehend, is, that against all persons claiming under the settlement the recital is conclusive." So in Watts v. Watts (t), where a post- nuptial set- tlement was made by a husband in favour of his wife and children, which recited that it was made in pursu- ance of an ante-nuptial agreement, and the husband afterwards tried to sell part of the settled property, it was held that the burden of proof lay on him to shew the settlement voluntary, and that it would be assumed, till the contrary was proved, that the recited agreement was a written one. *It seems that if a man, upon his marriage [*384] Parol with a lady, enters into a mere parol agreement with agreement, her that a sum of money shall be transferred to trustees proDertv° na upon trusts for himself, his intended wife, and the chil- actually dren of the marriage, and the money is, before the mar- transferred riage, actually transferred to the trustees, who hold it W ™ solely upon the trusts agreed upon, the fact that the in- marrla S e - strument declaring the trusts is executed by them sub- sequently to the marriage does not make it a voluntary instrument, or enable creditors to set it aside on the ground that it was not made bona fide in consideration of the marriage (m). A post-nuptial settlement may also be enforced in Parol repre- pursuance only of a parol representation made before sentation marriage, upon the ground that the person whc has inducing made the promise is, under the circumstances, estopped marria S e - from denying it (v). (s) 1 Sw. 113 ; and see Stone v. Stone, L. R. 5 Ch. 74. (0 24 W. R. 489, affirmed on appeal. (it) Cooper v. WormaJd, 27 Beav. 266, 270 ; Simmons v. Sim- mons, 6 Hare, 352 ; and see Brown, v. Jones, 1 Atk. 189 ; Ex ■parte Whitehead, 14 Q. B. D. 419. As to lands, see Statute of Frauds, s. 7. (v) Moore v. Hart, 1 Vern. 201 ; Hodgson v. Hutchenson, 5 Vin. Abr. 522, ante, p. 375 ; Bird v. Blosse, 2 Vent. 361 ; Cokes v. Muscat, 2 Vern. 200 ; Wankford v. Fothgrly, 2 Vern. 322 ; Half- penny v. Ballet, 2 Vern. 373 ; Luders v. Anstey, 4 Ves. 501 ; Merry v. Ryves, 1 Eden, 1 ; De Beil v. Thompson, 3 Beav. 469, S. C. on appeal as Hammersley v. De Beil. 12 CI. & F. 45 ; Madox v. Now- 1'M, Beatty, C. C. 632 ; Loxley v. Heath, 27 Beav. 523 ; Prole v. Sondy, 2 Giff. 1 ; Cooper v. Wormald, 27 Beav. 266 ; Williams v. Williams, 37 L. J. Ch. 854 ; Bold v. Hutchinson, 5 De G. M. & G. 558 ; Maunsell v. Hedges Wliite, 4 H. L. C. 1039 ; Jorden v. Money, (5477) 392 UNWRITTEN ANTE-NUPTIAL The fourth section of the Statute of Frauds, it must be observed, applies only to agreements, and does not include representations (w). The question, then, whether a settlement can be en- forced after marriage if the marriage has been induced by a parol representation, is one which is not affected by that section of the statute ; so that this case appears as an exception to the general principle that a parol agreement before marriage cannot set up a post- nuptial settlement so as to make it a settlement for value (x). The principle upon which a parol representation will be so enforced has been thus stated by Lord Selborne, L.C., in Citizens' Bank of Louisiana v. First National [ *385 ] Bank of New Orleans (y) : — *" I apprehend that nothing can be more certain than this, that the doctrine of equitable estoppel by representation is a wholly different thing from contract, or promise, or equitable assignment, or anything of that sort. The foundation of that doctrine, which is a very important one, and certainly not one likely to be departed from, is this : that if a man dealing with another for value makes statements to him as to existing facts which, be- ing stated, would affect the contract, and without reli- ance upon which, or without the statement of which, the party would not enter into the contract, and which, being otherwise than as they were stated, would leave the situation, after the contract, different from what it would have been if the representations had not been made ; then the person making those representations shall, so far as the powers of a Court of equity extend, be treated as if the representations were true, and shall be compelled to make them good. But those must be representations concerning existing facts." But it is not every parol representation which has induced marriage which will entitle the promisee to en- force it against the promisor. There is a fundamental distinction between a parol 5 H. L. C. 185. See the judgment of Stephen, J., in AJderson v. Maddison, 5 Ex. D. 293, S. C. 7 Q. B. D. 174, S. C. 8 App. Caa. 467 ; Pollock, Cont. 4th ed. 613-614. (w) Throop, Verb. Ag. (Amer.), 675, 731. (x) Dav. Prec. Conv. 3rd ed. vol. 3, 640-646 ; Lush, H. & W. 437-438 ; Kerr, Fraud & Mis. 2nd ed. 50-51. (y) h. E. 6 H. L. 352, 360. (5478) AGREEMENTS. 393 representation as to an existing fact, and as to a pres- Only enforced ent revocable intention to do a future act (z). if of an existing fact. So Mellish, L.J., said: "There is a clear difference between a misrepresentation in point of fact, a repre ' sentation that something exists at that moment ■which does not exist, and a representation that something will be done in the future. Of course, a representation that something will be done in the future cannot either be true or false at the moment it is made, and, although you may call it a representation, if it is anything, it is a contract or promise" (z). It is conceived that the only parol representation (relying on which marriage has taken place) that will be enforced, is one of an existing fact; and that a parol representation of a present revocable intention, although morally binding, cannot be legally enforced (a). *A post-nuptial settlement, if made by a per- [*386] son who could have been compelled to make it in order to make a good parol representation of an existing fact made before and in consideration of marriage, will, it is conceived, be valid against the creditors of, or purchasers from, the settlor (6). The same principles apply to a representation made written rep- in writing to induce marriage and acted on by the per- resentation. son to whom it is made ; but only if of an existing fact. A post-nuptial settlement so made by the maker of the written representation will, it is conceived, be upheld against his creditors or a purchaser from him (c). Of course the person who seeks to enforce the repre- sentation must prove clearly that it was made, and that the marriage took place in reliance upon it (d). There seems to be no ground for making a distinc- tion between a representation made by one of the per- sons to be married, and a representation made by a third person to either of them (e). (z) Beattie v. Lord Ebury, L. R. 7 Ch. 804 ; Ex parte Burrell, 1 Ch. D. 552. (a) Dav. Prec. Conv. 3d ed vol. 3, 642-646 ; Alderson v. Mad- dison, 5 Ex. D. 293, 296, S. C. 7 Q. B. D. 174, S. C. 8. App. Cas. 467. (b) Ante, pp. 384, 385. (c). See GoldicvM v. Townsend, 28 Beav. 445-9 et seq. (d) Jameson v. Stein, 21 Beav. 5. (e) Crofton v. Ormsby 2 Sch. & Lef. 583 ; Warden v. Jones, 23 (5479} 394 UNWRITTEN ANTE-NUPTIAL AGREEMENTS. Promise to reduce agree- ment to writing pre- vented by fraud of one party. In any case in which the execution of an ante-nup- ■ tial settlement, or the reduction of it into writing, after a parol promise to make one has been given, is pre- vented by the fraud of one of the parties, that party will not be allowed to set up the Statute of Frauds (/). The Court will give relief to the person defrauded, just as if a binding written agreement had been duly executed (g), and will order specific performance of it; and such a settlement will be good against either the creditors of, or purchasers from, the settlor. So where instructions are given and preparations made for the drawing of a marriage settlement, and, [ *387] before it is completed, the *woman is drawn in, by the assurances and promises of the man to perform it, to marry him; in such a case the Court will re- lieve (h). But no relief will be given where one of the parties is induced by the other to waive the intended settle- ment in reliance upon a bequest or devise of the same property (i). Beav. 493, S. C. 2 De G. & J. 76 ; Bold v. Hutchinson, 5 De G. M. & G. 558 ; Prole v. Soady, 2 Giff. 1 ; Pollock, Cont. 4th ed. 614 ; and see Seton, 4th ed. 1223. ( f) Cokes v. Mascatd, 2 Vern. 200 ; Halfpenny v. Ballet, 2 Vern. 373, 1 Eq. Ca. Abr. 20 ; and see Taylor v. Beech, 1 Ves. 297 ; Agnew, St. Frauds, 123. (g) MiddlHon v. Middlelon, 1 J. & W. 99 ; Story, Eq. Jur. 12th ed. s. 768 ; Fry. Sp. Pf. 2d ed. 250. (h) Maxwell v. Montacute, Prec. Ch. 526 ; Vin. Abr. tit. Con- tract, H. 36. (i) Canton v. Canton, L. R. 1 Ch. 137, S. C. L. E. 2 H. L. 127. (5480) *PART V. [ * 389] VOLUNTARY DISPOSITIONS OF PROPERTY INDEPENDENTLY OF THE STATUTES OF ELIZABETH; HOW VALIDLY MADE, AND IN WHAT INSTANCES THEY ARE LIABLE TO BE SET ASIDE. CHAPTER I. VOLUNTARY AGREEMENTS AND COVENANTS; DEFEC- TIVE EXECUTION OF POWERS. It has been long settled that a mere gratuitously ex- Voluntary pressed intention, a promise merely voluntary, or, in agreement other words, a nudum pactum, is not binding at law (a) ; ?° ,?" court and that a Court of equity will not enforce specific " performance of any agreement unsupported by a valu- able consideration (6). The reason of this is that an agreement or attempt to assign is, in form and nature, incomplete, and the origin of the transaction must be inquired into by the Court; and where there is no con- sideration, the Court, upon its general principles, can- not complete what it finds imperfect (c). This principle of the Court to withhold its assist- (a) Heathcote v. Crookshanks, 2 T. R, 27; Kekewich v. Manning, 1 De G. M. & G. , per Knight Bruce, L.J., 188; Strong v. Bird, L. R. 18 Eq., per Jessel, M.R., 317. (6) Stanfield v. Miller, MS. 1726, Appendix No. VIII. ; Anon. case, MS., Appendix No. XII.; Hale v. Lamb, 2 Ed. 292, 294; Ward v. Audland, 8 Sim. 571, 576; Dillon v. Coppin, 4 My. & Cr. 647, 671; Pulvertoft v. Pulvertoft, 18 Ves. 90, 99; Wycherley v. Wycherley, 2 Eden, 177; Sutton v. Chetwynd, 3 Mer. 249; Jefferys v. Jefferys, Cr. & Ph. 138; Ellison v. Ellison, 6 Ves. 656; Brown- smith v. Gilborne, Stra. 738; Ayliffe v. Tracy, 2 P. Wins. 65; Basse v. Gray, 2 Vern. 692-3; Myddldon v. Kenyon, 2 Ves. Jun. 410 Colleen v. Missing, 1 Mad. 176-83; Ord v. Johnstone, 4 W. R. 37 Cheale v. Kerwood, 6 W. R. 494; Kennedy v. May, 11 W. R. 358 Groves v. Groves, 3 Y. & J. 163; Walrondv. Walrond, Johns. 18 Cochrane v. Willis. L. R. 1 Ch. 58; Richards v. Delbridge, L. R, 18 Eq. at p. 15; Fry, Sp. Pf. 2nd ed. 42. (c) M'Fadden v. Jenkins, 1 Hare, per Sir J. WigTam, V.C., 462; Green v. Paterson, 32 Ch. D., per Cotton, L.J., 105. (5481) 396 VOLUNTARY AGREEMENTS ance from a volunteer applies equally whatever may be [ * 390] the form of the *agreement -which it is sought to enforce — whether it be a contract, a covenant, or a settlement (d). Whether The doctrine was formerly held that, following the under seal or law, a Court of equity would enforce in favour of a not - volunteer a contract under seal (e). But this has been long since overruled, and is now well settled that the • Court will not enforce specific performance of a volun- tary contract or covenant, even with the legal conside- ration of a seal (/). Considera- The only consideration which will support an agree- tion must he ment so that it may.be specifically enforced is a valu- vaiuabie. & ^ e QQe j^. j s no ^ enoU g n fa^ the consideration is meritorous, as that of natural love and affection (g); and it must move from the person who seeks to enforce the agreement (h). In cases of mere gift, if anything be wanting to complete the title of the donee, the Court will not assist him in obtaining it, for a mere donee can have no right to claim more than he has received (i), nor (d) Colyear v. Musgrave, 2 Keen, 81; Jefferys v. Jefferys, Cr. & Ph., per Lord Cottenham, L.C., 141; In re D'Angibau, 15 Ch. D. 242, 246; In re Amlis, 31 Ch. D. 596. The same principle is fol- lowed in America: see Rawle, Covenants (Amer.), 4th ed. 663 et seq. ' ( ies ou r w ' appointee. It has been frequently decided that the Court will Will Court relieve against a defective execution of a power by a relieve married woman-, in favour of a creditor or purchaser (g); ^ s ? 1 " s . t r although this has been doubted by Sir Thomas Plumer execu t; ou j« (h), upon the ground that she could not enter into a married binding contract. woman? The point has not been expressly decided whether * the Court will relieve against a defective execution of a power by a married woman in favour of her child, where the consideration is merely meritorious. The dicta of Lord Northington, L.C., in Wright v. Lord Cadogan (i), although not necessary for the decision in that case, shew plainly his opinion that the Court would so relieve where there is a meritorious quality in the person who is to take *under the appointment [* 397] And upon principle it would seem to be immaterial to the granting of such relief what was the quality of the appointer (k). Principle The extraordinary relief thus afforded by the Court considered. to wives and legitimate children forms an exception .to the general rule that nothing less than a valuable con- sideration will secure the intervention of the Court to alter legal rights. The exception thus created can hardly be said to be governed by any definite principle of reasoning ; for, though it is said to be founded on the legal obligation of providing for a wife and children (I), it is not af- fected by the question whether they are already suffi- ciently provided for (m) ; and, though professing to (/) Blake v. Mancell, 2 B. & B. 38, n ; Pennefather v. Penne- falher, Ir. E. 7 Eq. 317 ; Farwell, Pow. 157. (g) Pollard v. Grenvil, 1 Ch. Ca. 10 ; Doe v. Weller, 7 T. E. 478, 480 ; Dowell v. Dew, 1 Y. & C. Ch. 345 ; Stead v. Nelson. 2 Beav. 245 ; Thackwell v. Gardiner, 5 D. & Sm. 58, 65 ; Farwell, Pow. 262. (h) Martin v. Mitchell, 2 Jac. & W. 413, 425. It seems doubt- ful whether Sir T. Plumer was referring to cases of defective execution of powers, or merely to contracts in fieri. See Sug. Pow. 8th ed. 536, 537 ; and Dillon v. Grace, 2 Sch. & Lef. 456. (i) 2 Eden, 252, 253, 259. (it) Sug. Pow. 8th ed. 536, 537 ; Story, Eq. Jur. 12th ed. 95. (/) Per Lord Loughborough in Hills v. Downton,5 Ves. 557, 563-4. (m) Kettle v. Townsend, 1 Salk. 187 ; Smith V 1 . Baker, 1 Atk. 386 ; Hervey v. Hervey, 1 Atk. 568 ; Chapman v. Gibson, 3 Bro. C. C. 229. (5489) 404 VOLUNTARY LEGAL LIABILITY be used for the purpose of assisting 'the " discharge of moral and natural obligation" (n), it draws an arbi- trary line which can hardly be said to be co-extensive with such obligations. Voluntary In no other instance will less than a valuable consid- gift must be eration set in motion the machinery of the Court to en- perfect, force a voluntary contract, or to compel the donor to perfect an imperfect gift. If the donor js the legal owner and makes a legal as- signment, the Court requires everything to have been done which was requisite for making the legal transfer complete. "Where the donor, being mere equitable own- er, is desirous that his trustee shall become a trustee for the object of his bounty, the Court requires clear and distinct evidence of- a declaration of trust in favour of the donee (o) ; and, as Lord Thurlow said (p), "Wherever' a voluntary deed is not sufficient to pass the subject out of the conveyer, there it never can be carried into execution without it is supported by a val- uable consideration." Every case on the point pro- fesses to adhere to this rule, but it will be found that [ * 398 ] * opinions as to what is " sufficient to pass the subject out of the conveyer " are, to some extent, conflicting. Legal lia- Where by a perfect voluntary instrument a person bility tho.igh has subjected himself to a legal liability, although the no legal legal transfer of the property may not be thereby com- plete, the Court will enforce that legal liability ; and the fact that the claimant is a mere volunteer is of no value in favour of those who represent the author of the instrument (q). So where by bond (r), covenant (s), promissory (n) Per Lord Alvanley in Chapman v. Oibson, 3 Bro. C. C. 229- 230 ; and see per Lord Northington, L. C. , in Wright v. Lord Ca- dogan, 259. (o) Bentley v. 3Iackay, -15 Beav. 12, 18-19 ; see note to Bonham v. Bonham, 2 Vent. 365. (p) See Colman v. Sarrell, 1 Ves. Jun. 50, 54. (q) Fletcher v. Fletcher, 4 Hare, 74, 76, 77 ; and see Budge v. Budge, 16 Beav. at p. 34. (r) Bamsden v. Jackson, 1 Atk. 294 ; Wall v. Palmer, 3 Hare, 532 ; Garrard v. Lord Dinorben, 5 Hare, 213 ; Dening v. Ware, 22 Beav. 184 ; Markwell v. Markwell, 34 Beav. 12. (s) Williamson v. Codrington, 1 Ves. 511 ; Giles v. Boe, 2 Dick- ens, 570 ; Clough v. Lambert, 10 Sim. 174 ; Fletclier v. FletcJter, 4 Hare, 67 ; Watson v. Parker, 6 Beav. 283 ; Lomas v. WriglU, 2 (5490) transfer. WHEN ENFORCED. 405 note(tf), or otherwise (m), a person has voluntarily sub- jected himself to a legal liability, has created a debt in favour of a volunteer, and the Court is not called upon to do any act to perfect the instrument (v), the Court, if the legal title is free from doubt, will enforce that instrument. If the legal title is doubtful, the Court will let the parties try it at law (w), and, if it be doubt- ful whether the instrument be voluntary or for value, may direct an issue (x). * This question frequently arises in the administration of the estate of the voluntary donor. The Court, where the legal title is clear, will enforce the claim of the vol- unteer against the assets of the voluntary donor (y) ; postponing the claim, of course, to that of a creditor for value (z), but preferring it to that of a legatee (a). In bankruptcy (b), however, whether under the Act of * 1869 (c) or that of 1883 (d), a volun- [ * 399 ] tary debt is paid pari passu with a debt for value (e). So Lord Hardwicke said (/), "Undoubtedly a bill may be for satisfaction of a debt out of assets real and personal, which debt may be created voluntarily by the testator; for though one cannot come into Equity to supply a defect in a voluntary deed without considera- tion; or, in many instances, cannot come for specific performance of such an agreement : yet, if he has a specialty, he does not want proof of consideration, but My. & K. 769 ; Alexander v. Brame, 19 Beav. 436 ; Hales v. Cox, 32 Beav. 118 ; Bonfield v. Sassall, 32 Beav. 217 ; Patch v. Shore, 2 Dr. & Sm. 589. (t) Lloyd v. Chune, 2 Giff. 441 ; Dawson v. Kearion, 3 Sm. & G-. 186 ; Arthur v. Clarkson, 35 Beav. 458. (u) Fairbeard v. Bowers, Prec. Ch. 17 ; Ex parte Pottinger, 8 Ch. D. at p. 626. (v) Fletcher v. Fletcher, 4 Hare, 67, 74. (w) Colman v. Sarrel, 1 Ves. Jud. 50; Alexander v. Brame, 19 Beav. 436 ; Hervey v. Audland, 14 Sim. 531. (x) Hepworth v. Heslop, 6 Hare, 561. (y) Supra. (s) Patch v. Shore, 2 Dr. & Sm. 589 ; Blount v. Doughty, 3 Atk. 483 ; Bamsden v. Jackson, 1 Atk. 294. (a) Markwell v. Markwell, 34 Beav. 12, 418 ; Patch v. SJwYe, 2 Dr. & Sm. 589 ; Adames v. Hallett, L. E. 6 Eq. 468 ; Ex parte Pottinger, 8 Ch. D. 621, 626. (b) In re Maggi, 20 Ch. D. 545. (c) 32 & 33 Vict. c. 71, s. 32. Id) 46 & 47 Viet. c. 52, s. 40 (4). (e) Exparte Pottinger, 8 Ch. D. 621, 626. (/) Williamson v. Codrington, 1 Ves. 514-5. (5491) 406 VOLUNTARY may come into Equity as well as law to have satisfaction for the debts on that specialty out of assets; and then the Court will not send it to law, but will judge whether he has a specialty or not. Indeed,- if it appears doubt- ful to the Court whether it is a specialty on which an action at law could be' maintained, or the damages so uncertain that it could not be settled without being tried by a jury, the court will as in other cases, have », the aid of a Court of law; but, unless such a necessity, will not send it to law to make two suits out of one " (g). But where there is no valid legal liability, the Court will not enforce a voluntary promise against "the estate of the Voluntary donor. MarlerY. In Marler v. Tommas (h) a post-nuptial settlement' Tommas. was executed by a married woman of her property. It contained an untrue recital that she had paid the trus- tee a sum of £2000, and he executed the deed upon the faith of a promise made to him by her to pay him this sum out of her separate estate. No such payment was ever made. It was held by Sir George Jessel, M.E., that, as a bare volunteer could not enforce this promise against the assets of the promisor, the married woman's estate could not be made liable to pay this sum either by the trustee or a volunteer under the settlement. Covenants. [* 400] *Where executors refused to perform a vol- untary covenant for further assurance entered into by their testator, the Court, in a suit to administer the covenantor's estate by a third person, refused to allow the covenantee to prove as a creditor, but allowed him to bring an action at law for damages (i). But in Cox v. Barnard (k) Sir J. L. Knight Bruce, V.C., in a suit to administer the estate of a testator who had entered into the usual covenant for further assurance, held that the covenantee was entitled to damages from the Court (g) See also Vernon v. Vernon, 2 P. Wins. 595, S. C. 4 Bro. P. C. 26, commented on in Stephens v. Trueman, 1 Ves. 74; and see Goring v. Nash, 3 Atk. 186; BougUon v. Bougldon, 1 Atk. 625; Colman v. Sarel, 1 Ves. Jun. 50, 3 Bro. C. C. 12, 14-15; Saltern v. Melhuish, 1 Amb. 247; Davenport v. Blshopp, 2 Y. & C. Ch. 451, 460, S. C. 1 Phil. 698. (h) L. R. 17 Eq. 8; and see Pownall v. Anderson, 2 Jur. (N.S.) 857. (?) Eervey v. Audland, 14 Sim. 531, 535; Ward v. Audland, 16 M. & W. 864; Aulton v. Atkins, 18 C. B. 249. (k) 8 Hare, 318; commented on Vogle v. Hughes, 2 Sm. & Gj. 36; and see Williamson v. Codrington, 1 Ves. 512. (5492) COVENANTS. 407 without having recourse to a Court of law. This was followed in Hales v. Cox (I), where the person entitled to the benefit of a covenant was held entitled to prove for damages against the assets of the testator under a covenant for quiet enjoyment. The fact that the covenant is made not with the per- Covenant son entitled to tho benefit of it, but with trustees for whether with him, makes no difference (m). The rights of the cestui tlu stees or cestui GU6 que trust under the covenant do not depend on the t Tas t imma- caprice of the trustee so as to leave him without rem- terial. edy if the trustee should refuse to bring an action. So, if the trustee refuses to enforce the covenant, the cestui que trust may use the name of the trustee in an action at law (n), or may bring an action in his own name in equity (o), as the case may require. So, where the bill was filed to obtain satisfaction in respect of a voluntary covenant to transfer stock into the names of C. and D. as trustees, or some other per- son to be nominated by the cestui que trust, it was held that the suit could be sustained without making C. and D. parties (p). A voluntary agreement to pay a sum of money should Deed neces- be contained in a deed in order to create a legal debt, sary. for " every deed in itself imports a consideration — viz., the will of him that made * it; and therefore, [* 401] where the agreement is by deed, it shall never be called a nudum pactum " (q). In other respects, where at least the covenantor is living, or where specific per- formance of a covenant in a deed is sought, a voluntary agreement stands scarcely, or not at all, on a better footing than if it were contained in an instrument un- sealed (r). The same general principles obtain in America in re- Same prin- lation to enforcing voluntary covenants in the adminis- p'P" 33 a PP ] y B _ in America. (I) 32 Beav. 118. (m) Fletcher v. Fletcher, 4 Hare, per Sir J. Wigram, V.C., 77; and see Gandy v. Gandy, 30 Ch. D. 57, 74. (») Fletcher v. Fletcher, 4 Hare, per Sir J. Wigram, V.C., 78; Bridge v. Bridge, 16 Beav. 320-1; jerdein v. Knight, 2 J. & H. 325. (a) Gandy v. Gandy, 30 Ch. D. 73, 74, 75. (p) Watson v. Parker, 6 Beav. 283. (q) Plowd. 309; Shubrick v. Salmond, 3 Burr. 1637-9, 1 Fonbl. Eq. 342, n. (r) Kekewieh v. Manning, 1 De G. M. & G., per Knight Bruce, L.J., 188; ante, p. 390. (5493) 408 VOLUNTARY COVENANTS. Second settle- ment of same fund creates no debt. tration of the covenantor's estate, subject, of course, to the application of local statutes (s). "Where A. transferred stock into the names of trus- tees and executed a voluntary deed declaring the trusts, and then, by a second deed, attempted to declare dif- ferent trusts of the same stock, and failed because he had no power to alter them, the consequence was held to be that the second deed became inoperative and fail- ed altogether; that it was like settling particular chat- tels on one for life with remainder over, and by a subsequent deed attempting to give a life interest in them to some one else; that, the subject of the settle- ment being one and the same fund, which alone the second deed attempted to affect, no damages at law could be obtained on the second deed, which therefore gave no rights against the settlor's assets (t). A voluntary conveyance of lands not in existence, but of a stated value, by a man to his servant, has been held good in equity between the parties, as a covenant to convey lands of equal value on which damages could be recovered at law (u). (s) Eawle, Covenants (Amer.) 4th ed. 659 et seq. (t) Newton v. Askew, 11 Beav. 145. («) Carey v. Stafford, 3 Sw. 427. (5494) *CHAPTER II. [*402] GIFT OF LEGAL AND EQUITABLE INTEREST INTER VIVOS. Inasmuch as an imperfect gift passes no property, the Imperfect question, in the- words of Lord Justice Knight Bruce, gift passes no " whether an act or intended act of bounty, whether a P r0 P ert y- gift or a promised or intended gift, was in truth a per- fect act, a completed gift, resting neither in promise merely, nor merely in unfulfilled intention, or was in- complete, was imperfect, and rested merely in promise or unfulfilled intention " (v), is one of primary importance. From its very nature this question is frequently one of difficulty and sometimes of very great nicety, owing to the circumstances of the case from which the true intention of tbe parties has to be inferred, and the pro- priety of carrying that intention into effect satisfactorily determined (w). A complete gift inter vivos of property of any kind Complete gift whatever, either of real or personal property, in posses- * nter ™™ s sion, reversion, or remainder, or of a thing in action, ^ e ° ™ aYa or of any interest in such property, may be effectually made in one or other of the following three ways : — 1. The donor may transfer the property to the per- sons for whom he intends to provide. 2. The donor may transfer the property to a third person, as trustee for the purposes of the settlement by which he provides for the intended donees. *3. The donor may declare himself a trustee [*403] of the property for the intended donees (x). (v) Kekewich v. Manning, 1 De G. M. & G. 187 ; Harding v. Harding, 17 Q. B. D. at p. 444. (w) Hartley v. Nicholson, L. R. 19 Eq. 239 ; see 2 Spence, Eq. Jur. 881, 895 ; Lewin, 8th ed. eh. 6 ; Ellison v. Ellison, 1 Wh. & Tu. L. C. 6th ed. 300 et seq.; Dav. Prec. 3rd ed. vol.3, 686etseq. (x) Milroy v. Lord, 4 D. F. & J., per Turner L.J. 274 ; War- riner v. Sogers, L. R. 16 Eq. 340 ; Heartley v. Nicholson, L. R. 19 Eq. 242. (5495) 410 GIFT WHEN COMPLETE. What is a The essential characteristics of a complete gift of complete gift property by either of the first two of these three ways to the donees j s fa a ^ fa e d on0 r has parted with his entire interest in or to trustees ,-. for them. the Property. How donor can declare himself trustee. In order to establish a complete gift of property either by a direct transfer to the intended donees, or to trustees for them, it must be clearly proved that the donor has done such acts as amount to a conveyance or assignment of the property, so as completely to divest himself of his entire interest and confer that interest either on the donees (who then acquire the beneficial interest in the property) or on the trustees for them (y). So, Lord Eldon said, in Ellison v. Ellison (z) : " I take the distinction to be, that if you want the assis- tance of the Court to constitute you a cestui que trust, and the instrument is voluntary, you shall not have that assistance for the purpose of constituting you cestui que trust, as upon a covenant to transfer stock, &c, if it rests in covenant and is purely voluntary, this Court will not execute that voluntary covenant (a), but if the party has completely transferred stock, &c, though it is voluntary, yet the legal conveyance being actually made, the equitable interest will be enforced by this Court." The third mode of transfer of property — namely by the donor declaring himself a trustee for the donees- 5 — was clearly recognized by Lord Eldon in Ex parte Pye (b) when he said : " It is clear that this Court will not as- sist a volunteer ; yet if the act is completed, though voluntary, the Court will act upon it. It has been decided that upon a covenant to transfer stock this Court will not interpose ; but if the party has declared himself a trustee of that stock it becomes the property of the cestui que trust, without more, and the Court will act upon it." [*404] *The question i n cases of this last mode of trans- fer of property is whether the intending donor by acts or words, in addition to, and independent of, the im- perfect gift, has constituted himself a trustee (c). The difficulty consists in determining whether the (v) See Richards v. Velbridge, L. R. 18 Eq., per Jessel, M. R. 14. (2) 6 Ves. 662. (a) Colyear v. Countes of Mulgrave, 2 Keen 81. (6) 18 Ves. 149 ; Meek v. KeiileweU, 1 Hare, 470, S. C. 1 Ph. 342. (e) Heartly v. Nicholson, L. R. 19 Eq. 242. (5496) GIFT WHEN COMPLETE. 411 particular circumstances of the case do or do not shew an intention on the part of the donor to make himself a trustee, and to deprive himself thenceforward of the beneficial ownership of the property. For a man to make himself a trustee there must be an expression of intention to become a trustee (d). It is not necessary that the declaration of a trust should be in terms ex- plicit. But what is necessary is that the donor should have evinced by acts which admit of no other interpre- tation that he himself had ceased to be, and that some other persoD had become, the beneficial owner of the subject of the gift or transfer, and that such legal right to it if any, as he retained was held by him in trust for the donee (c). The mode in which such a trust may be declared de- Mode of de- pends on the nature of the property. daring trust. A trust of personal property may be declared by parol or in writing (e); while a trust of real property must be proved by writing signed by the person enabled by law to declare the trust in order to satisfy the Statute of Frauds (/). If a man declare himself a trustee of the property Voluntary he has made a complete gift of the beneficial inter- declaration est (g), and therefore, whatever rule there may be oft ™ stis against enforcing a claim by a volunteer, it does not go ° ' apply to the case of a cestui que trust who claims against his trustee. .For that which is considered by , the jurisdiction of equity a trust may certainly be created gratuitously. A trust is not affected by the doctrine that a voluntary agreement, or mere nudum pactum, cannot beenforced by the volunteer, *be- [*405] cause in effect no contract has been made with him (h) ; and therefore the absence of consideration for its creation is absolutely immaterial (i), If the title is so far com- (c) Heartley v. Nicholson, L. B. 19 Eq. 242. (d) Richards v. Delbridge, L. E. 18 Eq. 15. (e) Milroy v. Lord, 4 D. F. & J. 274 ; post pp. 414, 444. (/) Section 7 ; post, p. 443. (g) 3Ieek v. Rettlewell, 1 Hare, 464, 472, S. C. 1 Ph. 342 ; War- riner v. Rogers, L. E. 16 Eq. 340 ; Richards v. Delbridge, L. E. 18 Eq. 11 ; Heartley v. Nicholson, L. R. 19 Eq. 233 ; and see Hard- ing v. Harding, 17 Q. B. D. at p. 444. (h) Post, pp. 447 et seq. (i) Kekewieh v. Manning, 1 De G. M. & G, 189-190 ; Ex parte Pye, 18 Ves. 140, 149 ; Shane v. Cadogan, Sug. V. & P. app. to 11th and previous editions, and stated in Beatson v. Beatson, 12 Sim. 291 ; James v. Bydder, 4 Beav. 600 ; Drosier v. Brereton, 15 (5497) 412 > GIFT WHEN COMPLETE. plete that the Court is not called upon to act against the assignor, it will assist the donee in obtaining the property from any person who would be treated as a trustee for him. A declaration of trust is considered, in equity, as equivalent to a transfer of the legal es- tate ; and if the transaction by which the trust is cre- ated is complete, and if what has been done is equiva- lent to a transfer of the legal estate, the Court will act upon it and enforce it (k). So, where the ultimate trust declared by a settlement was for the next of kin of the settlor, the property having been duly transferred to the trustees, the Court refused to allow the trust to be put an end to, although the next of kin were mere volunteers (I). Of course a complete voluntary deed expressed and intended to be irrevocable cannot be set aside merely because after executing it the grantor has changed his mind (m). But, if a perfect voluntary instrument is being prepared, and the settlor dies before it is actually completed, it is void (n). It is evident that each individual case must vary ac- cording to the nature of the property assigned, the in- terest of the donor in that property, and the mode in which he intended his gift to operate. Classification The best classification of the cases appears to be as of cases. follows : — I. Gift with I. Cases in which the donor has both the legal and mtentionto t * 406 J the * equitable interest in the property; or, transfer legal where he has only the equitable interest, but can obtain title. a transfer of the legal interest, either to the donees, or to trustees for them (o). Beav. 221 ; Jones v. Lock, L. R. 1 Ch. 25, where Lord Cranwortb said the dictum attributed to him in Scales v. Maude, 6 De G. • M. & G. 51, must have had reference to the special circumstances of the case. He was there clearly referring to the rule that an imperfect legal assignment will not be supported as a declaration of trust unless for value. Lord Thurlow used words almost iden- tical in Colman v. Sirrel, 3 Bro. C. C. 14. (k) Per Lord Hatherley (then SirW. P. Wood, V.C.) in Don- aldson v. Donaldson, Kay, 718 : In re Walhampton Estate, 26 Ch. D. 396. (I) Paul v. Paul, 20 Ch. D. 742. (m) Taker v. Taker, 31 Beav. at p. 644, S. C. 3D.J.& S. 487 ; Coutts v. Ackviorth, L. R. 8 Eq. 563, 564. (n) Coningham v. Punkett, 2 Y. & C. C. C. 245 : Lambert v. Overton, 13 W. R. 227. (o) Post, pp. 425 et seq. (5498) GIFT WHEN COMPLETE. 413 II. Cases in which the donor, whether he is in fact n. Gift of the legal and equitable owner, or merely the equitable mere equitable owner of the property, only intends to confer on his lnter ests. donees his equitable interest in that property (p). III. Cases in which the donor wishes to give his III. Gift of donees the benefit of property belonging to him, which le 9 al interest is of a legal nature, but which is not assignable at ^j^fbf law (q). In this chapter it is only proposed to consider the cases which arise under the first class; which really con- sist of two divisions. I. Cases in which the donor is both the legal and Donor parts equitable owner, and intends to convey his interest to witn legal the donees direct or to trustees for them (r). estate. It is clear that where the property has been actually Gift complete conveyed or transferred to the doneesj so as to give them 'when legal a good title at law, the gift is complete. compete 8 even :f donee And it has been decided that a complete gift of real is ignorant of or personal property vests the property in the donee at gift- once, subject to his dissent. The donee may by his dissent render that gift null and void; but the fact that he is wholly ignorant of the transfer does not af- fect the transfer of the legal title to the property (s). It is a well-established principle that, if a voluntary The Court gift is intended to be effectuated in one way, the Court will not after- will not give effect to it by applying another way. If the intended it is intended to take effect by transfer, the Court will mode of S ift - not hold the intended transfer to operate as a declara- tion of trust, for then every imperfect instrument would be made effectual by being converted into a perfect trust (f). *But although the Court will not convert an im- [*407] (p) Post, pp. 438 et seq. (q) Post, pp. 453 et seq.' (r) Post, pp. 407 et seq. (s) Butler's and Baker's Case, 3 Rep. 25 a; Thompson v. Leach, 2 Vent. 198 ; Siggers v. Evans, 5 E. & B. 367 ; Standing v. Bow- ping, 31 Ch. D. 282. (t) Milroy v. Lord, 4 D. F. & J. 274, post, p. 414 ; Richards v. Delbridge, L. R. 18 Eq. 15; Moore v. Moore, L. R. 18 Eq. 482, 483, 484; Seartley v. Nicholson, L. R. 19 Eq. 241, 242 ; In re Breton's Estate, 17 Ch. D. 41; Lee v. Magrath, 10 L. R. Ir. 45, 313 ; In re Shield, 53 L. T (N. S.) 5; post, pp. 430, 439. 32 STAT, of eliz. (5499) 414 GIFT OF LEGAL perfect gift into a declaration of trust merely on account of that imperfection, yet an intending donor may by acts or words, in addition to, and independent of, the perfect gift, have constituted himself a trustee (u). This question is one of the real intention of the donor, which has to be inferred from a consideration of all the facts of each particular case. If the gift is im- perfect merely because the donor was mistaken as re- gards the proper and legal mode of effectuating that which he intended to do, the Court will not assist the volunteer by declaring the donor a trustee for him (v). Gift of A gift of chattels may be made by parol ; or the chat- chattels tels may be assigned by deed. bv parol ^ *^ e S*^ * s ma< ^ e by parol, it was formerly held that it must be accompanied by actual delivery (w) in order to vest the legal estate in the donee (x) even if the chattels were at the time of the gift in his posses- sion, and that until then the gift was revocable (y). In Ward v. Audland (z), however, Baron Parke dis- sented frord this. The true view seems now to be this. A parol gift of chattels is good without actual delivery, provided that there is a clear intention on the part of the donor to give, and also a clear intention on the part of the donee to receive and act upon such gift (a). It requires the assent of two minds to make a gift, as it does to make a contract. So an alleged gift of a cheque was held to be a loan, as it had not been received as a gift, but as a loan, by the alleged donee (b). (u) Heartley v. Nicholson, L. R. 19 Eq. 242 ; Baddeley v. Bad- deley, 9 Ch. D. 113. (v) In re Breton's Estate 17 Ch. D. 420, 421 ; but see Baddeley v. Baddeley, 9 Ch. D. 113. (w) Shower v. Pilch, 4 Ex. 478 ; and see Spralley v. Wilson, F. Holt, 10, 12, n., and the explanation of that case in Bunn v. Markham, 7 Taunt. 226-7, 2 Mars. 532, 535-6, Holt, 352 ; Bourne v. Fosbroolce, 18 C. B. (N.S.), per Erie, C.J., 524. (x) Irons v. Smallpiece, 2 B. & Aid. 551 ; Tate v. HiTbert, 2 Ves. Jun. 120, S. C. 4 Bro. C. C. 286 ; Miller v. Miller, 3 P. Wms. 356, 358 ; and Power v. Cook, I. R. 4 C. L. 24. [y) Jenk. Cent. 109, case 9, as to which see Ward v. Turner, 2 Ves. 442. (z) 16 M. & W. 862. (a) Flory v. Denny, 7 Ex. 583; Winter v. Winter, 9 "W. R. 747; Grant v. Grant, 34 Beav. 624 ; In re Harcourt, 31 W. R. 578 ; In re Eidgway, 15 Q. B. D. 446 ; post, p. 410. (6) Hill v. Wilson, L. R. 8 Ch. 888, 896. (5500) . AND EQUITABLE INTEREST. 415 Ten Austrian bonds transferable by delivery werf> given by a *memorandum signed by the tes- [ *408 J tator, and indorsed on the box which contained them, and its key was handed to the intended donee, while the box. was- kept by the testator till his death. It was held that, as no actual transfer of these bonds had taken place, the gift was incompleto (c). So where A., the owner of an old sword, wrote to B, his wife, directing her to deliver the sword to C. , although A. also wrote to C. .to express his wish that C. should have the sword, it was held the gift was incomplete, as the letters vested no present property in the sword in C. (d). But where A. had insured his life and given the pol- icy, of which he was the absolute owner, to his mother, and told her she might keep it, and had given her the receipts for two premiums which he had paid, it was held, on his death, to be a valid gift of the policy, but not of the money secured by it, to his mother (e). The mere delivery of a deed, accompanied by a parol agreement to give the debt due on an equitable mort- gage by deposit of that deed, is not a valid gift of the deed. The possession of the deed and the right to the beneficial interest under the equitable charge created by deposit of it are inseparable ; the deed itself is merely incident to the charge, which cannot be trans- ferred by a parol agreement, and therefore a good gift of the deed itself cannot be made by a mere delivery of it(/). A complete gift of chattels can also be made by deed. or fry deet *- In this case, as the property in the chattel passes by the deed, it is immaterial whether possession has or has not been delivered to the donee (g). The cases in which want of possession has been held to make such gifts void are those in which such absence of pos- session was evidence of fraud against third parties (h). If a gift of money be made and the person to whom (j;ft re tum- ed. (c) Trimmer v. Danby, 25 L. J. (N.S.) Ch. 424 ; but see In re Harcourt, 31 W. E. 578. (d) Douglas v. Douglas, 22 L. T. (N.S.) 127. (e) Rummens v. Hare, 1 Ex. D. 169 ; but see In re Richardson, 30 Ch. D. 396. (/) In re Richardson, 30 Ch. D. 396. (g) Shep. Touch. 285 ; Com. Dig. tit. Biens. D. 2 ; Carr v. Burdiss. 1 C. M. & E. 782, 788, 5 Tyrw. 309, 316 ; SiggersY. Evans, 5 E. & B. 367. (h) Ante, pp. 113 et seq. (5501) 416 GIFT OF LEGAL it is given restores it to the owner, or in any way puts it back under his control, or into his power, the gift is at an end (h). Gift eon- [ * 409] *Every person who receives a gift of course ditional. receives that gift subject to whatever conditions the donor may have chosen to impose upon it, and until and unless such conditions are fulfilled by the donee the gift is incomplete (i). So a gift of property subject to a mortgage by the donor remains primarily liable to pay the mortgage debt (k). Donatio The chief class of gifts, whether of chattels or other mortis causa, personal property, to which a condition -is always an- nexed by the donor or implied by the law, is that of donations mortis causa. Such a gift must be made by the donor in contem- plation of the near approach of his death. The condition to which such a gift is always subjected, either by the doner or by implication of law, is that the gift is to take effect only in the event of the donor's death. The thing given must, also, always be delivered to the donee, whether absolutely for his own benefit or upon some trust (I). when not I* * s hecause the transaction did not amount to a good; complete delivery, but was merely an order for delivery not fully carried out, being revoked by the death of the giver of the order, that a gift of a cheque, drawn by the doner on his bank, whether payable to bearer or to order, and not presented for payment till after his death (m), even with the delivery of his banker's pass- book to the donee (w), or when such cheque has not been payable till after the donor's death (o), or of the book of a depositor in a savings bank ( p), or of railway debenture scrip (q), have been held not to be good donations mortis causa. % . (h) James v. James, 19 L. T. (N.S.) 809, 811, per Sir J. Stuart. (i) Seale v. Hayne, 12 W. R. 239 ; Longdate v. Longdate, 1 Vern. 456; Grant v. Grant, 34 Beav. 626, 627; In re Wliiiaker, 21 Ch. D. 657. (fc) Owen v. Braddell, 7 Ir. R. Eq. 358. (I) See Wdrd v. Turner, 2 Ves. 431, 1 Wh. & Tu. L. C. 6th ed. 1077 et seq.; Dunne v. Boyd, I. R. 8 Eq. 609; Gross v. Cross, 1 L. R. Ir. 389. (m) Hewitt v. Kaye, L. R. 6 Eq. 198. In) Beak v. Beak, L. R. 13 Eq. 489; Rolls v. Pearce, 5 Ch. D. 730. (o) In re Mead, 15 Ch. D. 654. (p) M'Gonnell v. Murray, I. R. 3 Eq. 460. (a) Moore v. Moore, L. R. 18 Eq. 474. (5502) AND EQUITABLE INTEREST. 417 So, the subject-matter of the gift having been com- when good, pletely delivered to the donee, a "gift of a banker's de- posit note, with the view of giving the donee the whole sum secured by it (r), of a *promissory note, [ * 410] whether indorsed or unindorsed (s), of a bill of ex- change payable to self or order, indorsed or unindorsed (<), of a cheque drawn by the donor on his own bank to order, but negotiated by the donee through a foreign bank (»e), and of a cheque payable to the donor or order, but not indorsed by him (v), have been held to ' be good donations mortis causa. A gift of property which, or the security for which, Gift of passes by delivery, will be valid when delivered to the cne 1 ue - donee with the intention of giving expressed (w). A promissory note, or bill of exchange, or cheque payable to bearer will pass by delivery (x). But a cheque drawn by the donor on his own bank is nothing more than an order to his bankers as his agents to hand over the money to the donee; it is an order to obtain deliv- ery, not the actual delivery itself (y). So where a man gave a cheque to another and died before, by the fault of the donee, the cheque had been cashed, it was held that the gift was incomplete (z) ; but where the donee had before the death of the donor presented the cheque for payment, and it was only through the fault of the bankers that it was not then paid, the gift was held complete because the donor and donee had done all in their power to make the gift complete, aod the failure occurred merely through the fault of third parties (a). But the mere delivery of a bond not payable to bearer is not a complete gift (b). > By the common law no choses in action are assigna- Choses in ble (c), except bills of exchange by the law merchant. action origin- — ■ ally non- (r) Amis v. Witt, 33 Beav. 619 ; Moore v. Moore, L. E. 18 Eq. assignable in. 474; and see In re Mead, 15 Ch. t>. 651; Dunne v. Boyd, I. E. 8 i aw Eq. 609. (s) Veal v. Veal, 27 Beav. 303; ClemenU. Cheeseman, 27 Ch. D. 631. (I) In re Mead, 15 Ch. D. 651. (u) Rolls v. Pearce, 5 Ch. D. 730. (v) Clement v. Cheeseman, 27 Ch. D. 631. (w) MOulloch v. Bland, 2 Giff. 428; Faringion v. Parker, L. R. 4 Eq. 116. (x) 45 & 46 Vict. -c. 61, ss. 31 (2), 84. (yY Bewitt v. Kaye, L. R. 6 Eq. 198. (z) Tate v. BiWert, 2 Ves. Jun. Ill, 4 Bro. C. C. 286. (a) Bromley v. Brunton, L. R. 6 Eq. 275. (6) Stanfleld v. Miller, Appendix No. VIII. ; and see post, pp. 453 et seq. (c) 2 Bl. Com. 442; 10 Co. 48; Co. Litt. 232 b. (5503) 418 GIFT OF LEGAL Some now By different statutes the following kinds of choses in legally action have been made legally assignable. Bills of ex- assignable by c hange, cheques, and promissory notes (d), indorsed s a u es. bills of lading (e), policies of life assurance, either by indorsement, or by assignment by a separate instru- [ * 411] ment, written notice being given to the Com- pany (/) ; policies of marine assurance by indorsement (g), railway (h) and East India bonds (i), and stocks, shares, mortgage, and other debentures according to the provisions of the respective Acts of Parliament by which they are created or regulated. Judicature By the Judicature Act, 1873 (k), "Any absolute as- Act, 1873. signment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been, effectual in law (subject to all equities which would have been entitled to priority over the rights of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor." This section does not create any new right, but merely confers a new way of enforcing old rights (I). Section only Its scope is limited to " debts and other legal choses includes legal in action." It does not apply to equitable choses in choses in action at all, however assigned, action. For the section to apply in any particular case, the following three conditions must be fulfilled to make {d) 45 & 46 Vict. c. 61, ss. 31, 38, 73, 83, 84. (e) 18 & 19 Vict. ^. 111, s. 1. (/) 30 & 31 Vict. c. 144 ; see Scottish Amicable Life Assurance Society v. Fuller, 2 I. E. Eq. 53; Crossley v. City of Gasglow Life Assurance Co., 4 Ch. D. 421. (g) 31 & 32 Vict. c. 86; see Lloyd v. Fleming, L. R. 7 Q. B. 299; North of England Pure Oil Cake Co. v. Archangel Maritime Insur- ance Co., L. R. 10 Q. B. 249. (h) 8 & 9 Vict. c. 19. (?) 51 Geo. 3. c. 64, s. 4. (k) 36 & 37 Vict. c. 66, s. 25 (6), -which came into operation on Nov. 1, 1875 ; see 37 & 38 Vict. c. 83, ss. 1, 2. (0 Weaker v. Bradford Old Bank, 12 Q. B. D. 515. (5504) AND EQUITABLE INTEREST. 419 that chose in actions assignable in law which before this Act was not so assignable (m) : — The subject-matter assigned must be "a debt or other legal chose in action." The mode must be an absolute assignment *by writing, not purporting to be [ * 412] by way of charge only (n). Express notice in writing of the assignment must have been given to the debtor (o). A covenant in a voluntary deed or an agreement not Voluntary to exercise an equitable power operates in equity as a release of good release of the power (p). Copyrights in books P ower - (q) or in designs (r) are legally assignable by writing Copyrights onlv - writing. A power of attorney may sometimes be validly exer- Power of cised after the death of the person who gave it (s). attorney. As the right to sue is incidental to the conveyance of Gift of right property, and passes with it, so A., after having sold to set aside a property by deed to B. by a sale voidable in equity as voidable fraudulent, may afterwards give that property to C. ee ' By such gift, if complete in itself, A. gives to C. the right to set aside the fraudulent sale to B. (t). A gift to a charity must be made in accordance with Gift to the statutes which apply to charities (m). charity. Leaseholds must be duly assigned, and freeholds duly Leaseholds conveyed (v), by deed; and copyholds must be actually and real surrendered' (w). estate, how transferred. (m) See the notes to Byall v. Bowles, 2 Wh. & Tu. L. C. 6th ed. 799 et seq. (n) National Provincial Bank v. Harle, 6 Q. B. D. 626 ; Burlin- son v. Hall, 12 Q. B. D. 347; Walker v. Bradford Old Bank, 12 Q. B. D. 511; Ibberson v. Neck, Times Rep. (1886) 411. (0) Walker v. Bradford Old Bank, 12 Q. B. D. 511. (p) Isaac v. Hughes, L. R. 9 Eq. 191; Farwell, Pow. 14. (g) 5 & 6 Vict. c. 45 ; Power v. Walker, 3 M. & S. 7 ; Leyland v. Stewart, 4 Ch. D. 419. (r) 5 & 6 Vict. c. 100; Tewitt v. Eckhardt, 8 Ch. D. 404. (s) Kiddill v. Farnell, 3 Sm. & Giff. 428 ; see Ex parte Pye, 18 Ves. 140; Lepard v. Vernon, 2 V. & B. 51; Spooner v. Sandilands, 1 Y. & C. C. C. 390; and see now 45 & 46 Vict. c. 39, ss. 8, 9. (1) Dickinson v. Burrell, L. R. 1 Eq. 337, 342 ; see Blake v. Johnson, Prec. Ch. 142. («) See 9 Geo. 2, c. 36; Hawkins v. Allen, L. R. 10 Eq. 246. (v) Dillon v. Coppin, 4 My. & Cr. 647 ; Bridge v. Bridge, 16 Beav. 315. (w) Jeferys v. Jefferys, Cr. & Ph. 138 ; Tatham v. Vernon, 29 Beav. 604; Woodford v. Charnley, 28 Beav. 96. (5505) 420 GIFT OF LEGAL Thus in Colman v. Barrel (w) Lord Thurlow said : "Where a deed is not sufficient, in truth, to pass the estate out of the hands of the conveyer, but the party must come into equity, the Court has never yet exe- cuted a voluntary agreement. To do so would be to make him who does not sufficiently convey, and his executors after his death, trustees to the person to whom he has so defectively conveyed; and there is no case where a Court of equity has ever done that." Stocks and [* 413] *Stocks, shares, bonds, debentures, and other shares, how securities which are not assignable at law unless duly transferred, transferred, must be duly transferred (x), and not merely assigned or covenanted to be transferred (y). Antrobus v. Thus in Antrobus v. Smith (z) G. C, having ten Smith. shares in the Forth and Clyde Navigation, signed the following indorsement upon the receipt for one of the subscriptions : " I do hereby assign to my daughter A. C. all my right, title, and interest' of and in the inclosed ' call and all other calls of my subscription in the Clyde- and Forth Navigation;" but kept the paper in his own possession. It was held that this indorsement was not a complete gift, and could not be enforced after his death. Sir W. Grant said: "This instrument of itself was not capable of con- veying the property. It is said to amount to a declar- ation of trust. Mr. C. was no otherwise a trustee than as any man may be called so who professes to give prop- erty by an instrument incapable of conveying it. He was not in form declared a trustee; nor was that mode of doing what he proposed in his contemplation. He meant a gift. He says, he assigns the property. But it was a gift not complete. The property was not transferred by the act. Could he himself have been compelled to give effect to the gift by making an as- signment ? There is no case in which a party has been compelled to perfect a gift which, in the mode of mak- ing it, he has left imperfect." (w) 1 Ves. Jun. 54 ; and see Attorney-General v. W horwood, 1 Ves. 535, 539. (a;) Ante, pp. 403, 41.1. (y) Wiiherden v. Jumper, post, Appendix No. XI. ; Colman v. Sarrel, 1 Ves. Jun. 50; Ellison v. Ellison, 6 Ves. 656; Ex parte Pye, 18 Ves. 140, 145; Coningham v. Plunkett, 2 Y. &C. C. C. 245 Bridge v. Bridge, 16 Beav. 315; Beech v. Keep, 18 Bear. 285 Searle v.- Law, 15 Sim. 95; Lambert v. Overtoil, 13 W. R. 227 contra, Airey v. Hall, 3 Sm. & Giff. 315: ante, pp. 389 et seq. . («) 12 Ves. 39, 46. (5506) AND EQUITABLE INTEREST. 421 This case was followed by Dillon v. Coppin (a), Dillon v. where a man assigned East India stock and shares in Coppin. the Globe Insurance Company by a deed which was not an effectual transfer of them. Lord Cottenham said: "Indeed, as to the East India stock, the whole is to be found in the Act of Parliament, and it is clear, as to both, that the property could not be transferred by the mere operation of the deed. As to both, further acts were necessary to * transfer the legal es- [* 414] tate to others. Indeed, as to the East India stock, the deed recites that P. was about to transfer it in order to effect his intention Here is no contract, but a deed-poll professing to assign property incapable of passing by such assignment; and the question is, whether the intended donee is entitled to the assistance of the Court to give effect to this imperfect gift." " It is not necessary to look further for this purpose than the case of Antrobus v. Smith (b). There the gift was in favour of a child, but it was voluntary and im- perfect, and the instrument was -found in the father's possession. I believe that case to have been well de- cided, and nothing which has since occurred affords any reason for departing from the principle upon which it is founded. .... It was indeed argued that the fa- ther had by that instrument made himself a trustee of the property. That argument was attempted in Antro- bus v. Smith (6); but it failed, as it necessarily must here. So far from making himself a trustee of the stock, he states upon the instrument his intention of perfecting the gift by a transfer of the stock, and en- deavours to provide the means by which the grantee may obtain the legal title" (c). Thus, in Milroy v. Tx>rd (d), Sir G. J. Turner, L. J., The Conrt said: "I take the law of this Court to be well settled, ^"tended that in order to render a voluntary settlement valid and mo de of gift, effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement bind- ing upon himself. He may, of course, do this by ac- tually transferring the property to the persons for (a) 4 My. & Cr. 647, 670. (b) 12 Ves. 39, supra, p. 413. (c) Ellison v. Ellison, 6 Ves. 656, 662; Pulvertoft v. Fulvertoft, 18 Ves. 84 99. (d) 4 D.'f. & J. 274; ante, p. 406. (5507) , 422 GIFT OF LEGAL Imperfect gifts not upheld as trusts declar- ed by settlor. whom he intends to provide, and the provisions will then be effectual; and it will be equally effectual if he transfers the property to trustees f or the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be per- sonal, the trust may, as I apprehend, be declared either' in writing'or by parol (e). But, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to support an im- [* 415] perfect gift. *The cases,I think,go further to this extent: that if the settlement is intended to be effectual by one of the modes to which I have referred, the Court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer, the Court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instru- ment would be made effectual by being converted into a perfect trust." Where the donor is the actual owner both of the legal and the beneficial interest in the property, the real difficulty in this class of cases usually turns upon the question whether the donor, by his acts or words, or both, has constituted himself a trustee for the donees. The gift in such cases is plainly an imperfect gift of the property according to its nature to the donees. A direct gift to the donees out and out requires a com- plete transfer by the donor both of his legal and of his beneficial interest in the property of his donees; whereas, to make out the donor to be a trustee of that property for the donees, it is only necessary to shew that while he retains the legal interest in the property, he has actually parted with his present beneficial in- terest in it, in favour of his donees. Warriner v. ^ n Warriner v. Rogers (/) an unmarried lady shewed Rogers. A. a box in her room, which she opened and put a note inside of, and then locked and handed to him, telling him to take it into his possession, and that it would be of service to him some day, but he must not open it till after her death. She retained the key. She after- wards made her will, and gave her residuary real and personal estate to B. After her death the box was opened. In it was found a closed envelope, with a (e) See post, p. 444. (/) L. K. 16 Eq. 340. (5508) AND EQUITABLE INTEREST. 423 paper writing inside it, written, dated, and .signed by the testatrix, and addressed to A , stating in effect that the contents of the box were a deed of gift of certain real and personal estate specified therein to A. The box contained the title-deeds of a farm not mentioned in the paper writing, and some other papers also not men- tioned in it. After the testatrix' death A. found an- other paper writing dated the day after tbe date of the first paper writing in the handwriting of and signed by the *testatrix and addressed to A. This [ * 416] paper stated where the title-deeds of the real estate specified in the first paper writing were. Bacon, V.C, held, following Milroy v. Lord (g), that the two papers were testamentary character, and there- fore could not be enlarged or converted into a declara- tion of trust; that the donor had no intention of part- . ing with anything at the time she signed the first paper, which was not intended to take effect until after her death; and that the second paper was plainly of a testamentary character, and nothing else. The rule of law by which a declaration of trust by the settlor is to be tested is, in this case, thus laid down by Bacon, V.C: " The one thing necessary to give validity to a decla- ration of trust — the indispensable thing — I take it to be, that the donor or grantor, or whatever he may be called, should have absolutely parted with that interest which had been his up to the time of the declaration — should have effectually changed his right in that re-, spect, and put the property out of his power, at least in the way of interest" (h). This case was followed with approval by Sir. George BicJmrds v. Jessel, M.E., in Richards v. Delbridge (i); in which the Delbridge. facts were as follows: D., the owner of leasehold premises and stock-in- trade, shortly before his death indorsed upon the lease and signed the following memorandum: — "This deed and all thereto belonging I give to E. from this time (a) 4 D. F. & J. 274. (h) L. B. 16 Eq. 348; but see Bichardsonv, Richardson, L. E. 3 Eq. 686; and Morgan v. MaUeson, L. E. 10 Eq. 475. (t) L. E. 18 Eq. 11; and see Moore v. Moore, L. E. 18 Eq. 474; Lee v. Magrath 10 L. E. Ir. 45, 313. (5509) 424 GIFT OF LEGAL forth with all the stock-in-trade." The lease was soon after delivered by D. to E.'s mother on his behalf. D., • by his will, not referring specifically to the lease and stock-in-trade, gave his property, after his wife's death, to his family. Sir George Jessel, M.E., held that there was no valid trust declared in favour of E., and dissenting from Richardson v. Richardson (i) and Morgan v. Malleson (fc), followed Milroy v. Lord (I) and War- riner v. Rogers (m), and laid down the true distinction [ * 417] to *be this: "For a man to make himself a trustee there must be an expression of intention to be- come a trustee, whereas words of present gift shew an intention to give over property to another, and not re- tain it in the donor's own hands for any purpose, fidu- ciary or otherwise " (n). Heariley v. I n Heartley v. Nicholson (o), A., the owner of sev- Mcholson. eral shares in a colliery, wrote to his daughter, saying, " I have another present to make shortly, one share of Ryhope Colliery, and you may now consider you have this to yourself from January 2 to receive dividends upon." After attending a meeting of shareholders at which his proposal to transfer the share to his daugh- ter was agreed to, and signing an entry to that effect (admittedly insufficient to pass the property in the share), A. wrote to his daughter to say he had made the share all right for her, and that dividends would be sent from January 2. Afterwards he inclosed her a cheque for the first dividend, and, in reply to a letter from her, wrote : " I have yours in reply to the receipt of dividend — long may you live to enjoy it ;" and in the same letter told her what he had done as to the transfer of the share at the above meeting of share- holders. Subsequently, A. by his will bequeathed one share in the colliery to trustees upon certain trusts for his daughter, and devised and bequeathed his residuary estate to his sons. The daughter claimed to be abso- ' lutely entitled to another share in the colliery besides the share bequeathed to her, on the ground that A. had by his acts and words made himself a trustee of one share for her. (t) L. E. 3 Eq. 686. (k) L. R. 10 Eq. 475. (/) 4 D. F. & J. 274. (m) L. E. 16 E (i . 340. fn) L. E. 18 Eq. 15. (o) L. E. 19 Eq. 233; and see Cross v. Cross, 1 L. E. Ir. 389; West v. West, 9 L. E. Ir. 121. (5510) AND EQUITABLE INTEKEST. 425 Bacon, V.C., after pointing out that no perfect trans- fer was at any time made by A., but that A. intended to give, and believed he had given, the share to his daugh- ter, proceeded to consider all the circumstances with regard to the following question, — Whether A. had by acts or words or both, in addition to, and independent of, the imperfect gift, made himself a trustee for his daughter. The test was whether or not A. had ceased to be, and his daughter had become, the beneficial, owner of the share, and whether A. had retained the legal right to it, if any, merely in trust for her. He *held [ *418 ] that all A. wrote and all A. did related to a gift or transfer of a nature wholly different from a trust ; and, following Milroy v. Lord (p), his own decision in War- riner v. Rogers (q), and Richards v. Delbridge (r),held that no trust was declared in favour of the daughter of the other share. There are two cases, however, which are entirely at variance with those just cited to prove that an imper- fect or ineffectual attempt to pass the legal title to prop- erty legally assignable can never be treated as a valid declaration of trust. The first of these cases is that of Richardson v. Bichardson v. Richardson (s). There A., by a voluntary deed, as- Richardson. signed to B. certain specific property, and " all other her personal estate," and appointed him her attorney, to recover, receive, and give receipts for the same. At this time A. held two promissory notes, the one paya- ble on demand to A., the other payable to A. or order (t). At the death of B., the assignee, the notes were found amongst his papers, but not indorsed. On the principle of Sekewich v. Manning (w),that an instru- ment intended as a present and complete assignment will be supported in equity, and may be considered to operate as a perfect declaration of trust, it was held by Lord Hatherly (then Sir W. P. Wood, V.C.) that the property in the notes passed by the deed to B., on the ground that the deed of assignment operated as a (p) 4 D. F. & J. 274. (q) L. E. 16 Eq. 340. (r) L. E. 18 Eq. 11. (s) L. E. 3 Eq. 686 ; commented on in Warriner v. Sogers, L. E. 16 Eq. 348 ; Ricliards v. Delbridge, L. E. 18 Eq. 13, 14. (I) The first note, it will be observed, was not assignable at law. («) See stat. 3 & 4 Anne, c. 8. In JBlakely v. Brady, 2 D. & "Wal. 311, the promissory note was not assignable at law. (5511) 426 GIFT OF LEGAL complete declaration of trust by A., of all her property, in favour of B. Morgan v. I n the second case — that of Morgan v. Malleson (v) Malleson. — A. gave Dr. Morris, his doctor, the following memo- randum, signedbyhim and attested by two witnesses: "I hereby give and make over to Dr. Morris an India bond, No. D 506, value £1000, as some token for all his very [ *419 ] kind attention to me during illness." The *India bond, which was transferable by delivery, was kept by A. By his will A. bequeathed his residuary personal estate to charities. Lord Bomilly, M.B., held that the memorandum was equivalent to a declaration of trust in favour of Dr. Morris. If the donor had said, " I undertake to hold the bond for you," or if he had said, " I hereby give and make over the bond in the hands of A.," that would have been a declaration of trust though there had been no delivery. This amounts to the same thing. Lord Eldon's decision in Ex parte Pye (w) was quoted in Richardson v. Richardson (x) as an authority for the proposition that the power of attorney was a good declaration of trust. Ex partePye. In that case the donor, wishing to purchase an an- nuity for a lady resident in France, authorized his agent there by writing to purchase it in her name and to draw on him for the necessary funds. The agent, finding the lady was married and also deranged, exer- cised his own discretion, and bought the annuity in the name of the donor. About seven months afterwards the donor sent to his agent a power of attorney to trans- fer the annuity into the lady's name, but died before his agent had exercised it. Lord Eldon held that the donor had made himself a trustee for the lady. There is enough in the report to shew that the donor (v) L. R. 10 Eq. 475 ; commented on in Warriner v. Rogers, L. E. 16 Eq. 348, 349 ; Richards v. Delbridge, L. R. 18 Eq. 13, 14 ; Baddeley v. Baddeley, 9 Ch. D. 113 ; and see Dav. Prec. Conv. 3rd ed. vol. 3, 689-690. (w) 18 Ves. 140; and see some additional particulars • in 2 Spence, Eq. Jur. 53 n. It was a cause in lunacy, the real title of which was Ex parte Mowbray. The Master' s report of the 27th of February 1811 is the only document which is material on this point to be found among the records of the Court or the papers in the matter of the lunacy. (ar) L. R. 3 Eq. 686. (5512) AND EQUITABLE INTEREST. 427 treated the annuity as belonging beneficially to the lady, and that he considered himself as only holding the legal interest for her benefit (y). And the power of attorney was evidence that he had constituted himself a trustee, and that he meant to give up his trusteeship and transfer the legal interest; but it is hard to see how the power of attorney itself could be taken to have made him a trustee, for by it he intended to get rid of the legal interest and to be no longer a trustee (z). *Lord Eldon said it was not necessary to decide [*420] whether the power of attorney had been well exercised, " as upon the documents before me it does appear that though in one sense this maybe represented as the tes- tator's personal estate, yet he has committed to writing what seems to me a sufficient declaration that he held this part of the estate in trust for the annuitant" (a). This case has been carefully examined in Warriner v. Rogers (b) by Bacon, V.C., who there pointed out that it fell distinctly within the principles of Milroy v. Lord (c), and that in Ex parte Pye (d) Lord Eldon's judgment proceeded emphatically upon the documents before him. Although there might not have been a complete transfer yet there had been a parting with the possession. The meaning and intention of the trans- action was, plainly, to give the property to a person who, when she had once received it, might have done what she would with it, if she were of sound mind. The object of the power of attorney was, not to make a new gift, but to rectify the error of the agent. Conveyances and assignments of property, whether Transfer by real or personal, from a husband to his wife have been husband to the subject of frequent and conflicting decisions. wife - It has for some time been doubted whether a differ- ent, principle applied, when the transfer of property was \ made by a husband in favour of his wife, from that '•' which applied when such transfer was made by thehus- (y) See Thorpe v. Owen, 5 Beav. 224. (z) See Dillon v. Coppin, 4 My. & Cr. 671 ; ante, p. 413. (a) See Airey v. Hall, 2 Sm. & Giff. 315; Parnell v. Hingston, 3 Sm. & Giff. 337; Kiddill v. Farnell, 3 Sm. & Giff. 428, 5 W. E. 793; Weale v. Olive, 17 Beav. 252; and Vandenberg v. Palmer, 4 K. & J. 204, 214. (6).L. R. 16 Eq. 350. (c) 4 D. F. & J. 264. (d) 18 Ves. 340. (5513) 428 GIFT OF LEGAL band in favour of a stranger; -whether, in fact, a trans- fer of property from a husband to his wife ought not to be, and was not regarded as, an exception to the general rule of law on the subject. The ground on which it has been sought to base this exception was that, as in law a husband could not formerly convey or transfer property to his wife, so as to vest in her the legal estate of that property (e), he [ * 421] must, therefore, be deemed to have *intended to make himself a trustee for hiB wife, in order to make his gift to her effectual (/). Grant v. In Grant v. Grant (g), which was a case of a gift of Grant. chattels by a husband to his wife, Lord Romilly, M.R., laid down this distinction as the ground of his deci- sion that the husband had made himself a trustee of the chattels for his wife : "In the case of husband and wife there cannot be a delivery of a chattel, and, there- fore it is impossible to give that completion to the gift that would be necessary to give effect to it between strangers. Therefore this comes under that class of cases in which it has been held that, though there is not an absolute delivery, a declaration of trust is suffi- cient" (h). Baddeley v. This has been followed with approval by Malins, V.C., Baddeley. in Baddeley v. Baddeley (i). In this case a husband executed a deed poll, by which he gave certain leasehold houses and ground- rents in Middlesex to his wife, in the following terms : "I do hereby settle, assign, transfer, and set over unto my said wife, E. B., as though she were a single woman, her executors, administrators, and assigns, all that my share in [certain specified houses and ground-rents in Middlesex], as though she were now a feme sole and unmarried, and in accordance with the spirit and inten- tion of the recent Act of Parliament entitled the Mar- ried Women's Property Act, 1870." This deed was (e) Co. Litt. 187 b. Phillips v. Barnet, 1 Q. B. D. 438, 441; and see Lewin, Trusts, 8th ed. 68-69; but see now 44 & 45 Vict. e. 41, s. 50; 45 & 46 Vict, c. 75, ss. 1 (1), 2, 5; post, pp. 424, 425. (/) See remarks of Hall, V.C., in In re Breton's Estate, 17 Ch. D. 419, 420. (g) 34 Beav. 623 ; but see Price v. Price, 14 Beav. 598, S. C. 605. (h) Grant v. Grant, 34 Beav. 624; but see the comments on this case in In re Breton's Estate, 17 Ch. D. 420. (i) 9 Ch. D. 113. (5514) AND EQUITABLE INTEREST. 429 duly registered in the Middlesex Registry, and E. B. entered into the receipt of the rents. Malins, V.C., held this was a case where the husband had declared himself a trustee for his wife, and that her entry into possession was a taking possession of her separate property under the trust. The husband was, no doubt, mistaken in thinking he could make this gift by way of assignment, but there was enough in the deed to make it operate a3 a declaration of trust which the Court ought to carry out. It will be observed that the decision here turned upon the fact *of E. B.'s entry into possession and re- [ *422] ceipt of the rents, and upon the special terms of the deed poll ; and did not really lay down any exception to the general rule of law in the case of a transfer between a husband and his wife (k) This has been followed by Bacon, V.C., in Fox v. Foxv. Hawks. Hawks (I). A husband, about to leave England for a residence in India, at the request of his wife, who was going to stay in England, by a deed, to which he and she alone were parties, assigned a leasehold house to her, "to hold the same unto the said E. A. F., her ex- ecutors, administrators, and assigns, as her separate estate," for the residue of the term. The title deeds of the house, and also the deed of assignment, were left by the husband in his wife's possession. Bacon, V.C., held that the deed purported to be, and was, an assignment by the husband to his wife, for her separate use, of this property ; that it was clear, from his evidence, that at the time he executed the deed he intended to make a settlement upon her ; that, knowing trustees might be appointed, and refusing to name one, he chose to constitute himself the sole trustee of this deed ; and that this was consistent with her afterwards requiring a power of attorney from him to enable her to deal with the house, and he declared the husband a trustee of the property for her. It should be observed that the judgment in this case does not establish an exception to the general rule of (k) See the comments on this in Hayes v. Alliance Co., 8 L. R. Ir. 154. (1) 13 Ch. D. 822 ; commented on in In re Breton's Estate, 17 Ch. D. 422. 33 STAT. OF ELIZ. (5515) 430 GIFT OF LEGAL law aa to imperfect transfers of property when that transfer is from a husband to his wife. It appears to proceed entirely upon the special facts of the case, and is, it is submitted, in harmony with the general rule of law on this subject. On the other hand, apart from the effect of the Con- " veyancing Act, 1881 (I), and of the Married Women's Property Act, 1882 (m), an imperfect gift from a hus- band to his wife has been treated in precisely the same way as if. such gift had been made by one stranger to another stranger. Inasmuch as in law, till recently, a [ *423] * husband could not convey or assign property to his wife, the only question that could arise in such a ease was whether or not he had made himself a trus tee for his wife. This question was tested by the prin- ciples laid down in Milroy v. Lord (n), and followed in Richards v. Delbridge (o), and, unless a clear intention to create such trust could be proved, the Court would not perfect an imperfect gift by making it take effect in a way not intended by the donor. Moore v. So in Moore v. Moore (p), Hall, V.C., held that a gift Moore. of railway scrip certificates by a husband to his wife, on which he received the dividends and paid the amount of them to her down to the time of his death, being a gift made bj him to his wife in an insufficient way, through ignorance of law, could not be supported as a trust. The husband had intended a gift, and had not meant to make himself a trustee ; and the question must be decided exactly in the same way as if a bill had been filed by the next friend of the wife against the husband in his lifetime. The same principle was applied in Ireland in the case of Hayes v. Alliance Co. [q), where an assignment of a policy by a husband to his wife by deed poll at- tested by one witness was held not to be a declaration of trust, because the intention of the husband was merely to assign the policy, In re Breton's This principle was carefully considered, in the re- instate, cent case of In re Breton's Estate (r), by Hall, V.C. (0 44 & 45 Vict, c. 41 a. 50. (m) 45 & 46 Vict. c. 75. ' (n) 4 D. F. & J. 264. (o) L. R. 18 Eq. 11. (p) L. R. 18 Eq. 474, 481, 482. (q) 8 L. R. Ir. 149 ; and see Lee v. Magrath, 10 L. R. Ir. 45. 313. (r) 17 Cli. D. 416. (5516) ' AND EQUITABLE INTEREST. 431 In that' case a husband, by three letters written and signed by him, and given by hirn to his wife, gave her certain furniture and other articles for her own use and benefit. The furniture and other articles were placed in the house they jointly occupied up to the time of his death, and were used in the ordinary way. By his will * he bequeathed his residuary estate on certain trusts. Hall, V.C., after commenting on the cases on the sub- ject, pointed out that the principle laid down in Hilroy v. Lard (r),* and followed by Sir G. Jessel, [ * 424 ] M.R., in Richards v. Delbridge (s), was applicable to every case of a gift, without any exception as to a gift from husband to wife. That principle was that, if a gift was intended to take effect by transfer, the Court would not hold the intended transfer to operate as a declaration of trust, for then every imperfect instru- ment would be made effectual by being converted into a perfect trust ; and it was clear that it was not the purpose or intention of the husband, in writing these letters, to constitute himself a trustee for his wife. The true view, it is submitted, is that followed by Hall, V.C. — namely, that imperfect gifts between hus- band and wife must be tested in the same way as im- perfect gifts between two strangers. In consequence, however, of recent statutory changes, . these conflicting decisions have become much less im- portant. By the Conveyancing Act, 1881 (f), which applies Conveyanc- only to conveyances executed after December 31, 1881, ingAct, 1881. freehold land, or a thing in action, may be conveyed by a husband to his wife and by a wife to her husband, alone, or jointly with another person. So far as a gift from husband to wife or from wife to husband is of property within this Act, this question cannot arise with respect to it, as the conveyance will, by virtue of the Act, effect a complete transfer of the property comprised in it. By the Married Women's Property Act, 1882 (m),- (r) 4 D. F. & J. 264. (s) L. R. 18 Eq. 11. (/) 44 & 45 Vict. c. 41, ss. 1 (2), 50. (At) 45 & 46 Vict. c. 75, ss. 1 (1), 2, 5, 25 ; see Griffith, 5th ed, 3, 4, 77. (5517) 432 GIFT OF LEGAL Married which came into operation on January 1, 1883, every Women's woman, whenever married, may after December 31, Property Act, 1882 (u), acquire any real or personal property as her separate property, in the same manner as if she were a feme sole, without the intervention of any trustee. The principles laid down in Milroy v. Lord (v), and followed in Richards v. Delbridge (w) and in In re Bre- ton's Estate (x) according to which gifts between hus- [ * 425 ] band and wife are tested in * the same way as gifts between two strangers, will now, it is conceived, always apply. Covenant to Inasmuch as the Court looks in each case to what is transfer, and proved to have been the real intention of the parties, it hold on trust follows that a voluntary instrument may operate both meanwhile. ag an i m p er f ec t assignment and as a valid declaration of trust. Legal title vesting in donee after- wards of no avail. So where a man entered into a voluntary covenant to surrender copyholds, and in the meanwhile to stand possessed of them for trustees for the volunteers, it was held that though the covenant could not per se be en- forced, yet a valid trust was constituted for the volun- teers (y). It makes no difference that the donee, by becoming at the death of the donor his personal representative, has been enabled himself to perfect the imperfect as- signment (z). The nature of the assignment cannot be altered after the death of the donor. Donor the equitable owner with power to obtain trans- fer of legal estate. II. The second division (a) consists of cases in which the doner is only the equitable owner, but can obtain a transfer of the legal estate, either to his donees directly, or to trustees for them ; and intends to do so. In this class of cases the gift is of course complete so 60on as the donor has actually conveyed, transferred, or assigned, as the case may require, his equitable interest (it) See Griffith, 5th ed. 14. (v) 4 D. F. & J. 264. (u>) L. R. 18 Eq. 11. (.t) 17 Ch. D. 416. (y) Steele, v. Waller, 28 Beav. 466 ; Beav. 12, 14. (z) Dillon v. Coppin, 4 My & Cr. 647 L. R. 18 Eq. 315. (a) Ante, p. 406. (5518) Markwell v. Starhwell, 34 and see Strong v. Bird, AND EQUITABLE INTEREST. 433 in the property, whether real or personal, to the do- nees ; and has also procured a transfer of the legal es- tate in his trustees, either to the donees, or to trustees for them. So where a transfer of stock has been actually made into the names o'f the trustees, arid trusts have been de- clared, the trustees will be compelled to perform the trusts (a), even though the trust property by accident gets back into the hands of the donor (b), *to [ * 426 ] whom the trustees cannot transfer it without a breach of trust (c). In Bridge v. Bridge (d), the property the subject of Bridge v. the voluntary settlement consisted of certain real es- Bridge. tate, shares in companies, foreign bonds (transferable by delivery), consols, and cash at a bank. The legal estate in all this property was at the date of the settle- ment vested in the trustees and executors of the set- tlor's uncle's will, upon trust to apply the interest for his benefit till he was twenty-five, when he was to be put into possession of the estates, and the money was to be paid over to him. The settlor, when twenty-two years of age, by a voluntary deed conveyed all his in- terest in the real estate to A. and B., to hold to the use of himself and A. and B. and their heirs upon trust to sell. He directed that the produce and personal estate and effects transferred or to be transferred into the names of the trustees should thenceforth be, and be con- sidered, vested in himself, A., and B., on certain trusts for himself and his children. The deed also contained a covenant for further assurance. The shares were transferred by the executors to the trustees of this deed shortly after its execution, but the consols and cash re mai-ned in the names of the executors, and the foreign bonds remained in their custody. (a) -Pulcertqfl v. Pulvertoft, 18 Ves. 84, 99 ; Attorney-General v. Whorwood, 1 Ves. 535, 539 ; Bill v. Curetnn, 2 Mv. & K. 503 ; Dilrow v. Bone, 3 Giff. 538 ; Jeffreys v. Jeffreys, Cr. & Ph. 138 ; Muggeridge v. Stanton, 7 W. K. 638 ; Milroy v. Lord, 4 D. F. & J. 264 infra. (b) Ellison v. Ellison, 6 Ves. 656, notes to 1 "Wh. & Tu. L. C. 6th ed. 302; Smithy. Lyne, 2 Y. & C. C. C. 345 ; Wlieatley v. Purr, 1 Keen, 551 ; Browne v. Cavendish, 1 J. & Lat. 637 ; and see'Tfy- croft v. Christy, 3 Beav. 238, 242 ; post, p. 445. (c) M'Donnelt v. Hesilrige, 16 Beav. 346." (d) 16 Beav. 315 ; but see Sug. V. & P. 14th ed. 719, and Dav. Pree. Conv. 3rd ed. vol. 3, 693 ; In re King, 14 Ch. D., per Hall, V.C., 184. (5519) 434 GIFT OP LEGAL Lord Romilly, M.R., held that the true construction of the deed was that, until the transfer of the legal in- terest in the choses in action to the trustees of the deed took place, the relation of trustee and cestui que trust did not arise, and that until it did arise the gift was only imperfect, and one which the Court would not in- terfere to complete or t create ; and that, as to the per- sonal estate, the settlement was only effectual with re- gard to the shares, which had been transferred by deed to the trustees of the deed. With regard to the real estate, he held that, as at the time of the settlement the settlor had merely an equitable interest, and the settle- ment could not then operate as a conveyance of the le- gal estate, no estate passed to the trustees under the deed, which was so far inoperative. It could not oper- [ * 427 ] ate as a declaration of trust, * because it did not purport to make the trustees of the will trustees to the donees under the settlement. The principles upon which Bridge v. Bridge (e) was decided by Lord Romilly, M.R., were adhered to by him Beech v. Kelp, in the subsequent case of Beech v. Keep (/). In that case consols, belonging beneficially to A. for life, with remainder to B. absolutely, stood in the names of two trustees, of the survivor of whom B. was the sole execu- trix. The consols remained in the names of the two trustees after their deaths, but B., as sole executrix, re- ceived the dividends and paid them over to A. B., after the death of the two trustees, by a voluntary deed assigned all her reversionary interest in the consols to A., "to the end and intent that he might become pres- ent and absolute owner thereof," and A. executed a re- lease of even date to B. of all claims. B. subsequently refused to execute a power of attorney to transfer the consols to A. Lord Romilly, M.R., held, following Bridge v. Bridge (/ ), that this was a case in which the relation of trus- tees and cestui que trust had not been created It must, he said, be regarded as if the interest had been present instead of reversionary; it was a case where the whole legal interest was vested in the defendant (B. ) subject to the life interest of the plaintiff (A). The voluntary deed was merely an incomplete assign- ment which might and ought to have been perfected by the transfer of the consols, if both parties had been (c) 16 Beav. 315. (/) 18 Beav. 285; see Sug. V. & P. 14th ed. 719. (5520) AND EQUITABLE INTEREST. 435 willing to complete the transaction, and which then would have been a complete transfer. It was clear, he said, from the statements in the bill that some further act was considered by both parties to be necessary to carry into effect the intention of the defendant, and to give the plaintiff the absolute interest in the stock. The ease of Bridge v. Bridge (g) has been doubted by Lord St. Leonards (h), so far as it decides that the. conveyance of an equitable estate in real property to volunteers is invalid. *Lord Hatherley (then Sir W. P. Wood, V.C. ), [*428] in Gilbert v. Overton (i), also commented on this deci- In Gilbert v. Overton (k), a settlor, holding an agree- gilbert v ment for a lease subject to rents and covenants, by a Overton. voluntary deed assigned all his interest to trustees to hold upon the trusts thereby declared, and shortly after, under the agreement, took a lease to himself. It did not appear whether at the date of the settlement the settlor was entitled to claim an immediate lease. The legal estate was never assigned to the trustees. It was held that the settlement was complete, and ought to be executed. Here there was nothing to shew that the settlor in- tended to obtain the transfer of the legal interest to the trustees at the time of the settlement, even if he had the power of doing so (I); or, in fact, that he had not done by the settlement all that it was in his power to do to pass the legal estate in the property. But in Bridge v. Bridge (g) it appeared that the settlor in- tended to obtain a transfer of the legal estate to the trustees of the deed of gift; so that, until that was actually done, the settlor bad not done all that it was in his power to do to complete his gift according to his intention. This decision is, in fact, an extension of the doctrine of Antrobus v. Smith (m) to cases in which the donor, though merely the equitable owner, had the (g) 16 Beav. 315. (A) Sug. V. & P. 14th ed. 719 ; and see Dav. 3rd ed. vol. 3, 693; and In re King, 14 Ch. D., per Hall, V.C, 184. (0 2 H. & M. 116. (7c) 2 H. & M. 110; post, p. 439. (0 See 2 H. & M. 116; and see Dillon v. Coppin, 4 My. & Cr. 671, as to the intention of perfecting a gift by transfer. [m) 12 Ves. 39; ante, p. 413. (5521) 436 GIFT OF LEGAL power to vary, and attempted to vary, the legal title. "The true construction of the deed," said Lord Romilly, M.R., (n), in-Bridge v. Bridge (o), "seems to me to be, that until that transfer took place the relation of trus- tee and cestui que trust was not to arise, and that until it did arise it was only an imperfect gift, which this Court would not interfere to complete or create" (p). It will also be observed that in Bridge v. Bridge (o), the deed contained a covenant for further assurance, and an agreement to transfer the personal estate; and that the executors of the will did, in pursuance of this [* 429] agreement, transfer to the trustees of the *deed certain shares while the settlor was under the age of twenty-five years. The suit, moreover, was not begun till after the settlor had attained that age when he had become entitled to the legal estate of both the personal and the real estate. These facts, it is conceived, shew that the settlor had not, except as to the shares, done all that he could to transfer or procure a transfer of the legal estate in the property settled. In Gilbert v. Overton (q), Lord Hatherley (then Sir W. P. Wood, V.C.), said : "I do not wish to say more as to Bridge v. Bridge (o) than this : that the point there dealt with will require much consideration. A man who conveys his equitable interest may well be considered to do all that can be required, and it would be a great extension of the established doctrine on these subjects to hold that if a legal estate is discovered, per- haps many years afterwards, to have been outstanding at the date of a voluntary settlement, the settlement itself is to be deprived of effect. Where a settlor by a ■voluntary instrument conveys all his interest, it may well be held that, if that interest proves to be merely equitable, the assignee becomes entitled to claim a con- veyance of the legal estate from the person in whom it may be vested." This, it is conceived, cannot apply in cases where the settlor intended and attempted to obtain a transfer of the legal interest, for he would hardly attempt or in- tend to deal with a legal estate of which he was igno- rant. The decisions in Bridge v. Bridge (o), and Beech v. Keep (r) are expressly confined to cases in which the (to) 16 Beav. 326. (o) 16 Beav. 315. (p) See aPDonnell v. ffcsilrige, 16 Beav. 348. (g) 2 H. & M. 116. (r) 18 Beav. 285. (5522) AND EQUITABLE INTEREST. 437 settlor intended and ineffectually attempted to pass the legal interest, and are not really opposed to any other cases. In Woodford v. Charnlcy (t) A. was the mortagee in Woodford v. fee of freeholds conveyed to her to secure £5000 and ChanUey. interest. The deed contained no covenant for pay- ment of the £5000. A. by a voluntary deed assigned the sum of £5000 to trustees upon certain trusts for herself and children, and gave them a power of attor- ney to recover it. The legal estate in the freeholds re- mained in A. *It was held that, as in order to recover the [*430] Difference money the legal estate must be reconveyed, and as there between eases was no means of obtaining a reconveyance of the legal ^ nere owner estate from the settlor to the owner, the settlement was es t a t e incomplete, and could not be enforced. controls, and where he has It will be observed that the class of cases in which ie£,al estate - the donor is merely the equitable owner, but can con- trol the legal estate (though vested in trustees) so as to vest it in new trustees for his xlonees, differs from the class of cases in which the doner has himself the legal estate as well as the equitable interest in one inportant respect. In the former class of cases of imperfect legal trans- Trae tes ^ the fer, the property is already the subject of a trust, and intention of the Court can therefore deal with the beneficial interest settlor at the as merely an equitable interest — subject always to this time - qualification, that the Court will not for a mere volun- teer alter the intended mode of assignment (u). The test in all such cases seems to be, what was the real intention of the settlor at the time he executed the, voluntary settlement? Did he intend to make a legal transfer, or did he merely intend an equitable assign- ment, or did he mean a declaration of trust? (v). Whether the property is to be transferred direct to the volunteers, or to trustees for them, in each case the legal title must be validly transferred, according to the nature of the property, so as to fully carry out the in- tention of the settlor ; and if that has not been fully U) 28 Beav. 96. (u) Ante, pp. 406, 407, 415 ; post, p. 439. («) Ante, p. 404. (5523)' 438 GIFT OF LEGAL carried out, the ineffectual transfer will not be upheld by the Court as a declaration of trust (w). Resulting trust to settlor. But even where the property has been completely transferred to, and well vested in, the trustees, a further question remains. Has a binding trust of the whole or any part of the property been declared sufficient to rebut the resulting trust in favour of the donor? (x) So the absence of words of limitation in a voluntary [ *431J settlement * of real estate has been held to create a resulting trust in favour of the settlor (y). But a memorandum by B. on the title deeds of an es- tate, '"I give Blackacre to A," and a subsequent con- veyance by B. of that estate to A. by a general descrip- tion, if B. has no intention to change the previous gift, would pass the property to A., and not create a result- ing trust in favour of B. (z). So a voluntary settle- ment of property duly assigned to trustees upon trusts which could arise only on an event which could never occur creates a resulting trust in favour of the set- tlor (a). Locus pceni- tentise. And where a person desiring to settle stock caused it to be transferred to trustees, and approved a draft dec- laration of trust, it was held that there was a locus pcenitentise, and that the trusts did not attach, unless the draft had been formally authorized before the trans- fer to the trustees (b). Does trans- Closely connected with this is the question whether feree take the transferee takes the property I eneficially, or takes beneficiary or it impressed with a trust (c). on trust? (w) Tate v. Hilbert, 4 Bro. C. C. 286 ; Patterson v. Williams, LI. & G. (t. PL) 95; Hewitt v. Kaye, L. E. 6Eq.l98, Wealev. Ollive, 17 Beav. 252 ; Hogarth v. Phillips, 4 Drew. 360 ; In re Shield, 53 L. T. (N.S.) 5. See cases infra. (x) See Lewin, Tr. 8th eel ch. 9 ; Elphinstone, Deeds, ch. 20. \y) Middleion\. Barker, 29 L. T. (N.S) 643. (z) Strong v. Bird, L. R. 18 Eq. 318. (a) Pawmn v. Brown, 13 Ch. D. 202 ; ante, p. 334. (b) Be Sykes' Trusts, 2 J. & H. 415 ; Coninghtim v. Plunkett, 2 Y. & C. C. C. 245; and see Muggeridge v. Stanton, 7 W. R. 638; Penfold v. Mould, L. R. 4 Eq. 562. See also Roberts v. Roberts, 15 W. R. 117; and James v. James, 19 L. T. (N.S.) 809. (e) Lewin, Tr. 8th ed. ch. 9: and see, as to precatory trusts under wills, Lloyd v. CImne, 2 Giff. 441; Jones v. Badley, L. R. 3 Ch. 362; M'Cormielc v. Grogan, L. R. 4 H. L. 82; In re Boyes, 26 Ch. D. 531; Jarman, 4th ed. 388; Theobald, 3rd ed. 354 et seq. (5524) AND EQUITABLE INTEREST. 439 This question was carefully considered by Sir G. Jes- strong v. sel, M.R., in Strong v. Bird (d). v Bird. The facts in that case were as follows: — A. borrowed £1100 from his stepmother, then living in bis house, and paying him £212 10s. each quarter for her main- tenance, on an agreement to repay it by a deduction of £100 from each quarter's payment. In pursuance of this agreement £100 was, for each of the first two quar- terly payments after the agreement, deducted by A.'s stepmother. After this, according to the evidence of A. and his wife, corroborated by memoranda in the handwriting of his * stepmother on the counter- [* 432] foils of the cheques drawn by her. she refused to make further deductions; and henceforth up to the time of her death, which occurred more than nine quarters afterwards, she paid A. the full quarterly sum. By her will she appointed A. her sole executor, but made no disposition of her residuary personal estate. The question was, whether the sum of £900 was a gift to A., or whether that sum was due from him to the estate and there was a trust of it in favour of his step- mother's next of kin. Sir Gr. Jessel, M.E., said the law required that, in a case where the thing which is subject of donation is transferable or releasable at law, the legal transfer or release should take place; and that till that change had taken place the gift was not perfect. The donor by her will had appointed the alleged donee executor. After her death he proved the will, and the legal effect of that was to release the debt in law, and therefore the condi- tion required — namely, that the release should be per- fect at law — was complied with by the testatrix makiDg him executor. It was not necessary that the legal change should knowingly be made by the donor with a view to carry out the gift. It might be made for another pur- pose; but if the gift was clear, and there was to be no re- call of the gift, and no intention to recall it, so that the person who executed the legal instrument did not in- tend to invest the person taking upon himself the legal ownership with any other character, there was no rea- son why the legal instrument should not have its legal effect. The debtor would be liable in a Court of equity, Continuing unless he could shew some reason for not being made lntentlon t0 ° (rivf» (d) L. E. 18 Eq. 315; and see Bottle v. Knocker, 46 L. J. (N.S.) Ch. 159. (5525) give. 440 GIFT OF LEGAL liable. In this case there was proved a continuing in- tention to give. There being the continuing intention to give, and there being a legal act which transferred the ownership or released the obligation — for it was the same thing — the transaction was perfected, and the debtor did not require the aid of a Court of equity to carry it out, or make it complete. So in Standing v. Bowring (e), where A. transferred stock into the joint names of herself and B., and re- [* 433J ceived the dividends thereon, * but did not in- form B. of this transfer, it was held, upon an applica- tion by A., two years afterwards, for a retransfer of the stock into her sole name, that as upon the evidence A. appeared to have made this transfer for the express purpose of benefiting B., and with the intention that B. should have the stock absolutely if he survived her, the Court could not compel a retransfer by B. The general rule is that a complete transfer of prop- erty by a voluntary donor, which is effectually vested in trustees for his donees, is irrevocable (/). To this rule the following class of cases forms an im- portant exception: — Assignments It has been established by a series of decisions that to trustees for a legal assignment or transfer by a debtor of his prop- payment of er t;y to trustees on trust for the payment of his debts, " ebts - without the knowledge or concurrence of his creditors, is revocable by him (g). The principle upon which these decisions proceed is that such a deed is to be construed as a mandate by the debtor to the trustees; it does not create any equitable or legal right in favour of a particular creditor; of it- self it does not create a trust in favour of all and every or any of the creditors (h). So where the Crown by warrant " grants " booty of war to an officer of State "in trust" to distribute among certain persons found to be entitled thereto, such warrant does not operate as (e) 27 Ch. D. 341, S. C. 31 Ch. D. 282; and see Fowkes v. Pas- eoe, L. R. 10 Ch. 343. (/) Ante, p. 405; post, pt. v. eh. iv. (g) Walwyn v. Coults, 3 Mer. 707, S. C. 3 Sim. 14; Garrard v. Lord Lauderdale, 3 Sini. 1, S. C. 2 Russ. & My. 451; Acton v. Woodgate, 2 My. & K. 495; Hcnriques v. Bensusan, 20 W. R. 350; Glegg v. Bees, L. R. 7 Ch. 71; Johns v. James, 8 Ch. D. 744. (h) Johns v. James, 8 Cli. D. 749, 750, per James, L.J. (5526) AND EQUITABLE INTEREST. 441. a transfer of property or create a trust; it merely makes that officer of State the agent of the Crown to distribute the fund (i). It is merely a direction to the trustees as to how they shall deal with the estate for the benefit of the owner, and, so long as the creditors have not exe- cuted the deed or been made aware of and assented to it, the owner may revoke, alter, or modify the trusts at his own pleasure, or call for a retransfer of the property (k). * The distinction between trusts for the [* 434 ] Distinction benefit of creditors and trusts for the benefit of mere between donees was clearly pointed out by Sir G. J. Turner, L. J., el . a ]] y au( j in Smith v. Hurst (I), as follows: — trusts to pay debts. "In cases of trusts for the benefit of particular per- sons the party creating the trust can have no other ob- ject than to benefit the persons in whose favour the trust is created, and, the trust being well created, the property in equity belongs to the cestuis que trust as much as it would belong to them' at law if the legal in- terest had been transferred to them; but in cases of deeds purporting to be executed for the benefit of cred- itors, and to which no creditor is a patty, the motive of the party executing the deed may have been either to benefit his creditors or io promote his own convenience; and the Court therefore has to examine into the circum- stances for the purpose of ascertaining what was the true purpose of the deed; and this examination does not stop with the deed itself, but must be carried on to what has subsequently occurred, because the party who has created the trust may, by his own conduct, or by the obligations which 'he has permitted his trustee to con- tract, have created an equity against himself " (m). In such trusts the settlor is the only cestui que trust (n), and therefore may do what he likes with the fund (o). The deed operates merely as a power to the trustees (p), so that the revocatory power of the donor (j) Kinloch v. Secretary of State for India in Council, 15 Ch. D.l. (k) Smith v. Burst, 10 Hare, 30; and see Lewin, Tr. 8th ed. ch. 20, s. 2; notes to Ellison v. Ellison, 1 Wh. &Tu. L. C. 6th ed. 303 et seq. (?) 10 Hare, 30. (m) See also as to the distinction, per Sir E. Sugden in Sim- monds v. Palles, 2 J. & Lat. 489, 504; Johns v. James, 8 Ch. D. 749, 750. (n) Bill v. Cureton, 2 My. & K. 503, 511, et supra. (o) Hogarth v. Phillipps, 28, L. J. (N.S.) Ch. 195. [p) Smith v. Keating, 6 C. B. 136; Johns v. James, 8 Ch. D. 749: (5527) 442 ASSIGNMENTS TO Rights of creditors under such deeds. When deed becomes ir- revocable. extends not only to varying the trusts (q), but it is like putting money into the hands of an agent for a speeail purpose; the money and authority can be recalled at pleasure until they have been acted on (r). As such a deed is regarded merely as an arrangement for the convenience of the assignor and assignee, the assignee undertaking the agency of the affairs of the [ * 435 ] assignor, it follows upon principle * that, in such a case, no creditor can take advantage of the deed unless it has been communicated to him (s). So, until such communication, the deed will not be enforced at the suit of creditors claiming under it (t), or against the personal representatives of the debtor after his death (u), or as against the trustees (v), much less against creditors prejudiced by it (w). • From the time the deed has been communicated to a creditor, a valid trust is created in his favour, and the relation between the debtor and the trustee ceases to be that of mere principal and agent. Such communi- catioa may be proved by the creditor having executed the deed (x), by his having acted upon the faith of it (y), or been a party and privy to it (z), and of course by its contents having been communicated to him (a). only. Deed may be The creditor to whom the communication is made irrevocable alone derives any right under the deed from that fact; as to some j^ d oes no t enure for the benefit of any other person or persons to whom no such communication has been made (b). (q) This is all that Lord Eldon decided in Walwyn v. Coutls, 3 Mer. 707, and Sir J. Leach in Acton v. Woodgate, 2 My. & K. 492. (r) Smith v. Hurst, 10 Hare, at p. 47. (s) Synnot v. Simpson, 5 H. L. C. 121 ; Glegg v. Bees, L. E. 7 Ch. 71 ; Johns v. James, 8 Ch. D. 744. (t) La louche v. Earl of Lucan, 7 CI. & F. 772. (u) Garrard v. Lauderdale, 3 Sim. 1 ; Be Sander's Trusts, 47 L. J. (N.S.) Ch. 667. (v) Wilding v. Richards, 1 Coll. 655. ho) Smith v. Hurst, 10 Hare, 30. (a;) Glegg v. Sees, L. R. 7 Ch. 71; Johns v. James, 8 Ch. D. 750. (p) In re Baber's Trusts, L. R. 10 Eq. 554; Johns v. James, 8 Ch. D. 750. (z) Mackinnonv. Stewart, 1 Sim. (N.S. ) 89; Field v. Donouqhmore, 1 Dru. & War. 227; Walwyn v. Coutts, 3 Mer. 707, S. C. 3 Sim. 14; Garrard v. Lord Lauderdale, 3 Sim. 1, S. C. 2 Russ. & My. 451. (a) Harland v. Binlcs, 15 Q. B. 713; Johns v. James, 8 Ch. D. 750. (6) Griffith v. Bicketts, 7 Hare, 307; Johns v. James, 8 Ch. D. 750. (5528) TRUSTEES TO PAY DEBTS. 443 If the debtor transfers his property to a creditor as trustee, it seems that, unless the trustee dissents, the deed is, as to that creditor only, irrevocable (c). But the trust cannot be revoked by the settlor so as to defeat or interfere with any act of the trustee in car- rying out the trust before its revocation (d). So, too, the assignee may in execution of the trusts take steps as against third parties (e), though not against the assignor, so long as the trust remains revocable. *Of course, the fact that the trusts have [* 436] been acted upon, or at least communicated to the cred- itors, will not be enough if the trusts were merely in- tended to establish an agency, and to be revocable (/). This principle has never been applied to any cases Principle not other than arrangements for the payment of creditors, applied to Thus it has never been applied as between the settlor. g° a ^ s ° f g^g es and persons who are purely the objects of his bounty; the trustees under a voluntary trust have never been regarded as standing in the position of agents of the debtor (g). Such a deed, however, whether it is communicated to s uc h deed an the creditors or not, is an act of bankruptcy, either if it act of bank- is for the benefit of the creditors generally and com- ru P te y- prises all the debtor's property (h); or under the Bankruptcy Act, 1883 (i), if it comprises only a part of his property, but is a fraudulent preference. Notwithstanding the distinction above referred to, Analogous there "re cases of imperfect gifts for the benefit of case of revo- particular persons which are treated in the same man- ca °l e trusts. ner as trusts for creditors (k), upon the ground that (c) Siggera v. Evans, 5 Ell. & B. 367; Acton v. floodgate, 3 My. & K. 495; Holson v. Thelluson, L. R. 2 Q. B. 648, 649; Be San- der's Trust, 57 L. J. (N.S.) Ch. 647; Johns v. James, 8 Ch. D. 744. (d) Wilding v. Richards, 1 Coll. 655, 659; and see Kirwan v. Richards, 5 Hare, 493. (e) Glegg v. Bees, L. R. 7 Ch. 71. (f) Cornihwaite v. Frith, 4 De G. & S. 552; and see Malcolm v. Scott, 3 Hare, 39, 46. (g) Palerson v. Murphy, 11 Hare, 90, 91; and' see Synnotv. Simpson, 5 H. L. C. 141. (7j) Briliain v. Brown, 24 L. T. (N.S.) 504; Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), ss. 4, 6; Robson, 5th ed. 154 et seq.; ante, pp. 94 et seq. («) 46 & 47 Vict. c. 52, s. 4 (1) C. (k) See also Synnot v. Simpson, 5 H. L. C. 121, 138-9; Monte- flore v. Brown, 7 H. L. C. 241, 266. (5529) 444 ASSIGNMENTS TO TRUSTEES TO PAY DEBTS. the intention of the donor was not to create a trust, but merely to make a private arrangement for his own convenience, and nothing else. In Hughes v. Stubbs (I) A. drew a cheque on her bankers, which she gave to B. with verbal directions to apply it for the benefit of C. in increasing the value of a legacy given by A.'s will to C. The bankers gave B. credit for the amount of the cheque. A. died after- wards. In a suit to administer A.'s estate it was held that as " a person not intending to give or to part with the dominion over his property may retain such domin- ion, notwithstanding he may have vested the property [ * 437] in trustees and *have declared a trust in favour of third persons" (m), the trust was revocable, that no present interest was conferred on C, and that A. did not part with any present interest in the sum in question or create any trust for the legatee (w). Same prin- . So also at law, where a sum of money wes paid by A. ciple at law. j n ^ ^ ae hands of B. for the benefit of a third person, it was held to be a countermandable gift, and that A. might recover it back by an action for money had and received so long as it remained in B.'s hands (o). (0 1 Hare, 476; and see Maguire v. Dodd, 9 Ir. Ch. Eep. 452, 457. (m) Walwyn v. Couits, 3 Sim. 14, and other eases supra. (n) See the comments on this case in Palerson v. Murphy, 11 Hare, 91-92; and see GaskeU v. Gaskell, 2 Y. & J. 502; Smith v. Warde, 15 Sim. 56; Vandenberg v. Palmer, 4 K. & J. 214, 218; Pedder v. Mosely, 31 Beav. 159; Field v. Lonsdale, 13*Beav. 78. (o) Taylor v. Lendey, 9 East, 49 ; and see Williams v. Everitt, 14 East, 582 ; Scott v. Perchor, 3 Mer. 652 ; Malcolm v. Scott, 3 Hare, 39. (5530) *CHAPTER III. [ *438 ] GIFTS OF EQUITABLE INTEREST INTER VIVOS. Cases in which the donor, whether he is in fact the Gifts of legal and equitable owner or merely the equitable owner equitable in- of the property, intends only to confer on his donees his erests alone, equitable interest in that property. This class of cases really consists of two kinds. I. Cases in which the donor is both the legal and the Donor the equitable owner of the property (p). legal owner, con verts him- In these cases the donor can only effect his object in self into a one way. He must declare himself a trustee of that property for his donees ; so that while he retains the legal interest in the property, he holds the beneficial interest in it, from the time of that declaration, intrust for the objects of his bounty. As soon as he has declared himself trustee of the property for his donees, nothing more need be done by him. The gift is complete, and it will be enforced against him or his representatives, and all persons claiming under him (q), except, of course, subsequent purchasers from him where the property given is within 27 Eliz. c. 4 (r). Similarly, if the donor has only an equitable interest Same prin- (s), or if his property is incapable of legal transfer (t), ciple applies • to all kindsof (p) Post, pp. 445 et seq. property. (q) Ellison v. Ellison, 6 Ves. 656, 662 ; Ex parte Pye, 18 Ves. 140 ; Drosier v. Brereton, 15 Beav. 221 ; Searle v. Law, 15 Sim. 95; Bridge v. Bridge, 16 Beav. 321 ; WFaddtn v. Jenkyns, 1 Hare, 460-1 ; Meek v. Kettlewell, 1 Hare, 470-1 , S. C. 1 Ph. 342 ; Steele v. Waller, 28 Beav. 466 ; Gray v. Gray, 2 Sim. (N.S.) 273 ; Wilcocks v. Hannyngton, 5 Ir. Ch. Rep. 38 ; Wheatiey v. Purr, 1 Keen, 551 ; post, pt. v. eh. iv. (r) Ante, pp. 187 et seq. (s) Meek v. Kettlewell, 1 Hare, 470-1, S. C. 1 Ph. 342 ; Palerson v. Murphy, 11 Hare, 88 ; Richardson v. Richardson, L. R. 3 Eq. 686 ; Parker v. Stones, 38 L. J. (N.S.) Ch. 46. (t) Vernon v. Yalden, MS. 1722-3, post, Appendix No. VI.; Meek v. Kettlewell, 1 Hare, 474-6, S. C. 1 Ph. 342 ; Collinson v. Patrick, 2 Keen, 123 ; post, pp. 453 et seq. 34 STAT. OF eliz. (5531) 446 GIFTS OF EQUITABLE INTEREST [ *439 ] lie can convert *himself into a trustee by merely declaring himself a trustee of that interest or property for his donees (w) ; and it has been decided that a man may convert himself into a trustee of the title deeds of land held by him as security for a debt, the debtor being at the same time made a trustee of the debt for the same cestuis que trust (v). "What is a The difficulty in this class of cases is to determine sufficient de- what constitutes a sufficient declaration of trust by the elaration of (J nor. trust. The following well-established principle must be carefully borne in mind in the consideration of the various cases in which it has been held that the donor had or had not declared himself a trustee for his donees. Court does The Court will not in the case of voluntary instru- not perfect an ments, unless the donor be clearly proved to have in- imperfect tended it (w), uphold a settlement upon tbe ground gllt ' that the donor has declared himself trustee, if the donor intended to transfer that property to his donees. The Court will not perfect an imperfect gift by ren- dering it effectual in a way the donor did not contem- plate (x). Question merely whether donor has taken effec- tual steps. What decla- ration of trust uiust be. The question, therefore, becomes narrowed to. this one. Assuming that the donor intended to convert himself into a trustee for his donees, has he taken effectual steps for this purpose. The one indispensable condition for a valid declara- tion of trust by the donor has been clearly laid down by Bacon, V C, in Warriner v. Rogers (y), followed by SirG. Jessel, M.R., in Richards v. Delbridge (z), to be this: The donor must so deal with his property at the time he converts himself into a trustee as entirely to deprive («) See Lewin, Trusts, Sth ed. 68. (v) Parker v. Sto?ies, 38 L. J. (N.S.) Ch. 46. («;) Milro/) v. Lord, 4 D. F. & J. 264 ; Richards v. Delbridge, L. R. 18 Eq. 11 ; Lee v. Magralh, 10 L. E. Ir. 45, 313 ;In re Shield. 53 L. T. (N.S.) 5 ; ante, p. 404. (x) Ante, pp. 406, 407, 415 ; post, p. 445. (y) L. R. 16 Eq. 340 ; ante, p. 415 ; and see Hcariley v. Nichol- son, L. R. 19 Eq. 233. (2) L. R. 18 Eq. 11 ; ante, p. 416. (5532) WHEN COMPLETE. 447 himself of its beneficial ownership ; and he must, in some way or other amounting to a valid declaration of trust, declare that he thenceforward holds that property in trust for his donees. *The declaration itself to be effectual must be [*440 ] definite ; it must take effect from the time at which it is made, and it must be final (a). So a mere promise to give will not be supported aB a declaration of trust (b) ; nor will expressions which im- port nothing more than a determination to divide prop- erty among certain persons (c) ; nor will the expression of an intention to do something in the future (d). So a gift which is really testamentary — that is to say, where the donor has no intention of parting with the property during his life — cannot be supported on the ground that the donor meant to convert himself into a trustee (e). The acts or words which are relied upon to establish Acts or words the fact that the donor has declared himself a trustee reliecl on for his donees must admit of no other interpretation. no ol!ier pp It is not enough that they are consistent with it, or view, merely equivocal ( /). So the mere fact that the donor has regularly transmitted to the donee the dividends on the stock as they became due from the time the incom- plete gift of that stock was made to the donee is not enough (g). The following acts have been held valid declarations Valid decla- of trust : — rations of- trust. (a) Dipple v. Corles, 11 Hare, 183 ; Cotteen v. Missing, 1 Mad. 176, 185 ; HugJies v. Sttibbs, 1 Hare, 476 ; Scales v. Maude, 6 De G. M. & G. 51 ; Jones v. Lock, L. R. 1 Ch. 25 ; Maguire v. Dodd, 9 Ir. Ch. Rep. 452 ; Penfold v. Mould, L. R. 4 Eq. 562 ; Be Glover, 2 J. & H. 186 ; Forbes v. Forbes, 6 W. R. 92 ; In re Mills' Estate, 7 W. R. 372. (6) Dipple v. Corles, 11 Hare, 183. (c) Dipple v. Corles, 11 Hare, 183 ; Be Glover, 2 J. & H. 186 ; and see Forbes v. Forbes, 6 W. R. 92 ; Jn re Mills' Estate, 7 W. R. 372 ; Jones v. Lock, L. R. 1 Ch. 25 ; Lister v. Hodgson, L. R. 4 Eq. 30. (d) Bottle v. Knocker, 46 L. J. (N.S.) Ch. 159. (e) In re Joseph Patterson's Estate, 4 D. J. & S. 422 ; Warriner v. Rogers, L. R. 16 Eq., per Bacon, V.C., 340 ; and see InreShield, 53 L. T. (N.S.) 5. (/) Dipple v. Corles, 11 Hare, 185, 187 ; Heartley v. Nicholson, L. R. 19 Eq. 242. (g) Milroy v. Lord, 4 D. F. & J. 264 ; Moore v. Moore, L. R. 18 Eq. 474 ; Heartley v. Nicholson, L. R. 19 Eq. 233. (5533) 448 GIFTS OP EQUITABLE INTEREST The execution of a power of attorney, after treating the property as subject to the trust (h), entries in the books of the firm of which the donor was a partner (i), a letter written to co-trustees directing payment of fu- [ *441 ] ture dividends (fc), the donor *having a sum of money transferred by her bankers to an account in the joint names of the donees and herself as trustee for them (I), mixing another fund with one of which trusts had been declared (m), and treating the aggregate fund as neld on trust (n), investing a further sum in the names of tbe trustees of a settlement without inform- ing them (o), letter and memorandum in diary (p), memorandum (q), letter by a debtor to his creditor (r), or promissory note (s), with payment to the trustees se- cured by deposit of title deeds, a receipt in the follow- ing form : "Received of D., for the use of A., £100, to be paid to A. at D.'s death, but interest at 4 per cent, to be paid to D." (t) ; a promissory note given by a hus- band to his wife (u) ; a memorandum indorsed on a lease, "this deed and all thereto belonging I give to E. from this time forth, with all the stock in trade " then given to B.'s mother for him (v) ; an assignment of a debenture which stood in the name of the donor in the company's books till his death (w) ; a debt secured by a promissory note payable on demand (x) ; an assign- (h) Exparte Pye, 18 Ves. 140 ; 2 Spence, Eq. Jur. 53, n. In Richardson v. Richardson, L. R. 3 Eq. 686, the mere execution of an assignment with power of attorney was held a declaration of trust ; hut vide ante, pp. 418, 419. (i) Stapleton v. Stapleton, 14 Sim. 186 ; and see Gray v. Gray, 2 Sim. (N.S.) 273. and Forbes v. Forbes, 6 W. E. 92. (k) Beniley v.- Mackay, 15 Beav. 12 ; and see Evans v. Jennings, 6 W. E. 616. !l) Whealley v. Purr, 1 Keen, 551. m) Muggeridgc, v. Stanfon, 7 W. E. 638. n) Tlwrpe v. Owen, 5 Beav. 224. o) In re Curleis' Trusts, L. E. 14 Eq. 217. (p) In re Cane's Trusts, 36 L. J. (N.S.) Ch. 744 ; but see Be Glover, 2 J. & H. 186. (q) James v. Bydder, 4 Beav. 600. (r) Woodroffe v.. Johnston, 4 Ir. Ch. Eep. 319. (s) Arthur v. Clarkson, 35 Beav. 458. it) Moore v. Darton, 4 De G. & Sm. 517. ' (u) Murray v. Gte.sc, 23 L. J. (N.S.) Ch. 126. For other in- stances, see Woodroffe v. Johnston, 4 Ir. Ch Eep. 319 ; Lloyd v. Chune, 2 Giff. 441 : Smith v. Warde, 15 Sim. 56 ; Field v. Lons- dale, 13 Beav. 78 ; Vandenberg v. Palmer, 4 K. & J. 204 ; Mackin- tosh v. Stuart, 36 Beav. 21 ; Kelly v. Walsh, 1 L. E. Ir. 275 ; Mor- gan v. Malleson, L. E. 10 Eq. 475 ; but see Warriner v. Roqers, L. E. 16 Eq. 348 ; ante, p. 415. (v) Richards v. Delbridge, L. E. 18 Eq. 11 ; ante, p 416 \w) West v. West, 9 L. E. Ir. 121. (x) Lee v. Magrath, 10 L. E. Ir. 45, 313. (5534) WHEN COMPLETE. 449 merit of a policy by deed poll by a husband to his wife attested by one witness (y) ; an order by A. to B., his debtor, to hold the amount of the debt secured by B.'s promissory note on certain specified trusts (z) ; a gift of railway stock certificates by a husband to his wife, which remained in his name, but the dividends on which he received and paid to his wife (a) ; a gift, by letters, of furniture in a house occupied by husband and wife up to his death (b) ; a memorandum for payment of £150 in the *bank after the donor's death, [ *442 ] although he always kept the memorandum (c) ; an in- vestment by A. of stock in B.'s name, with a letter from A. informing B. of the gift, afterwards destroyed at A.'s request (d) ; the transfer by deed of a debenture to three persons and a letter by the donor to his solicitor saying it was "for my niece Mrs. M. and her children " (e). 'A husband could before 1883 (/.) and of course can Husband and now constitute himself a trustee of his property for his wife. wife (g). Before 1883 he could not in law transfer property to her by way of gift. In every case, how- ever, whether before or after 1883, the same principles, it is conceived, now apply to test whether a husband has made himself a trustee for his wife as apply to test whether he has made himself a trustee for any other person (h). The consent of a married women given before com- missioners to the transfer and payment to her husband of money standing in court to her separate account, so long as the transfer remains uncompleted, is not an irre- vocable declaration of trust (i). The following acts have been held insufficient to Invalid create a declaration of trust : — declarations of trust. If a testator by will appoints property to trustees upon (y) Hayes v. Alliance Co., 8 L. R. Ir. 149. (z) In re Caplen's Estate, 45 L. J. (N.S.) Ch. 280. (a) Moore v. Moore, L. R. 18 Eq. 474. (6) In re Breton's Estate, 17 Ch. D. 416. • (c) Armstrong v. Tamperon, 1 9 W. R. 558. \d) Beecher v. Major, 12 L. J. (N.S.) 562. \e) In re Bellasis, L. R. 12 Eq. 218. (/) Baddeley v. Baddeley, 9 Ch. D. 113 ; Fox v. Bawkes, 13 Ch. D. 822 ; ante, pp. 421, 422. (g) 45 & 46 Vict. c. 75, ss. 1, 2, 5, 25. (h) In re Breton's Estate, 13 Ch. D. 416 ; Grant v. Grant, 34 Beav. 623 ; ante, pp. 421, 423. (i) Penfoldx. Mould, L. K. 4 Eq. 562. (5535) 450 GIFTS OP EQUITABLE INTEREST Notice to cestui que trust not necessary if property legally vested in donor. trusts to be afterwards declared, and subsequently de- clares those trusts by letters, such letters cannot oper- ate as a gift or settlement inter vivos ; because they are merely in furtherance of the testamentary dispositions, and if the will had been revoked, the letters must have dropped with it (k). And putting a cheque into a child's hand and saying, " I give this to baby for himself," and then taking back the cheque and expressing an intention of giving the amount of it to the child, has been held no declaration of trust of the money (I) ; nor is a document signed by the donor, addressed to his executors, stating a gift of a debenture bond requesting them on his death to [ *443 ] give the *bond to the donee, although he kept the bond aDd received the interest during his life ( to) ; and merely giving instructions to a solicitor to carry into effect a contemplated gift will not bind (ri). So an ordinary covenant in a deed by a married woman and her husband to surrender copyholds (to which she was then entitled in fee, and had a right to be admitted tenant on the rolls) to trustees upon trust for sale and investment of the proceeds upon trusts for herself and others, was held an incomplete transfer and. inconsistent with any intention to declare herself a* trustee (o). It has been doubted in some of the older cases whether, if a person voluntarily declares himself a trustee of property legally vested in himself, it is nec- essary that the trust should be disclosed to the cestuis que trust and afterwards acted on (p) ; but it is estab- lished by the cases cited above that this is not neces- sary (q). The Statute of Frauds provides (r) that all declara- (t) Johnson v. Ball, 5 De G. & Sm. 85 ; and see In re Fleetwood, 15 Ch. D. 604. (0 Jones v. Lock, L. E. 1 Ch. 25. (m) In re Shield, 53 L. T. (N.S.) 5. (n) In re Mills' Estates, 7 W. R. 372 ; Gee v. Liddell, 35 Beav. 621. (o) Green v. Palerson, 32 Ch. D. 95. (p) Meek v. Kelllewell, 1 Hare, 471, S. C. 1 Ph. 342. (q) See post, pp. 451 et. seq., as to notice of equitable assign- ments ; and see Eeed\. O'Biien, 7 Beav. 32; Tate v. Leithead, Kay, 658, (r) 29 Car. 2, c. 3, s. 7. See Leman v. Wliitley, 4 Euss. 423 ; Smith v. Matthews, 3 D. F. & J. 139 ; and see Aguew, Stat. Fr. p. 420. (5536) WHEN COMPLETE. 451 tions or creations of trusts or confidences of any Trusts of lands, tenements, or liereditaments shall be manifested land, tern: and proved by some writing signed by the party who ™<^'s. 01 " is by law enabled to declare such trust, or be his last prove( j ^ y will in writing ; or else they sball be utterly void writing. and of none effect. By section 8, all declarations or creations of lands, tenements, or hereditaments which arise or are trans- ferred or extinguished by implication or operation of law are exempted from this statute. The beneficial owner is the only person who is by law enabled to declare the trust (s). To comply with this statute, not only must the existence of the trust be manifested or proved by writing signed by the beneficial owner, but it must be similarly manifested or proved what the trust is (t). *The declaration itself need not be in writ- [*444] ing ; it is enough if it is proved by some subsequent writing (w). A trust of personal property may be validly declared Parol decla- or created by parol, whether the donor declares himself rations of or some other person a trustee of the property (v). trust ° , . -ti T)6rS0D£ll Vague conversations, however, cannot be allowed to p rop erty. have that effect (w). In Paterson v. Murphy (x), Lord Hatherley (then Sir W. P. Wood, V.C.) said : " It may be doubtful whether the Court would hold that a vol- untary trust could be created by merely oral expression ; so much might depend on a correct report of the words. If, as part of a verbal communication by a supposed (s) Tierney v. Wood, 19 Beav. 330 ; Kronlieim v. Johnson, 7 Ch. D. 60 ; post, p. 446. (I) Smith v. Matthews, 3 D. F. & J. 151, 152. (it) Foster v. Hale, 3 Ves. 096. As to whether partnership prop- erty is within the section, see Dale v. Hamilton, 5 Hare, 369, S. C. 2 Ph. 266. (v) Nab v. Nab, 10 Mod. 404 ; Fordyce v. Willis, 3 Bro. C. C. 577, and note ; Bayley v. Boulcott, 4 Buss. 345 ; Benbow v. Town- send, 1 My. &K. 506; M'Fadden v. Jenkyns, 1 Hare, 458, 461, S. C. 1 Ph. 153-157 ; Hugltes v. Siu66s;lHare, 476 ; Lucas v. Lucas, 1 Atk, 270, West (t. H. ) 456 ; Lister v. Hodson, L. B. 4 Eq. 30 ; Parker v. Stones, 38 L. J. (N.S) Ch. 46 ; Roberts v. Roberts, 15 W. E. 117 ; Milroy v. Lord, 4 D. F. & J. 274 ; Jones v. Lock, L. E. 1 Ch. 25 ; Makeown v. Ardagh, 10 I. E. Eq. 445. (w) Jones v. Lock, L. E. 1 Ch. 25. (x) 11 Hare, 88, 91-92 : and see Dipple v. Corles, 11 Hare, 184-5. (5537) 452 GIFTS OF EQUITABLE INTEREST settlor, he bad used words of this sort : ' I propose to do so and so,' or, 'It is my present intention' to do it, the effect might be to shew that he had not at the time absolutely determined to create the trust ; and in such a case I can well imagine that the Court would require extremely strong evidence before it would say that an irrevocable trust was created" (y). But, on the other hand, if the parol declaration is clearly proved, and there is no doubt about it, " the Court will give effect to the trust as readily as if it were in writing" (z). An ante-nuptial agreement between an intended wife and her husband will operate as a declaration of trust of the fee simple of her real estate for her separate use only if it is in writing and signed by her as well as by her husband (a). To establish a valid declaration of trust by the donor, so as to rebut the presumption of a resulting trust, tbe evidence in favour of that declaration of trust must be [ *445] clear and distinct. It is not *enough that the evidence should merely support the trust ; it must be capable of no other interpretation. The question depends on all the circumstances of each particular case. The burden of proof, of course, lies on those who seek to establish the trust ; and although their evidence is that of interested parties, yet it is not inad- missible, but must be weighed, having regard to that fact, like all other evidence in the case (b). Donormerely II. Cases in which the donor is merely the equitable equitable owner of the property, and intends to make the gift owner. without affecting the legal interest. There are two ways in which a donor may carry out his purpose : 1. He may assign his equitable interest direct to his donees. Evidence to establish a trust. 2. He may execute a declaration of trust of his equi- ty) See Hughes v. Stubbs, 1 Hare, 476 ; Scales v. Maude, 6 De G. M. & G. 51 and Maguire v. Dodd, 9 Ir. Ch. Rep. 452, 455-6. (z) Per Lord Eomilly in Pecklmm v. Taylor, 31 Beav. 254 ; Jones v. Lock, h. R. 1 Ch. 28. (a) Dye v. Dye, 13 Q. B. D. 147. (b) Roberts v. Roberts, 15 W. R. 117 ; In re Curteis' Trust, L. R. 14 Eq. 217 ; Seartley v. Nicholson, L. R. 19 Eq. 242, 243 ante. v. 440. > v (5538) , - WHEN COMPLETE. 453 table interest in favour of his donees. The trustees for his donees may be, either the existing trustees for the donor, or new trustees selected by him (c). Of course, when once the property has been assigned, or a trust has been actually executed, the assignment cannot be defeated nor the trust revoked by any acci- dent which subsequently occurs — by, for instance, a transfer of the fund into court. The duty which is once fixed is not to be changed by any circumstance which afterwards occurs (d). "Whichever mode the donor intends to use, he must by that mode fully complete his gift (e) ; for the Court will not make his gift effectual by a way he did not in- tend (/). It is clear that where the owner of a vested equitable Donor's estate has voluntarily directed his trustee to pay over trustee a the dividends or the property to his nominee, and this j™ j 6 or direction has been accepted * and acted on [ * 446 ] by the trustee, there is a valid executed trust created which he cannot revoke (gr). In Ellison v. Ellison (h), "Wren and Ellison, partners Declaration in a colliery, took a conveyance of the property, in the of trust name of Wren. Wren executed a deed declaring that he held Ellison's portion in trust for Ellison. Ellison then executed a deed assigning Lis interest in a portion of his share to Wren, on certain trusts for himself for life and for other persons after his decease. Lord El- don held this a valid declaration of trust, saying (i) : , (c) Fowkes v. Pascoe, L. E. 10 Ch. 343 ; Marshal v. Crutwell, L. E. 20 Eq. 328 ; post, pp. 446 et seq. ( avtere legally assignable (q). equity. 1 "* On the one hand, it has been held that, inasmuch as such an assignment has no operation at law, it must be regarded as a mere contract or agreement to assign. Such a contract or agreement will be enforced under and subject' to the same conditions as any other contract or agreement. That is to say, the Couri will enforce it only when the contract or agreement i§ supported by a valuable consideration (r). A mere voluntary assign- ment of such an interest is therefore, on this view, altogether inoperative. The leading case which was decided on this principle Meek v. is that of Meek v. Kettlewell (s). ' Kettlewell. There Mrs. K. had an expectant interest as nest of kin in a sum of money vested in the trustees of her husband's will, to which she would, as next of kin, be- come entitled if her daughter should die in her lifetime without issue. During her daughter's * life [ * 448] Mrs. K. by a voluntary deed assigned this expectant interest to M., in trust, as to part of it for herself, and as to the residue for M. absolutely. The deed contained the usual power to M., upon the death of the daughter without issue, to demand the money from the trustees, and to give an effectual receipt for it. Notice of the assigment was not given to the trustees. Sir J. Wigram, V.C., and Lord Lyndhurst on appeal, held the assignment in legal form of an equitable inter- est invalid. But the Vice-Chancellor expressly limited the scope (q) Grey v. Kentish, 1 Atk. 280; Bates v. Dandy, 2 Atk. 207-8; Theobald v. Duffny, 9 Mod. 102; Ohandos v. Talbot, 2 P. Wms. 608; Meek v. Kettlewell, 1 Hare, 464, S. C. 1 Ph. 342 ; Richardson v. Biclmrdson, L. E. 3 Eq. 693; ante, pp. 411, 412; post, pp. 453, 457. (c) Wright v. Wriqht, 1 Ves. 409 ; Meek v. Kettlewell, 1 Hare, 464, S. C. 1 Ph. 342/345-7 ; Colman v. Sarrel, 3 Bro. C. C. 12, 1 Ves. Jun. 50 ; Ward v. Audland, 8 Sim. 571, 8 Beav. 201 ; Beat- son v. Beatson, 12 Sim. 281 ; Sewell v. Moxsy, 2 Sim. (N.S.) 189 ; Scales v. Maude, 6 De G. M. & G. 43; Richards v. Delbridge, L. R. 18 Eq. 15. And see Holloway v. Headington, 8 Sim. 324 ; Ed- wards v. Jones, 7 Sim. 325, S. C. 1 My. & Cr. 226. (s) 1 Hare, 464, S. C. 1 Ph. 342. (5541) 456 GIFTS OF EQUITABLE INTEREST Sloane v. Cadogan. of his judgment. He said: "I decide only that a vol- untary assignment of a mere expectancy, not communi- cated to those in whom the legal interest is, does not create a trust in equity within the principle of the cases relied upon by the plaintiff " (if). And Lord Lyndhurst in his judgment distinguished this case from that of Sloane ->v. Cadogan (w), upon the ground that this was the assignment of a mere expectancy that con- veyed no estate or interest to the assignee, while in Sloane v. Gadogan (u) the assignment was of a vested interest (v). On the other hand, in the case of Sloane v. Cadogan (u) it has been held that an equitable interest in a reversionary sum of stock may be assigned in equity. In that case Mr. W. Cadogan had an equitable rever- sionary interest in a fund vested in trustees. He as- signed this by deed to other trustees upon trusts for volunteers. Kekeimch v. Sir "W. Grant, M.R., held that the assignment created a valid trust. He said: "As against the party himself and his representatives, a voluntary settlement is bind- ing. The Court will not interfere to give perfection to the instrument, but you may constitute one a trustee for a volunteer. Here the fund was vested in trustees; Mr. W. Cadogan had an equitable reversionary interest in that fund, and he has assigned it to certain trustees; and then the first trustees are trustees for his assigns, and they may come here; for when the trust is created [ * 449] *no consideration is essential, and the Court will execute it, though voluntary." In the leading case of Kekeimch v. Manning (tv) the earlier authorities were all carefully reviewed, and Sloane v. Cadogan (x) followed. In that case a lady was absolutely entitled in re- mainder, subject to her mother's life interest, to a sum of stock standing in the joint names of herself and her mother. On her marriage she assigned her interest in this stock to other trustees, upon certain trusts, and in (t) Meek v. Ketilewell, 1 Hare, 476, S. C.T~Ph. 342, commented on in Penfold v. Mould, L. E. 4 Eq. 564, 565. («) Sug. V. & P. 11th ed. app. 24, stated 2 Sim. 291. («) Meek v. Ketilewell, 1 Ph. at p. 348. (w) 1 De G. M. & G. 176. (x) Sug. V. & P. 11th and previous eds. app. No. 24. (5542) WHEN COMPLETE. 457 default of issue of tho marriage, upon trust for her niece. There was no issue of the marriage. The stock was not transferred to the new trustees. The mother had notice of this settlement. Lord Justice Knight Bruce upheld the voluntary trust in favour of the neice (treating the question as if she were not within the consideration of the marriage), fol- lowing the principles established in Ellison v. Ellison (y), Sloane v. Cadogan (x), Fortescue v. Barnett (z), Wheat- ley v. Purr (a), and Blakely v. Brady (6). His lordship laid down the law as follows: "It is, on legal and equitable principles, we apprehend clear that a person sui juris, acting freely, fairly, and with sufficient knowledge, ought to have and has it in his power to, make, in a binding and effectual inanDer, a voluntary gift of any part of his property, whether capable or incapable of manual delivery, whether in possession or reversionary, and howsoever circum- stanced." And he illustrated this in the following way: — " Suppose stock or money to be legally vested in A., as a trustee for B., for life, and subject to B.'s life interest for C. absolutely; surely it must be competent to C, in B's lifetime, with or without the consent of A., to make an effectual gift of C.'s interest to D., by way of mere bounty, leaving the legal interest and legal title unchanged and untouched. Surely it would not be consistent with *natural equity, or with [ * 450 ] reason or expediency, to hold the contrary, C. being sui juris, and acting freely, fairly, and with sufficient advice and knowledge. If so, can C. do this better or more effectually than by executing an assignment to D. ? " This case was followed in Voyle v. Hughes (c) by Sir y yi e v . J. Stuart, V.C , who, in an elaborate judgment, shewed Hughes. the older cases (d) not to be opposed to the doctrine !y) 6 Ves. 656, 1 Wh. & Tu. L. C. 6th ed. 291. x) Sug. V. & P. 11th and previous eds. No. 24. z) 3 My. & K. 36; post, p. 454. a) 1 Keen. 551. 6) 2 Dr. & Wal. 311; post, p. 454. e) 2 Sm. & Giff. 18. (d) See Carteret v. Paschal, 3 P. Wins. 197, 208; Thomasv. Free- man, 2 Vera. 563; Crouch v. Martin, 2 Vera. 595; Sloane v. Cado- gan, Sug. V. & P. 11th and previous eds. app. No. 24; Fortescue v. Barnett, 3 My. & K. 36; and see Hawkyns v. Obyn, 2 Atk. 549; Wind v. Jekyl, 1 P. Wms. 574, and note; Jewson v. Moulson, 2 Atk. 421; Theobalds v. Duffoy, 9 Mod. 102; Eigden v. Watkinson, post, Appendix No. X. (5543) 458 GIFTS OF EQUITABLE INTEREST that equitable reversionary interests in personalty are assignable in equity. In that case A. B., who had a vested interest in cer- tain stock standing in the names of the trustees of a settlement, subject to a life estate, by a voluntary deed assigned that interest to C. D. absolutely, and gave C. D. a power of attorney to receive the stock from the trustees. Notice was given to the trustees. Sir J. Stuart, V.C., upheld the equitable assignment as a per- fect instrument, and, as such, valid in equity. Lanibev. So in Lambe v. Orton (e) a letter was written by a Orion. cestui que trust to his trustee, directing him to pay the share of residuary personality to which he was benefi- cially entitled to three specified persons. The trustee acted on the letter, and paid part of the money to one of the persons named in the letter; on the writer's death it was held that the letter operated as an assign- ment of his whole share, whether immediately payable or in reversion. So in Penfold v. Mould (/), Lord Hatherley (then Sir "W. P. Wood, V.G), commenting on Meek v. Kettle- ivell (g), said that " that decision has been, in effect, overruled, and it is now held that any instrument may be a sufficient declaration of trust ; no form being necessary, the only material question being, ' Did the grantor, or did he not, mean at once to pass the prop- erty?'" Nature of the These decisions, it is conceived, establish that the interest or of nature of the interest in the property the subject of the the property [ * 45 1 ] assignment is * immaterial. That is to say, immatena . ^g subject-matter of the assignment may be a vested or a contingent interest (h). It may also be a mere ex- pectancy, unless Meeky. Kettlewell (g), which has never been expressly overruled, should be held still to apply, upon the ground that an assignment by a person who has no actual interest ought to be regarded rather as an agreement to assign than as an actual assignment. The interest itself, whatever may be its nature, may be an interest in either real or personal property (k). (e) 1 Dr. & Sm. 125; and see In re King, 14 Ch. D. 179: post p. 455. (f) L. R. 4 Eq. 565. (g) 1 Hare, 464, S. C. 1 Ph, 342. (h) Ante, pp. 447 et seq. (k) Ante, pp. 407 et seq. (5544) WHEN COMPLETE. 459 The test which will now be applied in every case is, Test of valid whether or not the assignor has ut the time of the as assignment, signment made as complete a transfer of his interest as he was capable of effecting; and if he has, such an as- signment is perfectly good and valid as between him and his assignee (I). It has been decided whether, in cases of voluntary whether equitable assignments or declarations of trust, the gift notice to is complete until notice of it has been given to the trustees and trustees, and the new trust accepted and acted upon by acc ^P tanC0 them; and also to the assignees or cestuis que trust (m). necessary in equitable As between the donor and the donee, all that is now assignments, essential to make the transaction perfectly valid ap- pears to be for the donor to have done all that is ne- cessary to complete the transfer he has made or the trust he has created. At the time the transfer is made, or the trust created, it is enough if the transaction is as complete as it was then in the donor's power to make it (n). That is to say, if the title of the donee is so far com- plete that the Court is not called upon to act against the donor, it will assist the donee in obtaining the property from any person who would be treated as a trustee for him (o). So as between the assignor and assignee, or as against a subsequent voluntary assignee, who stands in the same position as * the assignor, giving notice [* 452] of the assignment to the trustee or company or debtor is wholly immaterial (p). It is only to perfect the title of the donee as against Notice to third parties that the question of notice to the trustees trustee only in whose hands the property is becomes material. It Necessary as is therefore th9 duty of the donee or of his trustees, party. and not of the donor, to give such notice. (1) In re Walliampton Estate, 26 Ch. D. 395; Harding v. Hard- ing, 17 Q. B. D. 442. (m) Meek v. Keltlewell, 1 Hare, 471, S. C. 1 Ph. 342; Bycrofl v. Christy, 3 Beav. 238-241; Bridge v. Bridge, 16 Beav. 322. (n) Donaldson v. Donaldson, Kay, 711, 719; In re Wdlhampton Estate, 26 Ch. D. 391 ; ante, p. 445. (o) Donaldson v. Donaldson, Kay, 718; Beed v. Seed, 7 Beav. 32. (p) Justice v. Wynne, 12 Ir. Ch. Rep. 289; and see Byall v. Bowles, 2 Wh. & Tu. L. C. 6th ed. 848. (5545) 460 GIFTS OF EQUITABLE INTEREST So in Fortescue v. Barnett (q), where a donor as- signed by deed a policy of assurance on his life to trustees upon certain trusts, and gave no notice to the assurance office, it was held that ths donor had com- pleted the title of the trustees, and that it was their duty to have given notice to the office. So in In re King (r) it was held by Hall, V.C., fol- lowing Fortescue v. Barnett (q) and Pearson, v. Ami- cable Assurance Office (s), that an assignment by let- ter of policies of assurance to trustees on certain trusts of which no notice was given to the assurance offices was valid; and that it was the business of the trustees to give the notice. Of course, until the trustees in whose hands the prop- erty is have received notice, whether from the donee or from his trustees,they may safely transfer the property to the original cestui que trust without incurring any lia- bility for so doing either to the donee or to his trustees. The donee and his trustees omit to give such notice at their peril (t). But such notice will not affect the rights of volunteers inter se (u). Noticeto and I* ' s immaterial to the validity of the trust whether acceptance of it has been communicated to, and accepted by, the trus- trust by, tee or not; for the trustee cannot, by refusing to accept trustee not th trusts defeat the assignment, necessary to ° its validity. So in In re Curteis' Trusts (v), where the settlor di- rected a sum of £2000 to be invested in consols in the [* 453] names of the * trustees of his marriage settle- ment, to whom he never communicated what he had done, and received through his bank the dividends on the whole, it was held that this additional sum was thereby made subject to the trusts of the settlement. So in Jones v. Jones (to), where the trustee first ~ *fas feet, has he effectually carried it out? uaTty carried out his The recent case in Ireland of Lee v. Magrath (p) intention? illustrates this. In that case the payee of a promis- Lee v. sory note not payable to the order of the payee, not Magrath. negotiable, and not then payable, indorsed and deliv- ered it to L. There was no consideration for the note, but it was found to have been indorsed and delivered with intent to vest the beneficial interest in the money in L. The payee died before the note fell due, having bequeathed his residuary personal estate to B., one of the makers of the note, and his executor. Notice in writing was given to the makers of the indorsement after the death of the payee. It was held that although before the Irish Judica- ture Act the note was not capable of transfer by in- dorsement and delivery at law, yet under that Act the debt thereby secured was capable of being legally as- signed; and that, as the gift was ineffectual to trans- fer the legal title, it could not be supported. It is well established that a gift may be complete as Gifts perfect to part of the property comprised in it, and incomplete ln part either and invalid as to other parts (q). perty com^ (I) Dav. Prec. Conv. 4th ed. vol. 2, pp. 133, 137; 30 &31 Vict. c. 144; 31 & 32 Vict. c. 86; but see Lee v. Magrath, 10 L. B. Ir. 49. (m) 40 & 41 Vict. c. .'57, s. 28 (6). (n) 4D.F.& J. 264; ante, p. 414. (o) L. E. 18 Eq. 11; ante, p. 416. (p) 10 L. E. Ir. 45, 313. \q) Dillon v. Coppin, 4 My. & Cr. 647; Jefferys v. Jefferys, Cr. & P. 138; Bridge v. Bridge, 16 Beav. 315 ; Woodford v. Charnley, 28 Beav. 96. (5551) prised ; 466 GIFTS OF EQUITABLE INTEREST Bizzey v. In Bizzey v. I 1 light (r) a voluntary settlement was h light. [ * 458] made of *consols, mortgage debts, bank shares, and certain furniture and effects. The consols were transferred into the names of the trustees, but the bank shares remained at the settlor's death in her name, and the mortgages were not transferred to the trustees, and the deeds were retained by the settlor. Part of the mortgage debts were received by the settlor; part, after her death, by the trustees. The settlement was held valid and complete as to the consols, the • mortgage debts received by the trustees, and as to the furniture and effects, but incomplete as to the mortgage debts received by the settlor and as to the bank shares. or as to the The question which limitations, if any, in a voluntary limitations, deed, otherwise complete, will not be enforced is dealt with in the same way as if the deed had been for value (s). So a valid perfect gift may be made to one person by an instrument which also containsan incomplete gift to other persons by limitations which will not be enforced (<). Voluntary The efficacy of a deed depends upon its being sealed deed operates acd delivered by the maker of it; not on his ceasing to from date of re tain possession of it (u). its delivery. It operates from the time at which it is delivered (v). From that moment it is immaterial in whose possession the deed remains, provided that it is a complete instru- ment which effectually transfers the property com- prised in it. It therefore need not be delivered up by the person who executes it to the person for whose benefit it is in- tended, or to any person on his behalf. Nosnbse- Consequently, a settlor of a complete voluntary deed quent act ot cannot, by retaining possession of it, suspend its opera- affeetcom- tion > or tnerebv render it inoperative (w). plete (r) 3 Ch. D. 269; and see In re King 14 Ch. D. 186. voluntary Is) Dickinson v. Burrell, L. R. 1 Eq. 343; post, p. 461. deed. (t) Kekeioich v. Manning, 1 De G. M. & G. 176; Pedderv. Mose- ly, 31 Beav. 159. (u) Xenos v. Wicleliam, L. R. 2 H. L. 323, per Lord Cranworth; and see Doe d. Garnons v. Knight, 5 B. & C. 671. (v) Shep. Touch. 72 ; Browne v. Burton, 5 Dow. & Lowndes 292; and see Keith v. Pratt, 10 W. R. 296; Elph. Deeds, 119, 12o! (w) Sloane v. Cadogan, Sug. V. & P. 11th ed. app. No. 24 ; Hall v. Palmer, '3 Hare, 537; Fletcher v. Fletcher, 4 Hare, 67; Dillon v. Coppin, 4 Myl. & Cr. 660, and cases there cited; Donald- (5552) WHEN COMPLETE. 467 *Neither can the settlor prevent its operation [*459] either by mutilating the deed, as by destroying the seals (x), or altering the limitations after its execution (y,) or by burning (z) or destroying it (a), or by throwing it away with waste paper (b), or by cancelling it (c). So the executors of the settlor can be compelled to produce any voluntary deed of his which comes into their possession (d). Nor will the Court presume that a voluntary declara- tion of trust executed by the settlor and retained by him, which at his death could not be found, had been destroyed by the settlor, since it was his duty, as trus- tee and lawful custodian of the deed, to keep it (e). It may be here mentioned that probate duty is, un- Probate duty der the Customs and Inland Bevenue Act, 1881 (/), payable on payable on any property taken as a donatio mortis voluntary causa, or under a voluntary settlement purporting to ,j ona tions operate as an immediate gift inter vivos, whether by mortis causa way of transfer, delivery, declaration of trust, or other- and debts, wise, made by a donor who has died on or after June 1, 1881, unless it has been bona fide made three months before the death of the donor. Probate duty is similarly payable upon any property which such donor has voluntarily transferred to or vest- ed in himself and any other person jointly, whether by disposition or otherwise, so that the beneficial interest therein, or in some part thereof, passes or accrues by survivorship on his death to such other person. Probate duty is also payable on voluntary debts (g). son v. Donaldson, Kay, 711; Way's Trusts, 2 D. J. & S. 365; Bon- field v. Hassell, 32 Beav. 217 ; Armstrong v. Tamperon, 19 W. E. . 550; Jones v. Jones, 23 W. E. 1 ; Eeans v. Grey, 9 L. E. Ir. 539 ; and see Bythewood & Jarman, 4th ed. vol. 2, pp. 264-6. (x) Smith v. Lyne, 2 Y. & C. C. C. 345. \y) Worrall v. Jacob, 3 Mer. 256. (z) Dallson v. Coatsworth, 1 P. Wins. 731; Beecher v. Major, 12 L. T. (N.S.)563. (a) Naldred v. Gilham, 1 P. Wms. 577; Re Way's Trusts, 2 D. J. & S. 365; Donaldson v. Gillott, L. E. 3 Eq. 278. (b) Clavering v. Clavering, 2 Ver. 473. (e) Sepalinov. Twilty, 2 Eq. Ca. Ab. 287; Lady Hudson's Case, Prec. Ch. 235; Donaldson v. Gillott, L. E. 3 Eq. 278. (d) Fletcher v. Fletcher, 4 Hare, 67; Braekenbury v. Bracken- bury, 2 J. & W. 391; Cecil v. Butcher, 2 J. & W. 565. («) In re Booker, 34 W. E. 346. (/) 44 Vict. c. 12, s. 38. See post, p. 502. (g) 44 Vict. c. 12, s. 28. (5553) [* 460] *CHAPTER IV. WHEN AND TO WHAT EXTENT THE ABSENCE OP A VALUABLE CONSIDERATION WILL INVALIDATE A COMPLETE VOLUNTARY DISPOSITION OF PROP- ERTY. Voluntary Voluntary settlements, when once they are complete settlements apart from any questions of actual or statutory fraud, as binding as are as binding as if they had been made for a valuable talue, for consideration. Trustees of a voluntary deed are therefore liable for breaches of trust as much as if they were the trustees of a deed for value (h), even though the trust was cre- ated by a voluntary gift of tne trustees themselves (i). Their conduct must be regarded in the same way, whether the trust was created for valuable consideration or from motives of benevolence (i). So the donee of a power created by himself without consideration is as much bound by the rules of equity as if the power had been created by any other person (k). unless void The want of consideration may make a disposition of under sta- property void against creditors under 13 Eliz. c 5 (I), FT^h th or ^ e Bankruptcy Acts (m), or against purchasers un- Bankruptay der 27 Eliz. c. 4 \n) ; and voluntary gifts are also lia- Aets, or for ble to be set aside on account of fraud in the way in fraud. which they were obtained (o). In most instances, however, if the gift is once fully and validly and perfectly affected ( p), the want of con- sideration is of no importance. (h) Smith v. French, 2 Atk. 243; Lanham v. Pirie, 2 Jur. (N S ) 753, S. C. 3 Jur. (N.S.) 704. (i) Drosicr v. Brereton, 15 Beav. 221. See Stone v. Stone, L. R. 5 Ch. 74. (/c) Topliam v. Duke of Portland, 11 W. R. 507; Daubeny v. Cockburn, 1 Mer. 626. (I) Ante, pt. ii. (m) See now 46 & 47 Vict. c. 52, s. 47 (1) ; ante, pp. 12, 42 et seq. in) Ante, pt. iii. (o) Post, pt. v. ch. v. (p) Ante, pp. 402 et seq. (5554) VOLUNTARY SETTLEMENT : WHEN BINDING. 469 * "There are, no doubt," said Lord Eomil- [*461 ]• Complete ly, M. R., in Dickinson v. Burrell (q), " vaiious circum- voluntary stances which may be connected with a voluntary deed deed con- which will induce this Court either to set the deed aside * d "g (1 J u[ c or to refuse to execute the trusts contained in it. There value, are also statutory enactments which may defeat a vol- untary deed which would be otherwise valid ; but, as- suming a voluntary deed to be complete, bona fide, and valid, and to be unaffected by any statutory disability I know of no distinction between such a deed and one executed for valuable consideration. The estates and limitations created in 6uch a deed have the same opera- tion and effect as in a deed executed for value, and must be construed in the same manner ; and it carries with it all the same incidents and rights attached to the property conveyed as are carried by a deed executed for value ; and the grantee, in this respect, stands ex- actly in the same situation as if he had paid value for the property conveyed." The Court has no discretion to prevent a person of undue in- full age and sound mind from making a voluntary gift fluence. even though he thereby strips himself of all his prop- erty, except in cases of undue influence (r). In the absence of proof of this, the donor's right to select the objects of his bounty, and the donee's right to receive it, is incontrovertible; the donor is bound by his 'act, and the Court cannot interfere (s). The law of this land, said James, L. J., in Hall v. Hall (t), permits any one to dispose of his property gratuitously, if he pleases, subject only to the special provisions as to subsequent purchasers and as to cred- itors. Thus in VillersY. Beaumont (u), W. B., a little be- villersv. Beaumont. (q) L. B. 1 Eq. 343 ; and see Bochfort v. Fitzmaurice, 2 Dr. & Wor., per Sugden, C, at p. 20 ; Sackville West v. Viscount Holmes- dale, L. B. 4 H. L. 554. (r) Per Lord Eldon in Huguenin v. Basseley, 14 Ves. 290, 2 Wh. & Tu. L. C. 6th ed. 597 et seq. ; and see Toker v. Toker, 31 Beav. 629, 644 ; Armstrong v. Armstrong, Ir. B 8 Eq. 1 ; Phillips v. Mullings, L. E. 7 Ch. 244; Henry v. Armstrong, 18 Ch. D. 668 ; James v. Couchman, 29 Ch. D. 212 ; post, pt. v. ch. v. (s) Hunter v. Atkins, 3 My. & K. 113, per Lord Brougham, at p. 134. (1) L. E. 8 Ch. 437. (m) lVern. 100; Wright v. Moor, 1 Eep. Ch. 84 [157]. As to subsequent disposal of property previously conveyed without consideration, see post, pp. 475, 476. (5555) 470 VOLUNTARY SETTLEMENT fore his death, by a little scrap of paper at an alehouse, f * 462 ] but under hand and seal, * settled a lease for years upon A. and B. to the intent to pay his debts, and gave the surplus to them. Afterwards, being dis- satisfied with the settlement, which he had delivered out of his hands to a creditor, he attempted to dispose of the same property by will ; and in support of the subsequent will it was insisted that the manner of ob- taining this deed carried with it badges of fraud and circumvention, or surprise at least. The Lord Chan- cellor, however, said : "There is no colour in this case. If a man will improvidently bind himself up by a vol- untary deed, and not reserve a liberty to himself by a power of revocation, this Court will not loose the fet- ters he hath put upon himself, but he must lie down under his own folly ; for if you would relieve in such a case, you must establish this proposition — viz., That a man can make no voluntary disposition of his estate but by his will only, which would be absurd." Lumley v. The principle that a voluntary settlement cannot be set aside in the absence of clear proof of fraud or sur- prise is well illustrated by the case of Lumley v. Desbor- ough (v). The plaintiff filed his bill to impeach a post- nuptial settlement made by him, on the ground of fraud, alleging he did not then know A. B. was not his lawful ' wife. In 1847 he had married A. B., who described herself as a spinster. Some years after he separated from A. B., and then made in her favour the settlement in question. The settlement recited that A. B. was the wife of the plaintiff, and was made in consideration of natural love and affection, but contained no covenant to indemnify the plaintiff against A. B.'s debts (w). After the separation the plaintiff made inquiries as to A. B.'s previous marriage, and subsequently prosecuted her for bigamy in 1809, of which she was found guilty; but, on a point reserved, the conviction was quashed. Sir J. Stuart, V.C., dismissed the bill, and said : " The rule of the Court is plain, that a voluntary in- strument cannot be set aside by the settlor who made it, unless he can prove that it was executed under cir- cumstances which amount to a fraud, or, in other words, that he was deceived in such a manner as to lead the (v) 22 L. T. (N.S.) 597 ; Pratt v. Barker, 1 Sim. 1, S. C. 4 Kttss. 507. But see Robinson y- Dickenson, 3 Russ. 399 ; post, p. 478. (w) See ante, pp. 301 et seq. (5556) WHEN BINDING. 471 * Court to the conclusion that the settlement [ * 463 J is no settlement at all. The mere recital in the deed of 'words of description which turn out to be inaccurate is not enough. It might be said that the defendant, Mrs. L., in executing a deed which describes her as the wife of Major L., knew at the time she signed it that she was not his lawful wife (x). But in order to sup- port a case of that kind, the knowledge — or, at all events, the belief — that she was not his lawful wife must be shewn clearly." There is no analogy between these cases and those Assignments in which property has been vested in trustees for cred- in trust for itors, and the assignment has neither been acted upon ^editors by nor communicated to the creditors. For, as Sir J. 1 eren " Leach said (y) Wallwyn v. Coutts (z) aDd Garrard v. Lauderdale (a), "so far from deciding that a cestui que trust becoming entitled under a voluntary settlement has not a good title, proceeded upon this, that the char- acter of trustee and cestui que trust neve? existed be- tween the creditors and the trustees of the trust deeds, but that the settlor himself was the only cestui que trust, and therefore that he was entitled to direct the application of his own trust fund." , And even settlements which are actually er construe- Settlements tively fraudulent, either against creditors or purchasers, void under under the statutes of Elizabeth, are, as between the statutes are parties to them, and all persons claiming through them, j^° w ™ unimpeachable (6). parties. This is expressly provided by the wording of the statutes (c). (x) See Wilkinson v. Joughin, L. R. 2 Eq. 319. (y) In Bill v. Cureton, 2 My. &K. 511. See Paterson v. Murphy, 11 Hare, 90 ; Jones v. James, 8 Ch. D. 744 ; and see ante pp. 433 et seq. (2) 3 Mer. 707. (a) 3 Sim. 1-12, where the same distinction was expressly rec- ognized. (5) Ante. pp. 67. 69, 298, 209. (e) By 13 Eliz. c. 5, s. 2, con veyances, &e. , are(" only as against that person or persons, his or their heirs, successors, executors, administrators, and assigns, and every of them, whose actions, suits, debts, accounts,' damages, penalties, forfeitures, heriots, mortuaries, and relief, by such guilful, covinous, or fraudulent devices and practices as is aforesaid, are, shall, or might be in anywise disturbed, hindered, delayed, or defrauded") utterly void and of none effect. By 27 Eliz. c. 4, s. 2, all convey- ances made to deceive purchasers shall be deemed and taken, only as against that person and persons, bodies politic and corpor- (5557) 472 VOLUNTARY SETTLEMENT Voluntary settlement, by person in- debted, only void against creditors. So a transaction which comes within either of the [ *464] statutes can *only be upset by the persons thereby injured. No one but a creditor or. his repre- sentative can take advantage of a disposition of prop- erty being void under the 13 Eliz. c. 5 (d). No one but a subsequent purchaser can claim the benefit of the 27 Eliz. c. 4, as against a conveyance void under that Act (e). Although void as against them, the transaction is per- fectly valid and binding between the parties them- selves ( /), and a deed void against purchasers or cred- itors is valid for all other purposes (g), unless the transaction is so tainted by fraud as to necessitate the avoidance of the transaction in toto, in order to work justice between the parties (h). A voluntary settlement made by a person " indebted," and therefore constructively fraudulent within 13 Eliz. c. 5, is void only as against creditors ; and only to the extent to which it may be necessary to deal with the estate for their satisfaction as if it had never been made. To every other purpose it is good. Satisfy the cred- itors and the settlement stands. The Court frequently is obliged to sell the whole property settled ; but the whole proceeds are not necessarily applicable (i). So where an annuity had been settled by a man On his wife, in fraud of his creditors, it was provided by the decree declaring the annuity void against creditors that it was to be without prejudice to any claim on the part of the wife with respect to the annuity if there should ultimately be a surplus after payment of creditors (k). ate, his and their heirs, successors, executors, administrators, and assigns, and against all and every other person or persons lawfully having or claiming by, from, or under them, or any of them, which have purchased, &c, utterly void, &c. (d) Lake v. Billers, 1 Ld. Eaym. 733 ; Bessy v. Windham, 6 Q. B. 166; White v. Morris, 11 C. B. 1015, ante, p. 172; Steel v. Brown, 1 Taunt, 381 ; Robinson v. M'Donnell, 2 B. & Aid. 134 ; Sims. v. Taffs, 6 Cr. & P. 207 ; et infra, Rice v. Serjeant, 7 Mod.' 37. As to who are creditors, see ante, pp. 163 et seq. (e) Crolcer v. Martin, 1 Bli. N. R. 573 et infra ; Doe v. Rusham, 17 Q. B. 723, 733. As to who are purchasers, see ante, pp. 217 et seq. (/) 3 Com. Dig. 296 ; Pauncefoot v. Blunt, 3 Rep, 82 a ; Shaw v. Jeffery, 13 Moo. P. C. 432 ; Reed v. Thoyts. 6 M. & W. 410 (g) Curtis v. Price, 12 Ves. 89, 103 ; ante, p. 68. (h) Tarleton v. Liddell, 17 Q. B. 390, 418-9 ; ante, p. 264. (i) Per Sir W. Grant in Curtis v. Price, 12 Ves. 89, 103 ; Tan- queray v. Bowles, L. R. 14 Eq. at. p. 157 ; ante, p. 68. \k) French v. French, 6 De G. M. & G. 95, 103 , Gardiner v Shannon, 2 Sch. & Lef. 230. (5558) HOW FAR BINDING. 473 And a voluntary deed by a bankrupt, though void By bankrupt, against creditors, subsist for all other purposes, so that any surplus would be subject to the trusts of it (I). * Under the Bills of Sale Act, 1878, such [* 465] Effect of deed is, if not duly registered, void only as against the wa ?* of persons specified in that Act (m), and also is liable to underBillsof be postponed to another subsequent deed registered Sale Acts, before it (n). Under the Bills of Sale Act, 1882 (o), such deed, if not duly registered, is absolutely void against all persons, even against the grantor, in respect of the personal chattels comprised therein (p). Under the 27 Eliz. c. 4, a voluntary conveyance is of Under 27 course valid between the parties, until there is some Eliz - c - 4 - one qualified to take advantage of the statute as a sub- sequent bona fide purchaser for value; and the volun- tary deed is only void against such a purchaser so far as is necessary to give full effect to the interest con- veyed to him (q). Thus where a man made a voluntary settlement of Voluntary certain lands on himself and on his eldest son, and *™ st s subsist subsequently on the marriage of the son resettled the r^hts of property on himself and him, the son having died with- purchasers. out issue, and the trusts of the marriage settlement be- ing fully performed and satisfied, it was held, that the first settlement was a purely voluntary settlement bind- ing against the settlor, but not against a conveyance on valuable consideration, which the marriage settle- ment was (r); yet that the marriage settlement only prevailed over the first deed to the extent of the limita- tions in it in favour of the parties who took under it as purchasers for value, and no further; and therefore, that although it was provided by an express stipulation in the marriage settlement that, after all the interests which were thereby created were satisfied, the estate should revert to the settlor, that estate would be held by the settlor subject to the trusts of the voluntary deed, which, though not binding as against a pur- chaser, was binding against him and against his vol- untary dispositions (s). (1) Ex parte Bell, 1 Gl. & J. 282 ; 46 & 47 Vict. c. 52, s. 40 (5). (>») 41 & 42 Vict^c. 31, s. 8; ante, p. 136. (n) 41 & 42 Vict. c. 31, s. 10 (4); Conelly v. Steer, 7 Q. B. D. 520; Lvons v. Jiicker, 7 Q. B. D. 523; ante, pp. 154, 155. (o) 45 & 46 Vict. c. 43,' s. 8; ante, p. 140. (p) Ante, pp. 140,162. (q) Ante, pp. 208, 209. (r) Ante, p. 222. (s) Qroker v. Martin, 1 Bli. N. E. 573; Sug. L. of Prop. 148. (5559) 474 VOLUNTARY SETTLEMENT Voluntary settlement only dis- placed pro tanto. Except so far as regards any benefit (as a life in- [ * 4G6 ) terest) taken *by the settlor under the limi tations of the settlement, which would of course be in general subject to his full powers of disposition, a voluntary settlement of land gives rights to the volun- teers, which can only be displaced by the settlor con- veying for valuable consideration the same estates to others, who would take as purchasers, whether it were an out- and out purchase or whether it were a mortgage. By virtue of the statute 27 Eliz. c. 4, the settlor is able to defeat the settlement which he has created so far as the purchase of the mortgage extends. Not on account of any favour shewn him, nor because the deed itself was as to him invalid. On the contrary, he could in no wise invalidate the deed except by creating such an in- terest in others. And on behalf of the mortgagee or purchaser the statute intervenes, and says, that as to any purchaser the deed shall be invalidated to the ex- tent of the interest of that purchaser. It leaves all those who were interested under the voluntary settle- ment in exactly the same position in which they were originally placed when the settlement was executed, except that they are displaced to the extent to which the sale or mortgage displaces them (t). Part of Where only part of the land settled has been subse- settled lands q Ue ntly sold, the settlement remains good as to the unsold portion (it). But, of course, as to so much of the land as is actually sold, the voluntary alienation becomes utterly void and of no effect, and the volun- teer has no right to the land sold on paying the pur- chaser what he gave for it; and cannot claim the pur- chase-money from the settlor as being subject to the trusts of the settlement (v). Thome v. Newman. Volunteers allowed to redeem land sold on pay- ment of purchase and other money paid. The old case of Thome v. Newman (w), however, would seem to warrant such a supposition, if the report can be relied on, according to which the bill was filed to set aside a pretended voluntary conveyance made with power of revocation on the tender of a shilling. [ * 467] The shilling was tendered, but (it was *con tended by the defendants) informally, and the plaintiff (0 Dolphin v. Aylward, L. R. 4 H. L. 499-500: per Lord Hath- erley, L. C. ; see In re Walhampion Estate, 26 Ch. D. 391, 393; post, pt. vi. ch. i. ; ante, p. 208. (u) Williamson v. Codrington, 1 Ves. 515; post, pt. vi. ch. i. (d) Pulvertoft v. Pulvertoft, 18 Ves. 91 j Daking v. Whimper, 26 Beav. 568; Townend v. Toker, L. E. 1 Ch. 446: ante, p. 208 (w) Finch, 38. (5560) HOW FAB, BINDING. 475 became a purchaser of the premises, first, by a mort- gage for £500, and afterwards by an absolute assign- ment, in consideration of £770 more paid. He had also laid out money in repairs and building, and prayed to have the voluntary deed set aside,- but the defendants praying a redemption of the premises, upon payment of the said sums of money 'with interest, together with the money laid out in building and re- pairing, " It was ordered that the Master should com- pute the same, and what profits the plaintiff or any other person for his use had received, and he to ac- count for all wilful spoils and wastes done; and upon payment of what shall appear to be due the plaintiff should assign the pre"mises to the defendant; but in default of payment then the plaintiff was to hold the premises against the defendants and all claiming under them by the said deed." This was at the Rolls, and upon appeal the Lord Chancellor confirmed this de- In the ordinary case of property being settled volun- Volunteer tarily, and afterwards mortgaged by the settlor, the vol- ma y redeem unteer has a perfectly valid title subject to the mort- mort g a g e - gage. Thus in Rand v. Cartwright (x) a man made a vol- untary deed and then a mortgage of the same lands. It was held that, though the firBt deed was fraudulent, because voluntary, quoad the mortgage-money, and pro tanto, yet that it was good as to the equity of redemp- tion, and would pass that; for that a voluntary deed will bind the party that makes it and his heirs. And the volunteers are equally entitled to redeem a subsequent mortgage, where the deed under which they claim contains a power of revocation (y). If land subject to a mortgage be made the subject of Surplus pro- a voluntary settlement, any surplus proceeds, after a ce f^ s ? f 8al ^_ sale of it by the mortgagee under his power of sale, is ga ged and subject to the trusts of the settlement (z). then settled *And where, after a settlement of freeholds, [* 468 ] (x) Nels. 101, 1 Ca, Ch. 59; and see Roscarrick v. Barton, 1 Ca. Ch. 217; Howard v. Harris, 1 Vein. 190, 193; Girling v. Lowther, Vin. Abr. vol. 22, p. 22, F. 1; Jones v. Baugh, ibid. E. 1. (y) Perkins v. Walker, 1 Vern. 97; Thome v. Thome, ibid. 141. (2) In re Walhampton Estate, 26 Ch. D. 391. (5561) subject to trusts. 476 VOLUNTARY SETTLEMENT Marshalling, the settlor mortgaged the property together with un- settled estates of his own, it was held that the volun- teers were entitled to throw the mortgage primarily upon the unsettled estates ; and the settlor having bought from one of the volunteers his share and resettled it voluntarily subsequently to the mortgage, the persons claiming under the resettlement were also allowed to throw the mortgage primarily on the unsettled estates (a). Sale by a vendor in- tending a mortgage. Where there is any fraud in representing to the vendor that the transaction was a mortgage instead of an abso- lute sale, inasmuch as the volunteers would be entitled to all the settlor's rights as to the settled property, subject to his dealing with it for* value, it is conceived that they would be entitled to have the conveyance de- clared to be only a mortgage for the amount of the purchase-money, and that the settlement would be valid subject to the mortgage (6). A conveyance void against purchasers may be a breach of a covenant not to assign (c). Voluntary Even a deed voluntary in form, the consideration for deeds void in which arises ex turpi causst, is good in equity where there is no creditor (d). So where a settlement of shares was made upon a stranger and the shares were duly trans- ferred to the trustees, the Court would not set it aside at the instance of the settlor or his legal personal repre- sentative, even when it was made for an illegal consid- eration which did not appear on the face of the deed (e). Contracts founded on immoral considerations are ab- solutely void. So a fund settled in trust for after-born illegitimate children was ordered to be transferred to the settlor as against such children, on the ground that such a provision is void (/). In the same manner contracts founded on or inducive of future illicit [ * 469] * cohabitation or void (g) ; whereas those (a) Hales v. Cox, 32 Beav. 118; Anatey v. Newman, 39 L. J. (N.S.) Ch. 769; post, pt. vi. ch, i. creation. (b) See Douglas v. Culverwell, 3 Giff. 251. Gewen v. Boll, Cro. Jac. 132. (d) Per Hale, B., in Carey v. Stafford, 3 Sw. 427, n., 429, n. (e) Ayerst v. Jenkins, L. R. 16 Eq. 275; commented on in Paw- son v. Brown, 13 Ch. D. 202. (f) Wilkinson v. Wilkinson, 1 Y. & C. C. C. 657. (g) Walker v. Perkins, 3 Burr. 1568; Sex v. Inhabitants of Norih- wingfield, IB. & Ad. 912; Gray v. Malhias, 5 Ves. 286; Willyams v. Bullmore, 32 Beav. 574; Ayerst v. Jenkins, L. R. 16 Eq. 275- see Chitty, Cont. 11th ed. 613 et seq. (5562) HOW FAR BINDING. 477 founded on past cohabitation or past seduction and co- habitation are merely voluntary (h). So an agreement for or inducive of future separation by husband and wife is void (i). So also contracts in encouragement or for the purposes of prostitution are void, as being contra bonos mores (fc). Voluntary contracts which clearly are injurious to the public interests are void on grounds of public policy. As, for instance, such as are in restraint of trade, whether general or particular (I), nr for the creation of a monopoly (m), or in restraint of marriage (n). A contract which is void on the ground of public pol- icy may be set aside by one particeps criminis (o), but the voluntary gift of part of his own pioperty by one particeps criminis to another is in itself neither fraud- ulent nor prohibited by law (p). The real distinction is between a contract that is executed and one that is executory (q). *A party to a contract which is fraudulent [* 470] (h) Knye v. Moore, 2 S. & S. 260; Beaumont v. Reeve, 8 Q. B. 483; and see Hall v. Palmer, 3 Hare, 532; Lumley v. Desborough, 22 L. T. (N.S.) 597; Ayerst v. Jenkins, L. E. 16 Eq. 282, per Lord Selborne, L. C. ; notwithstanding the earlier cases of Binnington v: Wallix, 4 B. & Aid. 650, 652; and Friend v. Harrison, 2 C. & P. 584. (i) Westmeath v. Westmeath, Jac. 126, 1 Iiow. & CI. 519; and see Swift v. .Swift, 34 Beav. 266; ante, p. 312. (k) See Girardy v. Richardson, 1 Esp. 13; Howard v. Hodges, 1 Selw. N. P. 13th ed. 80; Lloyd v. Johnson, 1 B. & P. 340; Apple- ton v. Campbell, 2 Car. & P. 347; Jennings v. Throgmorton , Ry. & Mood. 251; PearceY. Brooks, L. E. 1 Ex. 213; Smith v. While, L. E. 1 Eq. 626: Taylor v. Chester, 10 B. & S. 237; Herman v. Jeuch- ner, 15 Q. B. D. 561; Chitty, Cont. 11th ed. 614. (1) Hilton v. Eekersley, 6 E. & B. 47, 74-5; Wood v. Boioron, L. R. 2 Q. B. 21; and see Harms v. Parsons, 32 Beav. 328; Collins v. Locke, 4 App. Cas. 674 ; Mitchell v. Reynolds, 1 Sm. L. C. 8th ed. 417 et seq. (m) Duvergier v. Fellowes, 10 B. & C. 8S6 ; Mitchell v. Reynolds, 1 P. Wms. 181-185, 1 Sm. L. C. 8th ed. 417 et seq.; Young v. Timmins, 1 Tyrw. 226, 241 ; Homer v. Ashford, 3 Bing. 322 ; Hitchcock v. Coker, 6 Ad. & E. 438, 456 ; Farrer v. Close, 10 B. & S. 553; Chitty, Cont. 11th ed. 615 et seq. (n) Lowe v. Peers, 4 Burr. 2225, Wilm. 364; Baker v. White, 2 Vern. 215; Woodhouse v. Shepley, 2 Atk. 540. See Scott v. Tyler, 2 Wh. & Tu. L. C. 6th ed. 120 et seq. (o) Vauxhall Bridge Co. v. Earl Spencer, 2 Mad. 356, and cases • there cited ; Sharp v. Taylor, 2 Phil. 801 ; Macgregor v. Dover and Deal Railway Co., 18 Q. B. 618; Ayerstv. Jenkins, L. E. 16 Eq. 275. (p) Ayerst v. Jenkins, L. B. 16 Eq. 283. (?) Whaleyv. Norton, 1 Vern. 483; Ayerst v. Jenkins, L. E. 16 Eq. 275. 36 STAT. OF ELIZ. (5563) 478 A MAN CANNOT SET UP Frans contra as against third persons cannot excuse himself from alios irrita performing his part of the agreement by alleging that contra j^ was fraudulent and void (r). fraudatores v ' valet. So where a transaction has been entered into between two parties for a purpose fraudulent against some third person, it may yet be binding between the parties. As between them it must be examined and looked at in the usual way, and construed without reference to the sup - posed fraudulent intention against third persons (s); for a- man cannot set up an illegal or fraudulent act of his own in order to avoid his own deed (t). Sims v. Tuffs. Where a tenant of B. had paid all his rent, and got his landlord's receipt for it, but fearing execution by a creditor, agreed with B., the landlord, to destroy the receipt, and that B. should put in a distress for rent, and he did so, and sold the goods and kept the pro- ceeds, it was held that the parties were in pari delicto; that the plaintiff (the tenant) could not be assisted in the recovery of the proceeds of the sale; they were both contemplating a fraud, and the transaction must be taken to be valid between them though a fraud on a third person (u). Statute of Nor can a defendant to whom a voluntary convey- Frauds can- ance of property has been made set up the Statute of not be set up Frauds as an answer to the case that he is merely a iVand ^ * trustee of taat property for the plaintiff. The Court will not allow a man to take advantage of the Statutes of Frauds to keep another man's property which he has obtained through fraud (v). This principle, that a man cannot set up his own (r) Hawes v. Leader, Cro. Jac. 270, 1 Brownlow, 111, Yelv. 196, 3 Cora. Dig. 296, Lofft, 427; De Melton v. De Mellon, 2 Camp. 420, 12 East, 234; Worfhingtm v. Curtis, 1 Ch. D. 419 ; et vide supra as to conveyances fraudulent within the statutes of Elizabeth. (s) Shaw v. Jefferys, 13 Moo. P. C. 432, 454-5 ; Phillpotts v. Phillpotts, 10 C. B. 85. (t) Watts v. Brooks, 3 Ves. 612-3; Roberts v. Roberts, Dan. 143 Ex parte Meymoi, 1 Atk. 196; Cottington v. Fletcher, 2 Atk. 155-6 Irnham v. Child, 1 Bro. C. C. 92: Curtis v. Perry, 6 Ves. 739, 747 Bessey v. Windham, 6 Q. B. 166; Phillpotts v. Phillpotts, IOC. B.' 85, which was a fictitious conveyance to give a note in a parlia- mentary election; and see In re South Wales Atlantic Steamship Co., 2 Ch. D. 763; Chitty, Cont. 11th ed. 630. (u) Sims v. Tuffs, 6 C. & P. 207. (») Childers v. Childers, 1 De. G. & J. 482 ; Davies v. Otty, 35 Beav. 208; Lincoln v. Wright, 4 De. G. & J. 16; Haigh v. Kaye, L. R. 7 Ch. 469. (5564) HIS OWN FRAUD. 479 fraud to avoid his own deed, is not confined to the stat- A man may utes of Elizabeth. not set up his own frand. * So where a man, to enable his brother to [* 471 ] represent himself as a man of property, and to carry on a marriage treaty, gave him a note for a large sum as the balance between them, it was held (the marriage being had) that the note was binding between them (w). So in Roberts v. Roberts (x) it was held that a deed made for the purpose of giving a qualification to shoot game, and which had never been acted upon, but was prepared and executed with the knowledge of the grantee, and was delivered to him, the title deeds, how- ever, and profits of the land being retained by the grantor, could not be set aside nor a reconveyance com - pelled. In Birch v. Blagrave (y), however, a man made a se Birch v. cret conveyance of land to his daughter and remained Blagrave. in possession of the estate conveyed, and retained the deed himself. It was proved that he executed the deed to avoid being sheriff of London by putting the legal interest out of himself so that he might swear that he . was not worth £15,000, but he afterwards changed his mind and paid the fine. It was held that this volun- tary deed was avoided by his subsequent devise of the lands. Lord Hardwicke said cases of this sort stand on their own circumstances. That as he had not, by taking the oath, actually committed a fraud, and had done it under the mistaken impression that by putting the legal estate out of himself he could take the oath, and had no intention of parting with the beneficial in- terest, the conveyance ought not to take effect against him unless he had actually taken the oath; that would have been against conscience and in fraud of the law; as in the case of Colonel Pitt. He sat in Parliament by virtue of the conveyance. Suppose George Pilt had found his mistake and repented of it before he had car- ried his intention into execution, and Colonel Pitt had not been in Parliament, a contrary determination would have prevailed. The mere fact that an assignment has been made for an illegal purpose does not, of itself, prevent the Court, at the instance of the assignor, from interfering. (w) Montefiori v. Montefiori, 1 W. Bl. 363. (x) Dan. 143. (y) 1 Amb. 264. (5565) 480 VOLUNTARY DEED The true principle seems to be this. Where the pur- pose for which an assignment is made is not carried [ * 472 ] into execution and * nothing is done under it, the mere intention to effect an illegal object when the assignment is executed does not deprive the assignor of his right to recover the property from the assignee who has given no consideration for it (z). Complete As a voluntary deed is binding on the settlor once voluntary that it has been duly completed, so, in general, it is im- deed only set material whether the settlor does or does not retain pos- aside on what gegg j on f ^ e ) ; and, subject to any question as to undue influence (x), to treat any such previous inconsistent dispositions as unaided by the marriage consideration. As a voluntary settlement is not supported by a con- Trust for tract, so a settlor of a voluntary post-nuptial settlement maintenance, which contained a discretionary trust for the mainte- nance of the children out of the income of the fund settled is not entitled to recoup himself out of the ac- cumulations of that income any sums he may have paid for their maintenance (y). (») Thomas v. Brennan, 15 L. J. (N.S.) Ch. 420 ; M'Donnell y. Hesilrige, 16 Beav. 346 ; Bond v. Walford, 32 Ch. D. 238. (to) Bond v. Walford, 32 Ch. D. 238. (x) Bobinson v. Dickenson, 3 Euss. 399. (y) In re Kerrison's Trusts, L. K. 1 Eq. 422. (5573) [*480] *CHAPTEK V. GIFTS VOIDABLE BETWEEN THE PARTIES FOE FRAUD, UNDUE INFLUENCE ETC. , PRACTISED ON THE DONOR. Fraud be- The rule that a man cannot allege fraud to avoid his tween own deed, of course has no application where the fraud parties. was p rac t,iced against himself; fraud between the parties will always make the voluntary deed void as between them, and the fact of a conveyance being made without consideration is frequently a mark of such fraud. Consequently when a voluntary deed has been ob- tained by fraud or undue influence (z), under circum- stances from which it appears that the donor did not know the effect of the deed, and did not make it with , his eys open (a), the Court will set it aside or restrain proceedings upon it at law (b). Deed not ^ a mal1 executes a deed without being aware of the properly effect of it, that deed cannot be set up against him understood, either at law (c) or in equity (d). Where there are circumstances which would lead the Court to suppose that the donor was not fully aware of what he was doing, the Court will not do anything in support of the gift (although no case of ignorance on the part of the donor is made out by the other side) unless satisfied that the effect of what he was doing was fully explained to the (z) See further as to this subject, the notes to Huguenin v. Baseley, 14 Ves. 273, 2 Wh. & Tu. L. C. 6th ed. 597etseq. ; Kerr, Fraud & Mis. 2d ed. 122 et seq. ; Peachey, Sett. 584 ; 2 Spence, Eq. J. 299 ; Pollock, Cont. 4th ed. 556 et seq. As to Wills, see 1 Jarm. 4th ed. 35, 36 ; Hall v. Hall, L. R. 1 P. & M. 481 ; Par- filt v. Lawless, L. R. 2 P. & M. 462 ; Longford v. Purdon, 1 L. R. Ir. 75 ; Wingrove v. Wingrove, 11 P. D. 81. (a) See note (z), and Wollaston v. Tribe, L. R. 9 Eq. 44 ; Dut- ton v. Thompson, 23 Ch. D. 278 ; National Provincial Bank of Eng- land v. Jackson, 33 Ch. D. 1, post. (b) Lloyd v. Clark, 6 Beav. 309. te) Doe v. Bennet, 8 C. & P. 124. (d) Bamsden.v. Hylton, 2 Ves. 304 ; Huguenin v. Baseley, 14 Ves. 273, 296 : Hoghion v. Hoghton, 15 Beav. 278 ; Wollaston v. Tribe, L. R. 9 eq. 44 ; Lister*?. Hodgson, L. R. 4Eq. 30 ; Everittv. Everitt, L. R. 10 Eq. 405 ; Button v. Thompson, 23 Ch. D. 278 ; Phillips v. Mullings, L. R. 7 Ch. 243 ; and see In re Garnell, 31 Ch. D. 1. (5574) VOLUNTARY DEED WHEN RECTIFIED. 489 donor (e). Where, for *example, a man who [ * 481] could not write executed a document, drawn out, read over to him, and attested by an unprofessional per- son, and purporting to grant all his property to his wife, the Court, independently of the validity of the gift per se, declined to support it (f). A gift not properly understood by the grantor cannot be upheld, though there was no actual fraud (g), and may be set aside even after the death of donor and donee (h). The Court cannot reform or rectify a voluntary set- Voluntary tlement against the settlor. He, and he alone, can settlement choose on what terms or subject to what conditions to "» at -jj^ ' make his gift; and the Court cannot compel him to settlor, alter his own deliberate act, however capricious or in- advisable it may be (i). If the deed does not express the intention of the set- tlor, and he contests it, the deed must stand or fall in its actual condition without alteration (k). So, unless the settlor consents, the vol untary settlement must be upheld or set aside in toto; it cannot be modified to suit former intentions (I). A voluntary settlement may, however, be rectified or Voluntary reformed in certain cases upon the ground of mistake, settlement either by the insertion (to), or alteration (n), or omis- ^fied rec " sion (o) of powers. (e) Price v. Price, 14 Beav. 598 S. C. 1 De G. M. & G. 308 ; Grosvenor v. Sherratt, 28 Beav. 659, and see post. (/) Price v. Price, 14 Beav. 598, S. C. 1 De G. M. & G. 308, post, p. 492 ; Grosvenor v. Sherratt, 28 Beav. 659. (g) Evans v. Llewellyn, 3 Bro. C. C. 150 ; Sturge v. Sturge, 12 Beav. 229; Phillips v. Mullings, L. R. 7Ch. 243; Dutton v. Thomp- son, 23 Ch. D. 278 ; and see Mara v. Ray, W. N. (1872) 127 ; National Provincial Bank of England v. Jackson, 33 Ch. D. 1. (h) Phillipson v. Kerry, 32 Beav. 628, S. C. 638. (t) Brown v. Kennedy, 33 Beav. 133, 147, S. C. 154 ; Phillipson v. Kerry, 33 Beav. 628, S. C. 638 ; Lister v. Hodgson, L. E. 4 Eq. 30, 34 ; Turnery. Collins, L. E. 7 Ch. 329 ; Keog-h v. M'Grath, 5 L. R. Ir. 478; see Kerr, Fraud & Mis. 2nd ed. 507. (k) Broun v. Kennedy, 33 Beav. 147 ; Keogh v. M'Grath, 5 L. E. Ir. 478, 502; and see Hughes v. Seanor, 18 W. E. 1122. (1) Cooke v. Lamotte, 15 Beav. 232, 250; Phillipson v. Kerry, 33 Beav. 628, S. C. 638; Turner v. Collins, L. E. 7 Ch. 342. (m) Hanley v. Pearson, 13 Ch. D. 545 ; Welman v. Welman, 15 Ch. D. 570; James v. Couchman, 29,Ch. D. 212. (n) Keogh v. M'Grath, 5 L. E. Ir. 478. (o) LacJcersteeh v. Lackersteen, 5 Jur. (N.S.) 1111; In re De La Touche's Settlement, L. E. 10 Eq. 599; Turner v. Collins, L. E. 7 Ch. 329; Hanley v. Pearson, 13 Ch. D. 545. (5575) 490 VOLUNTARY DEED WHEN RECTIFIED. Mistake must he common to all the parties. Of course -where the settlor agrees that part of a voluntary settlement ought to stand, the Court has power as against him to rectify or reform such settle- ment (p). [* 482] *If a man executes a voluntary deed and there- by declares trusts, after his death it is competent for a volunteer under that trust, if he can prove, by instruc- tions or otherwise, that any of the trusts have been de- clared erroneously, contrary to the intention of the set- tlor, to file a bill to have those trusts reformed (q), even if the error be such as to carry the property back to the estate of the original settlor (r). But where a power of revocation is omitted in a vol- untary settlement under the notion that it is not neces- sary to insert it, the settlement cannot be rectified by inserting the power (s). In order to enable the Court to rectify or reform a voluntary settlement on the ground of mistake, it must be proved that such mistake was common to all the par- ties to the voluntary settlement; it must be shewn that they all made the blunder, and the blunder must be clearly proved (t). The reason of this is that as the Court virtually makes a new written agreement for all the parties, it can only act upon their mutual and con- current intention (u). The Court will reform or rectify a voluntary settle- ment upon the uncontradicted evidence of the plaintiff alone (v), and that evidence may be given by parol if it be proved that written evidence cannot be obtained (mi). The proper proceeding is by action (x) in the Chancery Division of the High Court of Justice, unless the fund the subject of the settlement has been paid into court under the Trustee Kelief Acts (y). The action cannot be heard as a short cause (z). The order (p) Turner v. Collins, h. E. 7 Ch. 329, 342. " (q) Lister v. Hodgson, L. R. 4 Eq. 34. (r) Thompson v. Whifmorc, 1 J. & H. 268, 273. is) Worrall v. Jacob, 3 Mer. 270. (t) Boolce v. Lord Kensington, 2 K. & J. 253; Bentleyv. Mackav, 31 Beav. 151, S. C. 4 D. F. & J. 279. (it) Fowler v. Fowler, 4 De G. & J. 250, 265. (v) Hanley v. Pearson, 13 Ch. D. 545. (w) Lackersteen v. Lackersteen, 6 Jur. (N.S.) 1111. (x) Jud. Act, 1873, s. 34; and see E. S. C. Ord. 55, r. 2 (5). (y) Be Malet, 30 Beav. 407; In re Bird's Trusts, 3 Ch. D. 214. (z) Clennell v. Clennell, W. N. (1884) 14. (5576) CONFIDENTIAL RELATIONS. 491 of the Court to rectify the deed is enough to pass the legal estate without a conveyance (z), and in other cases the deed is usually rectified by indorsing a copy of the order on it (a). *It is with the object of protecting from [* 483 ] Incapacity of fraud of this kind (6) persons who are less able them- P e f s . on ? not selves to cope with it, that infants, insane persons (c), sul J uns - or persons of weak intellect, are to a great extent in capacitated from binding themselves by their contracts, and that contracts made under duress are voidable by the person whose free will was restrained (d). So before the Married Women's Property Act, 1882, a married woman could only bind her separate property in equity in certain special cases, and the common law did not ullow her to contract at all (e). "Where at the time that a gift or voluntary settlement Confidential is made a confidential or fiduciary relation existed be- relations, tween the donor and donee, the view the Court adopts is that the donee had great temptation to take advantage of his position for the purposes of fraud, and unusual opportunities .of practising upon the weakness or the ignorance of the donor. It is therefore a rule of equity that all gifts or voluntary settlements made under such circumstances are to be viewed with a greater or less amount of suspicion in proportion to the means which the relation of the parties to each other afforded of ex- ercising terrorism or undue influence, or inducing the donor to make the gift or voluntary settlement Without being fully aware of and intending what he was do- ing(/)- [z) White v. White, L. R. 15 Eq. 247 ; Hanley v. Pearson, 13 Ch. D. 545; and see Seton, 4th ed. 1343. (a) Hanley v. Pearson, 13 Ch. D. 549 ; James v. Couchman, 29 Ch. D. 218; and see Seton, 4th ed. 1343. (b) Ante, pp. 480, 481. (c) As to degrees of incapacity of mind, see Wltite v. Small, 2 Ch. Ca. 103; Lord Thurlow's judgment in Welles v. Middleton, 1 ' Cox, 119; Selby v. Jackson, 6.Beav. 192, in which, under the cir- cumstances, the Court refused to set aside deeds by a person un- . der restraint in a lunatic asylum, under the medical certificate; and In re Gordon, L. E. 10 Ch. 192. (d) 2 Bl. Com. 29 et seq. : 2 Broom. & H. Com. 468; Kerr, Fraud &Mis. 2nded. 120 et seq. (e) 45 & 46 Vict. c. 75, s. 1 (2), (3), (4), Conolan v. Leyland, 27 Ch. D. 632, In re Shakespeare, 30 Ch. D. 169; ante, pp. 281, 282. (/) See the cases cited and commented on under Hnguenin v. Baseley, in 2 Wh. & Tu. L. C. 6th ed. 597 et seq. ; Kerr, Fraud & Mis. 2nd ed. 120 et seq. ; and see Nantes v. Corrock, 9 Ves. 182, a (5577) 492 UNDUE INFLUENCE Husband and The common law, for instance, having regard to the wife. great influence which a husband has it in his power to exert over his wife, allowed no contracts between hus- band and wife to be binding (g). For the same reason [ * 484 ] a married woman could not in *general validly deal with any interest in land belonging to her (h) without being subjected to certain safeguards against the undue influence of her husband — viz., that the judge, master, or commissioners " shall examine her apart from her husband touching her knowledge of such deed, and shall ascertain whether she freely and voluntary consents to such deed, and unless she freely and voluntary con- sents to such deed shall not permit her to acknowledge the same" (i). Guardian. Again, a ward is, or is supposed to be, very much under the power of his or her guardian (k), and a child is assumed to be greatly under the influence of his Father. father (I). So a patient is regarded as very much un- Doctor. de r the influence of his doctor (m). A client or prin- cipal seldom knows so much of his own affairs as his Solicitor. solicitor or agent does, and is therefore peculiarly open to unfair dealing on the solicitor's part (n). In the case, therefore, of a gift or voluntary settle- ment made by one of such persons to, or for the benefit of, the other, the one is supposed to be under the influ- ence of the other; and it must be shewn that sufficient protection has been interposed against the exertion of such influence. Burden of proof when castondonee. In considering the question what undue influence will avail to render voidable a gift or voluntary settlement case of master and servant; Rhodes v. Bate, L. R. 1 Ch. 252; Lyon •v. Home, L. R. 6 Eq. 655; Phillipson v. Kerry, 32 Beav. 628; Broun v. Kennedy, 33 Beav. 133; Graham v. Johnson, L. R. 8 Eq. 36; Mitchell v. Homfray, 8 Q. B. D. 587; post, pp. 484 etseq. (. 603; Eversley, Dom. Rel. 777 et seq.; Pollock, Cont., 4th ed.' 569 etseq.; Kerr, Fraud & Mis. 2nd ed, 153; Simpson, Infants, 431 et seq.; Story, Eq. Jur. 13th ed. ss. 317 et seq. (e) Hatch v. Hatch, 9 Ves. 292; Wood v. Downes, 18 Ves. 127, per Lord Eldon; Eversley, Dom. Rel. 782. (f) Hylton v. Hylton, 2 Ves. 548, 549. (g) Hylton v. Hylton, 2 Ves. 549; Hatch v. Hatch, 9 Ves. 296; Taylor v. Johnston, 19 Ch. D. 608, 609; and see The Duke of Ham- ilton v. Lord Mohun, 1 P. Wms. 118; Pierce v. Waring, 1 P. Wms. 121; Wood v. Downes, 18 Ves., per Lord Eldon, at p. 127. (5588) RELATION TO DONOR. 503 days before her death, of part of her money to her first cousin, with whom she had lived from her father's death for the five months previous to her own death, was upheld (h) The same principle applies, of course, as against any person who takes upon himself the oifice and responsi- bilities of a guardian, although he is not legally so ap- pointed (t). There are a variety of other instances in which this Miscella- principle has been applied, such as the cases of gifts peous cases by nun to her. *convent (fc), by a patient to [ * 495] j^^e has his doctor (I), by a penitent to her confessor (m), by any been applied, person under the influence of a spiritual ascendancy in favour of the possessor of that ascendency, whether such possessor be a relation, as brother (n) or sister (o), or not, as merely a minister of religion (p), or by a person who is subject to superstitious fancies and delu- sions, in favour of the person who has worked upon those fancies and delusions (q), as by pretending to be a medium, and enabling a lady to hold converse with the spirit of her deceased husband (r). Of course every case in -which a person has taken upon himself to assume and exercise the functions which belong to a position of a confidential or fiduciary character is within this principle (s), (h) Taylor v. Johnston, 19 Ch. D 603. (i) Osmond v. Fitzroy, 3 P. Wms. 129; Griffin v. De Veuille, 3 P. Wms. 131, n. ; Hyllon v. Hyllon, 2 Ves. 547. (k) Whyte v. Meade, 2 Ir. Eq. 420; McCarthy v. M'Carthy, 9 Ir. Eq. 620, S. C 1 H. L. C. 703; Be Metcalfe's Trusts, 2 D. J. & S. 122. (I) Hunter v. Atkins. 3 My. & K. 113, et supra ; Dent v. Ben- nett', 7 Sim. 539, S. C. 4 My. & Cr. 269 ; Gibson v. Bussell, 2 Y. & C. C. C. 104 ; Pratt v. Barker, 1 Sim. 7 S. C. 4 Euss. 507 ; Bil- lage v. Souihbee, 9 Hare. 534, 540 ; Mitchell v. Homfray, 8 Q. B. D. 587. (to) Parfitt v. Lawless, L. R. 2 P. & D. per Lord Penzance, 468. (?i) Sharp v. Leach, 31 Beav. 491 ; and see Slurge v. Sturge, 12 Beav. 229 ; Sercombe v. Sanders, 34 Beav. 382. (o) Harvey v. Mount, 8 Beav. 439. (p) Norton v. Belly, 2 Ed. 286 ; Huguenin v. Baseley, 14 Ves. 273, 2 Wh. & Tu. L. C. 6th ed 597 ; Noltidgc v. Prince, 2 Giff. 246. (?) Notiidge v. Prince, 2 Giff. 246 ; Kirwan v. Cullen, 4 Ir. Ch. Eep. 322, (r) Lyon v. Home, L. R. 6 Eq. 655. (s) 1 Bac. Abr. 137, n. ; 3 ibid. 780 ; Hunter v. Atkins, 3 My. & K. 113 ; Broun v. Kennedy, 33 Beav. 133, S. C, 4 D. J. & S. 217 ; Tate v. Williamson, L. E. 1 Eq. 528, S. C. L. R. 2 Ch. 55 ; Mullvany v. Dillon, 1 Ball & B. 409 ; Parfitt v. Lawless, L. E. 2 P. & D. 462. (5589) 504 MARKS OF UNDUE INFLUENCE. Trifling gift There is one limitation, however, to the application to person in of this general principle. A mere trifling gift to a per- confideniial gon w j 10 s t an d s j n a confidential or fiduciary relation, or a upheld mere trifling liability incurred in his favour, will be up- held by the Court, unless there be proof not merely of the influence derived from the relation, but of mala fides, or of an undue or unfair exercise of the influ- ence (t). This prin- It must be observed that neither the age nor the ca- ciple does not pacity of the person conferring the benefit, nor the na- depend on {ure f ^ ne benefit conferred, affect the application of capacitv f this general principle. Age and capacity are consider- donor, or on ations which may be of great importance in cases where nature of there is no confidential or fiduciary relation ; but they S^t- are of little, if of any, importance in cases to which this principle applies. And as to the nature of the benefit, [ * 496] the injury * done to the person by whom the benefit is conferred cannot depend upon its nature (u). What undue As to what amounts to undue influence and fraud, it influence is evident that no general rule can be laid down. This consists in. j s a question for the judge to decide upon the circum- stances of each particular case (v). The following circumstances have been regarded as in a special degree probable marks of undue influence and fraud : — The fact that the donor has not had any independent advice (w), the improvidence of the transaction (x), the (0 Rhodes v. Bale L. R. 1 Ch., per Turner, L.J., 258 ; and see Pollock, Cont. 4th ed. 596. fa) Rhodes v. Bale, L. R. 1 Ch. 257, per Turner, L.J. 258. (r) Kerr, Fraud & Mis. 2nd ed. 159-162. (w) Griffiths v. Robins, 3 Mad. 191 ; Dent v. Bennett, 4 My. & Or. 269, 273 ; Harvey v. Mount, 8 Beav. 439 ; Page v. Home, 11 Beav. 227; Sturge v. Sturge, 12 Beav. 229, 239; Thornier v. Sheard, 12 Beav. 589 ; Cooke v. Lamotle, 15 Beav. 243 ; Gibson v. Russell, 2 Y. & C. C. C. 204 ; Sharp v. Leach, 31 Beav. 491 ; Rhodes v. Bate, L. R. 1 Ch. 252 ; Armstrong v. Armstrong, Ir. R. 8 Eq. 1 ; King v. Anderson, Ir. R. 8 Eq. 625; Turner v. Collins, L. R. 7 Ch: 329 ; Moxon v. Payne; L. R. 8 Ch. 881 ; Kempson v. Ashbee, L. R. 10 Ch. 15 ; Bainbrigge v. Browne, 18 Ch. D. 188. (x) Bridgman v. Green, Wilm. 58, 62, S. C. 2 Ves. 626 ; Prideaux v. Lonsdale, 1 D. J. & S. 433 ; Harcey v. Mount, 8 Beav. 439 ; Sharp v. Leach, 31 Beav. 491 ; Mara v. Ray, W. N. (1872) 127 ; Couils v. Aeworth, L. R. 8 Eq. 558 : Wollaslon v. Tribe, L. R. 9 Eq. 44 ; Everitt v. Everill, L. R. 10 Eq. 405 ; Armstrong v. Arm- strong, Ir. R. 8 Eq. 1 ; Turner v. Collins, L. R. 7Ch. 329 : and see Beatson v. Beatson, 12 Sim. 281 ; Page v. Home, 11 Beav. 227. (5590) UNDUE INFLUENCE AS TO WILLS. 505 age of the donor, ■whether very voung or old, or in in- firm health (y), the amount of the gift, and its propor- tion to the total amount of the donor's property (s), the statement of a fictitious valuable consideration (a), the deed having been obtained in order to meet one particular purpose and afterwards being made use of by the donee for another purpose (b), the fact that the effect of the gift or voluntary settlement was not really understood by the donor (c), and the fact that * there is no power of revocation in the deed, [ * 497] and that this omission haB not been brought to the notice of the donor (d). In cases where a confidential or fiduciary relation ex- If a confiden- isted between the parties at the time the gift or volun- tia .l relation tary settlement was made, the Court always pays espe- exl sts, ijn- portant how cial regard to the question how the intention of the i n i en u on to donor was produced; and considers whether the cireum- give is pro- stances shew that all that care and providence was duced. placed round the donor, as against those who advised him, which, from their situation and relation with re- spect to him, they were bound to exert on his behalf (e). The influence which is undue in the case of a gift or Undue in- voluntary settlement made inter vivos is very different fluence as to from that which is required to set aside a will (/). Wills, (y) Griffiths v. Robins, 3 Mad. 191 ; Wright v. Proud, 13 ,Ves. 136 ; Anderson .v. Elsworth, 3 Giff. 154 ; Prideaux v. Lonsdale, 1 D. J. & S. 433 ; Everitt v. Everitt, L. R. 10 Eq. 405 ; Kempson v. Ashbee, L. R. 10 Ch. 15 ; Bainbrigge v. Browne, 18 Ch. 188, ante, pp. 488, 489 ; Gibson v. Russell, 2 Y. & C. C. C. 204. (z) Bridgman v. Green, Wilm. 58, S. C. 2 Ves. 626 ; Rhodes v. Bate, L. R. 1 Ch. 258 ; but see ante, p. 461. (a) Bridgman v. Green, Wilm. 58, S. C. 2 Ves. 626 ; Gibson v. Russell, 2 Y. & C. C. C. 204 ; Wyse v. Lambert, 16 Ir. Ch. Rep. 378 ; Sharp v. Leach, 31 Beav. 491 ; Hughes v. Seanor, 18 W. R. 108, 1122 ; and see ante p. 267. lb) Young v. Peachy, 2 Atk. 254. (e) Huguenin v. Baseley, 14 Ves. 300 ; Cooke v. Lamottc, 15 Beav. 243 ; Billage v. Southce, 9 Hare, 534 ; Price v. Price, 1 De G. M. & G. 308 ; Anderson v. Elsworth, 3 Giff. 154 ; Sturge v. Sturge, 12 Beav. 229 ; Lyon v. Home, L. R. 6 Eq. 655 ; Coults v. A cworth, L. R. 8 Eq. 558 ; Wollaston v. Tribe, L. R. 9 Eq. 44 ; Kempson v. Ashbee, L. R. 10 Ch. 15 ; Bainbrigge v. Browne, 8 Ch. D, 188. (d) Post, pp. 499 et. seq. (e) Per Lord Eldon in Huguenin v. Baseley, 14 Ves. 300 ; Arm- strong v. Armstrong, Ir. R. 8 Eq. 134 ; Turner v. Collins, L. R. 7 Ch. 329, 339; Bainbrigge v. Browne, 18 Ch. D. 188; Taylor v. Johnston, 19 Ch. D. 608-609; ante, p. 483. • (/) Hindson v. Weatherill, 5 De G. M. & G. 301, 311, 313 ; • Raworth v. Marriott, 1 My. & K. 643; Parfitt v. Lawless. L. R. 2 P. & D. 462; but see Walker v. Smith, 29 Beav. 394. (5591 ) 506 UNDUE INFUENCE AS TO WILLS. The undue influence which is adequate to set aside a will must be such a pressure as to overpower the voli- tion without convincing the judgment; so that the tes- tator's will, or the part of it impeached, is not the record of the testator's volition, but of some other per- son (g). To render influence legally undue there must be coercion (h). The natural influence of persons who hold a confi- dential or fiduciary position in regard to the testator may lawfully be exerted to obtain a will or legacy, so long as the testator thoroughly understands what he is doing and is a free agent (i). _ . „ Undue influence in the case of a will is never pre- proof gener- sumed whatever may be the position of the person who allyonperson receives the benefit. In general, the burden of proof alleging un- { un( Jue influence lies on the person who alleges it (fc), ence™^" [ * 498] but to this rule there is one exception. * A person who takes a benefit under a will which he has been instrumental in preparing or obtaining has thrown on him the onus of shewing the righteousness of the transaction (I). What must It must also be proved that the will or legacy was ob- be proved. tained by means of this undue influence or coercion (m) exercised in relation to the will itself, and that the circumstances which attended the execution of the will are inconsistent with any other hypothesis than that of undue influence (n). Will set aside A- w iH ma y be set aside, wholly or in part only, on wholly or the ground of undue influence or fraud (o). The grant in part. f probate, not recalled, is conclusive proof that the will is the true will of the testator, and after such grant (Si) Stulz v. Sehsefle, 16 Jur. 909; Hall v. Bell, L. E. 1 P. & D. 481; Parfitt v. Lawless. L. R. 2 P. & D. 462, 470; and see Boyse v. Eosshorough, 6 H. L. C. 48, 49; Williams v. Goude, 1 Hagg. E. 581. (h) Wingrove v. Wingrove, 11 P. D. 81. (t) Parjill v. lawless, L. R. 2 P. & D. 469, 470. (k) Boyse v. Eosshorough, 6 H. L. C, per Lord Cran worth, 49 ; Parfitt v. Lawless, L. R. 2 P. & D. 470. (I) Ashwell v. Lomi, L. R. 2 P. & D. 477; Fulton v. Andrews, L. R. 7H. L., per Lord Hatherly, 472; Hegarly v. King, 5 L. R. Ir. 249, S. C. 7 L. R. Ir. 18. (to) Jones v. Godrich, 5 Moo. P. C. 40; Parfitt v. Laivless, L. R. 2 P. & D. 462; Wingrove v. Wingrove, 11 P. D. at p. 83. t(») Boyse v. Eosshorough, 6 H. L. C. 51 ; Longford v. Purdon, 1 L. R. Ir. 81; and see Kerr, Fraud & Mis. 2nd e'd. 297 et seq. (o) Hegarly v. King, 5 L. R. Ir 249, S. C. 7 L. It. Ir. 18; Allen v. M'Pherson, 1 H. L. C. 191. (5592) POWERS OF REVOCATION. 507 the will cannot be set aside on the ground of fraud or undue influence. The Probate Division of the High Court of Justice Exclusive has exclusive jurisdiction on the question whether a jurisdiction will or any part of it was obtained by fraud or undue °j. p . rob ate influence (p); and such question should be raised when probate is applied for: It is conceived that the foregoing principles apply Rules as to to cases where the will or legacy has been obtained *J ndue lr >- Ti 11 i-*n Of* n ti fi either by fraud or by undue influence. Fraud may or f rau( j may not be a species of undue influence. Undue influ- whether the ence to invalidate a will means coercion, but fraud in- same, eludes misrepresentation, which may consist as well in a mere concealment as in a positive misrepresentation of fact (q). The view the Court takes of the question, whether Power of a voluntary settlement is voidable if it does not contain revocation, a power of revocation, is different according as the set- tlement is impeached by persons who claim adversely to the settlor, or is impeached by the settlor or persons who claim under him (r). *If it be impeached by a creditor (s), or a [*499 J When settle- purchaser .(t), who of course claim adversely to the ment im- settlor, the Court considers whether the provisions in P eacnecl bv the voluntary settlement are proper, having regard to claiming the position of the settlor ; and from this point of adversely to view the Court considers a power of revocation in such settlor, a settlement as a great mark of fraud against third per- sons (u). It' was formerly held that the mere absence of a by settlor or power of revocation in a voluntary settlement was P er . sons almost an adequate ground of itself for setting that un a er n f m . settlement aside as against the settlor or persons who claim under him, as procured by fraud or undue influ- ence, of which the absence of this power was regarded (p) Allen v. M'Pherson, 1 H. L. C. 191 ; Meluish v. Milton, 3 Ch. D. 37; and see Theol*ald, Wills, 3rd ed. G.3 ; Jud. Act, 1873, s. 34. (g) See Parfitt v. Lawless, L. R. 2 P. & D. 470, 471 ; Boyse v. Bossborovgh, 6 H. L. C. 48, 49; Meluish v. Milton, 3 Ch. D. 27. (r) Dutton v. Thompson, 23 Ch. D., per Cotton, L. J., 283. (s) Ante, pp. 76, 111. («) Ante, pp. 209 et seq. (u) Dutton v. Thompson, 23 Ch. D. 278. (5593) 508 POWERS OF REVOCATION. as an almost certain sign. So Lord Hardwicko said : "No power of revocation being reserved in a voluntary- conveyance hath always been held in this Court as a great ingredient in a charge of fraud for setting such conveyances aside, though this alone is not sufficient for the purpose " (v). Taker v. In Toker v. Toker (w), however, a voluntary settle- Taker. menfc without power of revocation, executed by an aunt in favour of her nephew, and impeached by her as pro- cured by the undue influence of her nephew, was up- held on the ground that it was intended to be irrevoca- ble. Lord Justice Turner there laid down the princi- ple that the absence of a power of revocation was a cir- cumstance to be taken into account in determining such cases, and was a circumstance of more or less weight according to the facts of each particular case. Phillips v. This principle was followed in Phillips v. Mullings (x), Mullings. where a young man of improvident habits, and only twenty-two years of age, was induced to make a voluntary settlement without power of revocation of a part of his money, which he afterwards impeached [ *500 ] *on the ground that he did not understand its nature. The settlement was upheld, a power of revo- cation in the circumstances being useless. Lord Hath- erley, L.C., pointed out that whether there should be a power of revocation or not must depend upon the cir- cumstances ; and that it could not be laid down as a general rule that such a deed would be voidable unlesB it contained a power of revocation. Hall v. Hall. The authorities on this point were carefully reviewed, and Toker v. Toker (y) followed, by James, L.J., in the case of Hall v. Hall (z), where his Lordship said : " The true rule is that which was laid down by Lord (?;) Philips v. Philips, Coxe, MSS. B. B. 18 ; and see Huguenin v. Baseley, 14 Ves. 296 ; Thornhill v. Evans, 332, as stated in the Index, tit. Fraud ; Coults v. Aeworth, L. R. 8 Eq. 588 ; Wollaston, v. Tribe, L. JR. 9 Eq. 44 ; EverM v. Ererilt, L. R. 10 Eq. 405 ; Mounlford v. Keene, 19 W. R. 708 ; Hewlw.ll v. Fereday, 21 W. R. 240 ; Haran v. Macmahon, 15 L. R. Ir. 471 ; and see Nanney v. Williams, 22 Beav. 452 ; Foreshaw v. Welsby, 30 Beav. 243 ; Anderson v. Elswarth, 3Giff. 154 ; Sharp v. Leach, 10 W. R. 878; Dav. Prec. 3rd ed. vol. 3, 696 et seq. ; Kerr, Fraud & Mis. 2nded. 159-162. (w) 31 Beav. 629, S. C. 3 D. J. &S. 487. (x) L. R. 7Ch. 244. (y) 3 D. J. & S. 487. (z) I,. R. 8 Ch. 430. (5594) POWERS OF REVOCATION. 509 Justice Turner in Toker v. Toker (a), that the absence of a power of revocation is a circumstance to be taken into account, and is of more or less weight according to the other circumstances of each case " (6). This view has been also recently followed with ap- proval by the Court of Appeal in Ireland in Armstrong v. Armstrong (c). The Court considers in each particular case whether Was the the voluntary settlement was the free determined act voluntary of the settlor, and, if upon the evidence such appears settlement to have been the case, the Court will uphold the settle- f settlor 1 ? ment and not enter into the question whether it con- tains provisions which were not proper to be inserted in such a settlement. It is not the provinae of a Court of Justice, said Jessel, M.R., in Button v. .Thompson (d), to decide on what terms or conditions a man of competent under- standing may choose to dispose of his property. If he thoroughly understands what he is about, it is not the dutj of a Court of justice to set aside a settlement which he chooses to execute, on the ground that it con- tains clauses which are not proper. The question, therefore, in each case ip, did the set- tlor really -understand the effect of the voluntary settle- ment he executed ? * It is from this point of view only that the [ * 501]. Absence of omission of the power of revocation becomes material,. P°werraay.be and may be a reason for setting. such settlement aside. ™ undue It may be evidence that the settlor did not really un- influence., derstand what he was doing, and so of undue influence (e) ; but whether it would be so or not would of course depend upon all the circumstances of the case. So it would be material if it was proved that the settlor did. not intend an irrevocable settlement, that the settle- ment was not intended in the event which actually hap- (a) 3D.J.& S. 487, 491. (b) L. R. 8Ch. 438; Henry v. Armstrong, 18 Ch. D. 668. (e) Ir. R. 8Eq. 1,45. (d) 23 Ch. D. 281 ; but see Phillips v. Mullings, L. R. 7 Ch. atr p. 248. (e) Toker v. Toker, 3 D. J. & S. 491 ; Dutton v. Thompson, 23' Ch. D., per Jessel, M.R., 281 ; and see Mara v. Ray, "W. N. (1872) 127. 38 STAT. OF ELIZ. (5595) 510 WHO CAN SET ASIDE pened (/), or if the settlement itself were such, or made under such circumstances, as to be unreasonable and improvident, apart from any question of undue influ- ence (g). Voluntary So a voluntary settlement without a power of revoca- Set ^ e ^ eU -?h ^ on k as been upheld against the settlor, although the out power of s °li c itor who prepared the deed never called the atten- revocation. tion of the settlor to the fact of its omission, or advised its insertion (h). So an irrevocable voluntary settle- ment made by a man of almost all his property when about to engage in business on the Stock Exchange was upheld against him, because the object of that deed,was to protect his wife and children, and the insertion of the power of revocation would have been inconsistent with this (»). So where it is proved that the settlor intended to make an irrevocable voluntary 'settlement, the absence of a power of revocation is immaterial (A;) ; as where the object of the settlement was to protect the settlor against the importunity of his relations (I), or to pre- vent property from devolving on particular people (m), or to protect the settlor, who had only just attained his majority, against his own extravagant and improvident habits (n). Where a testator had executed a voluntary declara- tion of trust by which he had given his wife a power [ * 502 ] of appointment, and had * kept it under his control, and at his death the deed could not be found, the Court would not infer that the lost deed contained a power of revocation (o). able. Probate duty It may be mentioned that by the Customs and Inland when pay-- Eevenue Act, 1881 (p), if a life interest, or an absolute power of revocation, is reserved to a settlor who dies (/) Nanney v. Williams, 22 Beav. 452 ; Forshaw v. Welby, 30 Beav. 243. (g) Hall v. Hall. L. E. 8 Ch., per Lord Selborne, L.C., 440. (h) Toker v. Taker, 3 D. J. & 8. 487, 492; Hall v. Hall, L. E. 8 Ch. 430 ; and see IJaran v. Macmahon, 15 L. E. Ir. 471. (i) Henry v. Armstrong, 18 Ch. D. 668. (k) Hall v. Hall, L. E. 8 Ch. 437, 438, 440 ; Armstrong v. Arm- strong, Ir. Eep. 8 Eq. 1. (1) Procter v. Gregg, 21 W. E. 240, n. (m) Long v. Donegan, 21 W. E. 830. (n) Phillips v. Mullings L. E. 7 Ch. 244, 248 ; Bell v. Thomp- son, "W. N. (1878) 121. (o) In re Booker, 34 W. E. 346. (p) 44 Vict. c. 12. s. 38 (2) C. (5596) VOIDABLE DEED, AND WHEN. 511 on or after June 1, 1881, in a settlement of personal es- tate, such personal estate will be liable to probate duty. A marriage settlement •will not be set aside on the Effect of ground of undue influence or fraud as against a party undue in- innocent of that undue influence or fraud (a). fluence or fraud on marriage The general rule, that a gift or voluntary settlement settlements. ' obtained by undue influence or fraud is voidable at the option of lie donor, applies, however, to all the limita- tions in a marriage settlement which are voluntary (r). The volunteer stands in the same position as if he took under an instrument which contained no limitation for value. The right to set aside a deed voidable on the ground who can set of undue influence or any of the other causes noticed aside void- above may be exercised by the donor's executor (s), by a1sle deed - his devisee (t), by his heir (w), by his residuary lega- tee (v), or by his trustee in bankruptcy (w). The representatives of a donor cannot after his death set aside a gift or voluntary settlement made by him which if he had lived he himself would not have set aside (x) ; but of course if the donor has complained of the transaction, and has in his lifetime started pro- ceedings to annul it, his representative will be treated as standing exactly in his place, and such deed may be set aside even as against the representatives of the donee (y). * It seems, however, that the Court will not [* 503 J Third persdn set aside a deed which is voidable on any of these cannot. grounds at the instance of any third person who sets up such ground (z) (q) Barrow v. Barrow, 2 Dick. 504 ; Kevan v. Crawford, 6 Ch. D. 29 ; ante, p. 91. (r) Wollaston v. Tribe, L. R. 9 Eq. 44 ; Maunsell v. Mawnsell, 1 L. K. Ir. 529, 539 ; ante, pp. 342, 358. (g) Hunter v. Atkins, 3 My & K. 113 ; Mountford v. Keene, 19 W. R. 708. (I) Gresley v. Momley, 4 De G. & J. 78. («) Holman v. Lynes, 4 De G. M. & G. 270 ; Anderson v. Els- worth, 3 Giff. 154. (v) Long v. Donegan, 21 W. R. 830 ; Coutts v. Acworth, L. R. , 8 Eq. 558. (w) Ford v. Olden, L. R. 3 Eq. 461. (x) Mitchell v. Homfray, 8 Q. B. D. 591, per Lord Selborne, L.C. ; and see Wright v. Vanderplant, 8 De G. M. & G. 133. (y) Phillipson v. Kerry, 32 Beav. 623. S. C. 637. (z) Poll. Cont. 4th ed. 594; and see In re Metcalfe's Trusts, 2 D. J. & S. 122; Larrett v.Bank of England, W. N. (1886) 47. (5597) 512 WHO CAN SET ASIDE Principle ceases to apply Tvhen confidential relation is over. This principle, that a gift or voluntary settlement made to or in favour of a person who occupies a confi- dential or fiduciary position in relation to the donor is voidable at the option of that donor, of course does not apply if, at the time the gift or voluntary settlement is made, that relation has entirely ceased, and the donor is no longer subject to its influence (a). The difficulty is in such cases that although the rela- tion may have actually ceased, yet, as the person who once stood in that relation to the donor still retains the knowledge he so acquired, he does not by merely giving up his office at once divest himself of his confidential or fiduciary character (6). What is proof "When a relation of confidence is once established, that relation either some positive act or some complete case of aban - has ceased. (3 onmen t must be shewn in order to determine it. The mere fact that the relation is not called jnto action is not sufficient of itself to determine it, for this may well have arisen from there having been no occasion to resort to it(c). Must relation It does not appear to have been decided whether, if he over in all confidential or fiduciary relation has merely ceased in respects or relation to the particular gift or voluntary settlement, ™ jm/ref thegiftor voluntarysettlementwillbeupheld, or whether it must have ceased in .all respects (d). Third per- sons can take no benefit under gilt or volun- tary settle- ment void between the parties. The Court will not allow third persons, who claim as volunteers, to take any benefit under a gift or voluntary settlement declared void between the parties to it on the [ * 504 ] ground of fraud or undue * influence, although such third persons were in no way parties to the fraud or undue influence (e). So a person taking a lease granted by the lessor to his agent with notice of the existing relation has the same (a) Buguenin v. BaseTey, 14 Ves. 273, 299; Richards v. French, 22 L. T. (N.S.) 329; Tate v. Williamson. L. R. 2 Ch. 55, 65; Mitch- ell v. Homfray, 8 Q. B. D. 587; Kerr, Fraud & Mis. 2nd ed. 330, ante, pp. 484, 488. (6) See Carter v. Palmer, 8 CI. & F. 657, 705; Be Holmes' Estate, 3 Giff. 345, 346. (c) Rhodes v. Bate, L. R. 1 Ch. 259, 260; and see Mitchell v. Homfray, 8 Q. B. D. 587. (d) Tormon v. Judge, 3 Drew. 316; Rhodes v. Bate, L. R. 1 Ch. 259, 260; ante, p. 493. (e) Bridgman v. Green, Wilm. 58, 64-5, S. C. 2 Ves. 626; Bu- guenin v. Basely, 14 Ves. 273; Scholefield v. Tempter, Joh. 155; Smith v. Kay, 7 H. L. C. 750; Rhodes v. Bale, L. R. 1 Ch. 258. (5598) VOIDABLE DEED, AND WHEN. 513 liability cast upon him as the agent had, and the onus of proving that it was not obtained by undue influence on the agent's part (/). So a person getting security from one to whom his debtor stands in a confidential re- lation of which he has notice, must prove that no undue influence was exerted and that the transaction was fully understood by the person giving the security (g). Where the donee stands in a confidential or fiduciary Against relation to the donor, the inference of undue influence whom does operates against the person who is able to exercise that inference of influence, and also against every person who claims un- *j ndue ln " der him with notice of the equity thereby created, or opera t e ? with notice of the circumstances from which the Court infers the equity (ft). This inference of undue influence does not, however, operate against any other person. So it would not oper- ate against a person who is not shewn to have taken with notice of the circumstances under which the gift or vol- untary settlement was made (i). So a payment to a creditor of the father voluntarily made by his daughter six months after she came of age, to whom knowledge of undue influence exercised by the father on his daughter could not be imputed, was up- held (&). A person who is a bona fide purchaser in the first in- stance for * valuable consideration without no- [ * 505 ] tice; if the consideration be not a debt already due, is protected (I); and so of course is a bona fide purchaser for value without notice from the donee (m). (/) Molony v. Kernan,2 D. & War. 31, 40-41. (g) Rhodes v. Cook, 2 Sim. & St. 488; Maitlandv. Irving, 15 Sim. 437; Maitland v. Backhouse, 16 Sim. 58, S. C. 63; Archer v. Hudson, 7 Beav. 551; Baker v. Bradley, 2 Sm. & Giff. 531, S. C. 7 Ue G. M. & G. 597; Espeyv. Lake, 10 Hare, 260; Berdoe v. Dawson, 34 Beav. 603; Sercombe v. Sanders, 34 Beav. 382; and see Ardglasse v. Muschamp, 1 Vern. 237; Bolfe v. Gregory, 34 L. J. (N.S.) Ch. 274; Wyse v. Lambert, 16 Ir. Ch. Eep. 378; Kempsonv. Ashbee, L. E. 10 Ch. 15. (h) Bainbrigge v. Browne, 18 Ch. D., per Fry, J., 197; and see Kempson v. Ashbee, L. E. 10 Ch. 21. (i) Bainbrigge v. Browne, 18 Ch. D., per Fry, J., 197. [k) Thornber v. Sheard, 12 Beav. 589; and see Vorbeit v. Brock, 20 Beav. 524, S. C. 531; Bentley v. Mackay, 31 Beav. 143, S. C. 4 D. F. & J. 279. (1) Blackie v. Clark, 15 Beav. 595, 601; and see Bainbrigge v. Browne, 18 Ch D. 199. (to) Greenslade v. Dare, 20 Beav. 284; Corbett v. Brock, 20 Beav. 524, 530, S. C. 531. (5599) 514 VOIDABLE DEED, Gift or voluntary settlement how confirm- ed. By act inter x;vos: It appears doubtful whether a gift or voluntary set- tlement can be set aside, on the ground of undue in- fluence, if the influence has been exercised, not by the person who obtains the benefit, but by a third person who derives no benefit whatever («). In the application of the foregoing principles there is no distinction between the case of a person who him- self exercises a direct undue influence, and of a person who makes himself a party with the person who exer- cises that undue influence (o). A gift or voluntary settlement originally voidable on the ground of undue influence or any of the other causes noticed above (p), may be confirmed and ren- dered unimpeachable by the donor in either of two ways. 1. The donor may confirm the transaction by his subsequent acts, whether inter vivos, or by his will. In Crowe v. Ballard (q) Lord Thurlow said: "If a gentleman of rank, fortune, and honour, under age, in distress, or otherwise, gives a bond, and afterwards conceives that he has made a hard bargain, and, know- ing that a bond is bad, will give a new bond, that will maintain possession of the right of the holder of the bond, and this act shall be said to be a confirmation; but not any act done under the influence of the former transaction, and the opinion that the bond is good." In Moxon v. Payne (r), James, L.J., laid down the principles by which the question of confirmation of any voidable transaction was examined by the Court. To [ * 506] uphold such transaction * there must be full knowledge of all the facts, full knowledge of the equit- able rights arising out of those facts, and an absolute release from, the undue influence by means of which the frauds were practised. To make a confirmation or (») Wycherleyv. Wyeherley, 2 Eden, 175; Bentleyv. Mackay, 31 Beav. 143, S. C. 4 D. F. & J. 279. (o) Ardglasse v. Pitt, 1 Vern. 238; Espey v. Lake, 10 Hare, 260; Wyse v. Lambert, 16 Ir. Ch. 379; and see Kemp'son v. Ashbee, L. E. 10 Ch. 15. (p) Cann v. Cann, 1 P. Wms. 723, 727; Cole v. Gibson, 1 Ves. 503, 507; Stump v. Gaby, 2 De G. M. & G 623; Jarralt v. Aldam, L. E. 9 Eq. 463; Sandeman v. Mackenzie, 1 J. & H. 613; ante, p. 496. (q) 3 Bro. C. C. 117. (r) L. E. 8 Ch. 881, 885. (5600) HOW CONFIRMED,, 515 compromise of any 'value the parties must be at arm's length, on equal terms, with equal knowledge, and with sufficient advice and protection. So where a young lady, scarcely twenty-one years of age, executed a bond voidable on the ground of undue influence, and six years afterwards, under clear pres- sure, executed a new bond for the same purpose, the new bond was declared void (s). The person who elects to confirm the voidable transaction must know that it was voidable at his option; and must elect to confirm it as a free unbiassed act (t). If there is no knowledge of the invalidity of the transaction, that in- validity cannot be cured by confirmation of it. It is not necessary that the transaction be formally ratified, if it can be proved to have been adopted with the determination not to impeach it {u). Of course, where a person confirms a portion of a deed, with nothing more, that operates as a confirma- tion of the whole transaction (i>). A gift or voluntary settlement originally voidable or by Will. may also be wholly or in part confirmed by the donor's will, whether the confidential or fiduciary relation has ceased before the death of the donor (iv) , or still sub- sists at his death (x), unless the will is merely part of the same scheme (y). 2. The donor may also confirm the transaction by By acquie- mere acquiescence, without any positive act of con- scence. firmation (z). *Acquiescence in' a transac- [ * 507] tion impeachable on the ground of ignorance of rights, mistake, or misapprehension, after a full knowledge of (s) Kempson v. Ashbee, L. R. 10 Co. *15; ante, p. 489. (0 Cocking v. Pratt, 1 Ves. 401; Wood v. Dowries, 18 Ves. 122, 128; Roche v. O'Brien, 1 Ball & B. 330, 339, and cases there cited; Dunbar v. Tredenneck, 2 Ball & B. 304, 317; Savery v. King, 5 H. L. C. 627; Mitchell v. Homfray, 8 Q. B. D. 587. (u) Wright v. Vanderplank, 8 De G. M. & G. 147; Mitchell v. Homfray, 8 Q. B. D. 591. (v) Milner v. Harewood, 18 Ves. 259, 277; Jurratt v. Aldam, L. E. 9 Eq. 463. (w) Mitchell v. Homfray y 8 Q. B.* D. 587; and see Bizzey v. Flight. 3 Ch. D. 269. (x) Stump v. Gaby, 2 De G. M. & G. 623. ly) Waters v. Thorn, 22 Beav. 547 ; Lyon v. Home, L . E. 6 Eq. 655. \z) Wright v. Vanderplank, 2 K. & J. 1, S. C. 8 De G. M. & G. 146-7. (5601) 516 those rights has been, obtained, or the person who could have set aside the transaction has become aware of his mistake, will confirm the transaction and render it unimpeachable (a). Again, a gift obtained by fraud or undue influence cannot be set aside by the donor, if, after he has be- come aware of the fraud, or after the influence by which the gift was obtained has ceased, or the confidential or ■fiduciary relation has terminated, he has acquiesced in the transaction, knowing at the same time of his power to set it aside (b). But an agreement which is made inoperative by a collateral fraudulent agreement cannot be set up as valid by abandoning the collateral agreement (c). The onus lies on the person who sets up acquiesence as a defence to prove the facts from which it can be in- ferred (d). Delay when Delay where it does not operate as a statutory or a bar. positive bar operates simply as evidence of assent or acquiescence (e). In considering the question of mere delay two most important circumstances are, the length of the delay, and the nature of the acts done during the interval. The question is always one of the cir- cumstances of each particular case, and no more pre- cise rule seems possible (/). In general, no lapse of time, however great, will pro- tect the parties to a fraud which is clearly proved (g). In special cases mere lapse of time has been held un- (n) Hoghton v. Hoghton, 15 Beav. 278, 314; Life Association of Scotland v. Siddal, 3 D. F. J. 74; Earl Bcauchamp v. Winn, L. R. 6 H. L. 234, 235; and see- Kerr, Fraud & Mis. 2nd ed. 332etseq. (6) Wright v. Vanderplank, 2 K. & J. 1, S. C. 8 De G. M. & G. 133, 141, 148; Blagrave v. South, 2 K. & J. 509, S. C. 8 D. M. & G. 620, 626; O'Brien v. Lewis. 4 Giff. 221. (c) Moxon v. Payne, L. R. 8 Ch. 881, 886. (d) Life Association of Scotland v. Siddall, 3 D. F. & J. 77, per Lord Campbell, L.C. (e) Life Association of Scotland v. Sidd.all, 3 D. F. & J. 72. (/) Lindsay Petroleum Co. v. Hurst, L. R. 5 P. C. 241, 242; and Erlanger v. New Sombrero Phosphate Co., 3 App. Cas. 1279, per Lord Blackburn; see Kerr, Fraud and Mis. 2nd ed. 332 et seq. (g) Bandon v. Becher, 3 CI. & F. 479; Bowen v. Evans, 2 H. L. C. 257, 282; and see Hatch v. Hatch, 9 Ves. 292; and Turner v. Collins, L. R. 7 Ch. 342. (5602) HOW CONFIRMED. 517 der the * circumstances sufficient to prevent a [*. 508] deed being set aside on the ground of fraud, or undue influence, or of the existence at the date of the deed of a confidetial or fiduciary relation between the parties. But during the continuance of the relation, less weight is given to the. lapse of time than is justly due to it when no such relation subsists (h). So where forty years had elapsed between the trans- action complained of and the institution of the suit to impeach it, the confidential or fiduciary character on which relief was founded having de facto ceased for a long period, evidence having been lost, and the posi- tion of matters materially altered, Sir G. J. Turner, V.C, dismissed the bill, saying (i): "Under these cir- cumstances I think I should not be going too far in holding that this bill ought to be dismissed upon the ground of length of time only." In Turner v. Collins (fc), a deed of gift from a son to his father made in 1855, but not impeached by the son till 1869, although he had complained of it and had taken advice in 1862, was upheld, except as to a par- ticular power which was struck out of the deed. And where there has been laches and acquiescence, after the confidential or fiduciary relation has been completely dissolved, the Court will not relieve (Z). And delay is a bar when during the interval the rights and liabilities of others have been varied (to). But lapse of time will hot prevent relief where the Delay when influence, by an undue exertion of which the gift or not a bar - voluntary settlement was obtained, exists until the ac- tion is brought. So delay is no bar when, having re- gard to all the circumstances of the case, it is not un- reasonable. In Kempson v. Ashbee (n) a young lady in 1859 joined her stepfather in a bond as his surety td mature in six years. In 1866, under pressure from (h) See Gresley v. Mousley, 4 De G. & J. 95-96. (i) In Beaden v. King, 9 Hare, 499, 533; and see Wright v. Vanderplank, 2 K. & J. 1, S. C. 8 De G. M. & G. 133, 146-7, 149; Clanricarde v. Henning, 30 Beav. 175. (k) L. E. 7 Ch. 329; ante, p. 489. (0 Blagrave v. Bouth, 2 K. & J. 509, S. C. 8 De G. M. & G. 620; Turner v. Collins, L. E. 7 Ch. 341-342. (m) Bidgway v. Newslead, 3 D. F. & J. 483-484. (»i) L. E. 10 Ch. 15; ante, p. 489. . (5603) 518 VOIDABLE DEED, HOW CONFIRMED. [* 509] him, she joined in * executing a new bond as his surety for the sum then due and arrears of interest. ' In 1872 active proceedings were first taken against her, when she at once filed a bill to impeach the bonds, which were held void against her. And coverture is only in any case not within the Married Women's Property Act, 1882, an excuse for delay (o). Mere delay matters little or nothing so long as the position of all the parties to the transaction is not in any substantial way altered, whether by delay, or by anything done during the interval (p). And of course delay is immaterial so long as the person delaying does not know his rights, or is ignorant of the fact that the transaction can be impeached (q). To lose a remedy by laches or delay, it is, if not universally, at all events ordinarily necessary that there should be sufficient knowledge of the facts constituting the title to relief (r). (o) Hatch v. Hatch, 9 Ves. 292; Wollaston v. Tribe, L. E. 9 Eq. 44. But see now 45 & 46 Vict. c. 75; Lowe v. Fox, 15 Q. B. D. 667. (p) Wollaston v. Tribe, L. E. 9 Eq. 44, 50; Ridgway v. New- stead, 3 D. F. & J. 485; Lindsay Petroleum Co. v. Hurd, L. E. 5 P. C. 239-240; King v. Anderson, I. E. 8 Eq. 615. (q) Cocking v. Pratt, 1 Ves. 401 ; Wood v. Downes, 18 Ves. 122, 130; Roche v. O'Brien, 1 Ball & B. 330, 342, where a deed con- firmed by a subsequent deed was set aside after thirty-four years; D'Arcy v. D'Arcy, 1 Hayes & J. 115- Morse v. Royal, 12 Ves. 373, 374; Life Assurance of Scotland v. Siddall, 3 D. F. & J. 58; Sug. V. & P. 14th ed. 252-3. (r) Lindsay Petroleum. Co. v. Hurd, L. E. 5 P. C. at p. 241. (5604) *PART VI. c * 511] MISCELLANEOUS POINTS, PRACTICE UNDER THE STATUTES OF ELIZABETH, AND COSTS. CHAPTER I. MISCELLANEOUS POINTS AND PEACTICE. As was decided by Lord Eldon (a), the Court will not Settlor restrain a man who has previously made a voluntary neither settlement of real property from 'selling it to a pur- restrained chaser; nor, on the other hand, will it in general help nor a id et i him to frustrate his own deed (b). If, however, the under 27 purchaser be willing to complete the purchase on hav- Eliz. c. 4. ing a good title shewn, as he can, by so doing, remove all objection to his title as regards the voluntary settle- ment, it seems that the Court will, in this exceptional case, enforce specific performance against him (c). Where the title depends on the invalidity of a previous voluntary instrument, the Court will not, at the instance of the author of that instrument, order specific perform- ance of a contract to sell for value against an unwilling purchaser (d). In such cases the Court remains neutral; it will not impede the sale whereby the vendor seeks to get rid of the voluntary settlement, nor will it assist him in doing so. The reasons why the Court will not in general en- force, on behalf of the voluntary settlor, *a con- [ * 512 ] tract for sale of that property, are these : it will not help him to avoid his own deed, and a vendor has no right (a) Pulvertoft v. Pulvertoff, 18 Ves. 84; Bartonv. Vanheythuysen, 11 Hare, 131; Soulier v. Williams, L. R. 20 Eq. 218. - (i) Clarke v. Willott, L. E. 7 Ex. 318; General Meal Supply Association v. Bouffler, 40 L. T. (N.S.) 126, S. C. 41 L. T. (N.S.) 719. (c) Peter v. Nicolls, L. E. 11 Eq. 391; Fry, Sp. Pf. 2nd ed. 176, 177. (d) Clarke v. Willott, L. E. 7 Ex. 318; Fry, Sp. Pf. 2nd ed. 176, 177. (5605) 520 SPECIFIC PERFORMANCE to insist on a purchaser making his title good by ac- cepting it (e). And the Court will not interfere actively against a volunteer through the medium of a person claiming only through him who created the voluntary settle- ment ( / ) ; for the voluntary conveyance is void only as against a purchaser. So, in general, a purchaser alone can induce the Court to lend its aid in removing it, and the settlor cannot enforce the specific performance of the contract (g) except as against a willing pur- chaser (h). t So a purchaser of property the subject of a voluntary settlement has been held entitled to recover back his deposit from the vendor (i). Settlor can- And where the settlor made a subsequent mortgage not cut down of the land in consideration of moneys to be then after- the settle- wards advanced, it *was held that declarations or ad- own*adia^- S m i ss i° ns > implied or expressed, of the mortgagor, were sions. not admissible as evidence after the mortgagor's, death that money had actually been advanced upon the mort- gage 0). • t The Court, however, under 22 & 23 Vict. c. 61, s. 5, will restrain a husband against whom a decree of divorce has been obtained from selling real estate com- prised in a post-nuptial settlement made by the husband which recited an ante-nuptial agreement, pending the result of an inquiry as to the settlement (I). Can creditors The question has been 'raised, but not decided, in of deceased Johnson v. Legard (m), whether the creditors of a vol- settlor en- ^^jy se ttlor after his death stand in a better position performance? U) Clarke v. Willott, L. E. 7 Ex. 313. (/) Per Lord Hatherly in Dolphin v. Aylward, L. E. 4 H. L. 486, 502. (g) Smith v. Garland, 2 Mer. 123, 127, where SirW. Grant acted upon the opinion he had previously expressed in Burke v. Dawson, Eolls, March 1805 (MS.); Sug. V. & P. 14th ed. 720; Johnson v. Legard, 3 Mad. 283; S. C. T. & E.'281; and see Hinton v. Hinton, 2 Ves. 631-3; Davenport v. Bishopp, 2 Y. & C. C. C. 451, S. C. 1 Phil. 698; Sug. H. L. 153; Doe v. Webber, 1 Ad. &E. 733; Eosher v. Williams, L. E. 20 Eq. 218; Fry, Sp. Pf. 2nd ed. 476, 177. (ft) Peter v. Nicolls, L. E. 11 Ex. 391. (t) Clarke v. Willott, L. E. 7 Ex. 313; General Meat Supply As- sociation v. Bouffler, 40 E. T. (K.S.) 126, S. C. 41 L. T. (N.S) 719. . (k) Doe v. Webber, 1 Ad. & E. 733, 740; ante, p. 219. (0 Watts v. Walts, 24 W. E. 623. (m) 3 Mad. 283, S. C. T. & E. 285. (5606) UNDER 27 ELIZ. c. 4. 521 than the settlor did, so as to be able to compel specific performance of a contract for sale entered *into [ * 513 ] by the settlor. It is conceived that, as their rights are those, and those only, of the settlor, and as the Court would not assist him to avoid his own deed, they could not compel specific performance of such a contract. But, on the other hand, specific performance of aa Contract of agreement to sell property previously the subject of a sale enforced voluntary settlement, will be ordered at the instance of ^ purchaser, the purchaser (n), So an equitable mortgagee's title will be enforced (o), even though he entered into the contract with notice of the settlement (p), and though the settlement was supported by meritorious considera- tion (q), and as against a legal estate vested in par- ties deriving under voluntary limitations in a marriage settlement (r). So a decree has been made though the settlor was a feme covert (s) ; and although the volunteers (a complete trust having been created) had filed a bill, which they could sustain, to have the trusts carried into execution, and although that suit was pending (t). A subsequent purchaser cannot enforce specific per- unless of formance of a contract for the sale to him of leasehold leaseholds, property, whether the only property, or merely a part (n) Leach v. Dean, 1 Ch. Rep. 78, and see the decree L. R. 1 Ch. 461 ; Parry v. Cawarden, 2 Dick. 544 ; Willats v. Busby, 5 Beav. 193; Baking v. Whimper, 26 Beav. 568 ; Currie v. Nind, 1 My. & Cr. 17, S. C. 5 L. J. (N.S.) Ch. 169, where the decree is given; Staekpoole v. Stackpoole, 4 D. &War. 320, 352-3; Buckle v. Mitchell, 18 Ves. 100 ; Lister v. Turner, 5 Hare, 281, 291 ; Bosher v. Williams, L. R. 20 Eq. 213. For the form of a decree enforc- ing (at the suit of a purchaser) an agreement to buy property the subject of a previous voluntary settlement, see Seton, 4th ed. 1374; and for decree against vendor (who had made a voluntary settlement of the estate) saving the rights of an absent claimant under the settlement, see Currie v. Nind, 5 L. J. (N.S.) Ch. 172, and Willats v. Bushy, 5 Beav. 200. (o) Ede v. Knowles, 2 Y. & C. C. C. 172, where the decree is given, p. 180; Lister v. Turner, 5 Hare, 281, wriere there was a contract to execute a legal mortgage with power of sale, and the property was ordered to be sold; see 5 Hare, 293 ; Seton, 4th ed. 1374. (p) Buckle v. Mitchell, 18 Ves. 100 ; -Butterfield v. Heath, 15 Beav. 408. (a)- Parry v. Cawarden, 2 Dick. 544 ; Shaw v. Standish, 2 Vera. 327. (r) Johnson v. Legard, 3 Mad. 283, S. C. T. & R. 281 ; Stack- poole, v. Stackpoole, 4 D. & War. 320, 352. (s) Butterfield v. Heath, 15 Beav. 408: ante, p. 284. (t) Pulverloft v. Pulvertnft, 18 Ves. 92; Metcalfe v. Pulvertoft, 1 V. & B. 180, S. C. 2 V. & B. 200; 2 Spence, Eq. Jur. 289. (5607) 522 SPECIFIC PERFORMANCE. against subsequent purchasers from him. Parties to action for specific per- formance. Permanent improve- ments when allowed for. of the property, comprised in a settlement ; for such settlement, so far as regards the leasehold property- comprised in it, is not voluntary (u). Where the vendor bought the property from the [ * 514] original settlor, *on a resale he can eompel a purchaser from him to complete the purchase, although the title depends on the invalidity of the first settle- ment (v). The reason of this seems to be that the Court acts on the presumption that the original settle- ment has not been made good by matter ex post facto (w). The general rule in an action for specific perform- ance of a contract is that all the parties to the contract are the only necessary parties to the action (x). Where, however, the action is brought by a purchaser against the voluntary settlor, the proper course seems to be to make defendants, not only the vendor, but also the trustees of the voluntary settlement, and the per- sons beneficially interested under it (y). The ground of this is that no purchaser of property subject to a settlement alleged to be voluntary would take the title without being satisfied that the settlement was void against him: it would otherwise be difficult to effect any sale of property comprised in a voluntary settle- ment; so that not to allow the volunteers to be made parties would go far to destroy the effect of the stat- ute (z). In granting relief against a person in possession un- der a title which is only constructively fraudulent, the Court will reimburse him for any permanent improve- ments (a), whether the relief is granted in favour of a (u) Marsh v. Earl Granville, 24 Ch. D. 25; In re LulJtam, 32 W. E. 1013, S. C. 33 W. R. 788; ante, p. 258. (v) Carrie v. Nind, 1 My. & Cr. 17 ; Butlerfleld v. Heath, 15 Beav. 408; Fry, Sp. Pf. 2nd ed. 391. (w) Fry, Sp. Pf. 2nd ed. 391. (x) Mole v. Smith, Jac. 490 ; Tosher v. Small, 3 My. & Cr. 63, overruling S. C. 6 Sim. 625 ; Fry, Sp. Pf. 2nd ed. 62, 73, 76, 80 ; In re Lulham, 32 W. R. 1013, S. C. 33 W. R. 788. (y) Holford v. Holford; 1 Ch. Ca. 217; Willats v. Busby, 5 Beav. 193; Lister v. Turner, 5 Hare, 281; Buckle v. Mitchell, 18Ves. 100; Daking v. Whymper, 26 Beav. 568 ; Fry, Sp. Pf. 2nd ed. 72 ; but see Fletclier v. Ketteman, 40 L. J. (N.S.) Ch. 624; Bosher v. Wil- liams, L. R. 20 Eq. 210. (z) Townend v. Tolcer, L. R. 1 Ch. 446, 457. (a) Shine v. Gfough, 1 Ball & B. 444. See Murray v. Palmer, 2 Sch. & Lef. 474, and cases cited in Wh. & Tu. L. C. 6th ed vol. 1, 209, 210. (5608) EVIDENCE OF DEBTS UNDER 13 ELIZ. C. 5. 523 creditor or a purchaser. But in cases where the con- veyance is actually fraudulent, such reimbursement will not be made (b). In America relief is given in similar cases to creditors, subject to the same liability to reim- burse a person in possession under a title which is only fraudulent by construction of law (c). * The question as to what evidence of con- [* 515 ] Evidence of sideration not mentioned in a deed is admissible in considera- support of it as a transaction for value has been al- ' ready discussed (d). So also the question of evidence of fraud, for or against a sheriff seizing or refusing to seize in spite of a fraudulent assignment or process of law has been dealt with (e). A schedule of debts filed by the settlor in his subse- Schedule quent insolvency is, of course, evidence as against him filed in in- of those debts, but is not evidence against the settlees, solvency. and therefore not sufficient to support a decree setting aside the settlement (/). The question what is evidence of a debt at the time „ . , , a settlement is executed is somewhat different from the debts under question who is a creditor so as to be entitled to im- 13 Eliz. c. 5. peach that settlement under 13 Eliz. c. 5. For, it must be borne in mind that, although a par- ticular creditor may not be able to impeach the settle- ment; still, if it be set aside at the instance of another creditor, the property comprised in it at once becomes assets for all the settlor's creditors, and not merely for the particular creditor who successfully impeached it(gr). So, Lord Cottenham said in Skarfv. Soulby (h) that in order to take any benefit from having been ■creditors at the date of the deed, the plaintiffs must al- lege a debt owing to them at that time. They may, however, take any benefit which may accrue to them from the fact of the settlor having been at that time in- debted to others. It is not necessary that the settlor's liabilities at the (ft) Kenney v. Browne, 3 Kidg. 518; Stratton v. Murphy, 1 Ir. R. Eq. 361. (c) Bump. Fr. Conv. (Amer.), 2nd ed, 599, 600. (d) Ante, p. 266. (e) Ante, pp. 174 et seq. (/) Townsend v. Weslcolt, 2 Beav. 340, 345, S. C. 4 Beav. 58 ; Barling v. Bishopp, 29 Beav. 417, 421. (g) Ante, pt. i. ch. iii. ; post, p. 518. (h) 1 Mac. & G. 373-4. ^5609) 524 INQUIRIES, Burden of proof in general on creditor. When inquiries directed as to settlor's debts. time of the execution of the settlement should have then actually ripened into debts in order to avoid it (i). The way in which a settlor's liabilities and asset3 should be estimated has been already discussed (fc). It is a general principle of law that fraud is not to be presumed. The burden of proof of debts sufficient to avoid a settlement therefore rests, in general, upon [ * 516 ] the person or persons who seek to * impeach it. So, where a settlement is impeached on the ground of an intent to defeat future creditors, the burden of proof lies on those who impeach it (I). To this rule, that the burden of proof rests on those who seek to impeach the settlement, there are two ex- ceptions. The first exception is where the settlor can be shewn to have executed the settlement with a fraudulent in- tent (m). In this case it is not necessary to prove the existence of any debt at the time the settlement was ex- ecuted; for fraud of itself avoids the settlement (n). The second is, where the settlor becomes insolvent shortly after the execution of the settlement, and not in consequence of any wholly unexpected loss which could not reasonably have been reckoned on (o). So, if a man on the eve of going into trade makes a voluntary settlement of the whole or the bulk of his property and becomes insolvent shortly afterwards, the burden of proof lies on him to shew that he was then in a position to make that settlement (p). A creditor whose debt is subsequent to the settle- ment and who brings an action in order to prove ante- cedent debts, with no evidence of such debts (except mortgages), will not be entitled to an inquiry as to the (i) Ante, pp. 50, 57. (k) In re Ridler. 22 Ch. D. 74 ; ante, pp. 57 et seq. (V) Richardson v. Smallwood, Jac. 552 ; Ex parte Mercer, 17 Q. B. D. 290. (m) In re Pearson, 3 Ch. D. 807 ; ante, p. 68. (») Ante, pp. 41, 67. (o) Townsend v. WestacoU, 2 Beav. 360, S. C. 4 Beav. 58 ; Cross- ley v. Elworthy, L. R. 12 Eq. 165 ; Mackay v. Douglas, L. R. 14 Eq. 106 ; Ex parte Russell, 19 Ch. D. 588. (p) Orossley v. Elworthy, L. R. 12 Eq. 165 ; Mackay v. Douglas, L. R. 14 Eq. 106 ; ante, pp. 51 et seq. 65. (5610) WHEN DIRECTED , 525 state of the settlor's circumstances at the time of the settlement (g). Inquiries will, however, be directed where debts are But when proved, even by a document which is not evidence, as debts not against those claiming under the settlement (r). properly in evidence. If there is proof of one prior debt (s), or if there is If proof of some evidence of the settlor having been in embarrassed one debt, or circumstances * at the time the settlement [ * 51 7 ] some embar- was executed (t), as in the case of Norcutt v. Dodd (u), rassment - where there then were three executions in the house of the settlor, it is sufficient foundation for an inquiry to ascertain the amount of the settlor's debts and liabili- ties and the value of his property at the date of the settlement. And if it appears that at that time his lia- bilities exceeded his assets (excluding the settled prop- erty) the settlement will beset aside (v). "Where it appeared that at the time of making a vol- inquiry at untary settlement the settlor had competent private volunteers' means, but the evidence shewed that the affairs of a firm risk - in which he had long before become a partner were much embarrassed, and less than a year afterwards be- came bankrupt, it was held that the settlement was void under 13Eliz. c. 5 ; but (there being some slight doubt as to the amount and value of the assets when the set- tlement was made) an inquiry was allowed the volun- teers at their own risk (w). But a mere allegation in the statement of claim, that No inquiry debts owing at the date of the settlement are still un- allowed paid, is not enough (x) ; and where there was only one w en ' debt of small amount, and that not clearly proved, and no circumstances to induce the Court to suspect that the settlor wa3 at that time largely indebted, no inquiry (q) Lush v. Wilkinson, 5 Ves. 384 ; Holloway v. Millard, 1 Mad. 414, 421. (r) Tovmsend v. Westaeolt, 2 Beav. 340, S. C. 4 Beav. 58. (s) Richardson v. Smallwood, Jac. 554 ; Skarf v. Soulby, 1 Mac. & G. 364 ; Jenkyn v. Vaughan, 3 Drew. 419, 420 ; ante pp. 39, 50, 51. (0 Christy v. Courtenay, 13 Beav. 96 ; and see Taylor v. Coenen 1 Ch. D. 636. (a) 1 Cr. & P. 100. (») Christy v. Courtenay, 26 Beav. 140 ; Townsend v. Weslacott, 2 Beav. 340, S. C. 4 Beav. 58 ; ante, p. 57. (w) Denison v. Tattersall, 18 L. T. (N.S.) 303. [x) Lush v. Wilkinson, 5 Ves. 384 ; Manders v. Manders, 4 Ir. Eq. 434. 39 STAT. OP ELIZ. (5611) 526 UNDER 13 ELIZ. C. 5, Settlement, of which plaintiff ignorant, coming out in the action. Inquiry directed though no proof of debt. ■was allowed (y). So, the mere fact of a man convey- ing a large part of his property on trust for sale does not afford a presumption that he was then indebted, and when there is no suggestion in the action that the set- tlor was indebted when he executed the settlement no inquiry will be allowed (z). The principle is, that where the creditors have the op- portunity of proving, and do not prove, the existence of debts at the time the settlement is executed, the ac- tion must be dismissed (a). [ *518 ] *But it seems that where the action is not brought for the express purpose of affectimg the set- tlement a different rule applies. Thus, in Kidney v. Conssmaker (b), where the suit was instituted in igno- rance of the settlement, which came out in the answer, Sir W. Grant, M.R., directed inquiries, making the fol- lowing distinction (c) : "It is said, as the creditors have not proved that the testator was indebted at the date of the settlement, that is not now to be made a subject of inquiry. The case of I/ush v. Wilkinson (d), cited in support of that proposition, does not re- semble this case. In that case the bill was filed for the express purpose of affecting the settlement, upon the . ground that the settlor was insolvent at the time it was made. There was no evidence in support of the bill, and there was evidence to the contrary produced by the widow. The only reason for surprise, therefore, is that Lord Alvanley did not absolutely dismiss the bill, in- stead of giving liberty to file another. But in this in- stance the creditor, not apprised of the settlement, filed the bill to affect all the "devisees ; and this settle- ment came out in the answer, which led to inquiry " (e). Inquiry as to In some cases inquiry will be directed as to the con- considera- sideration for a settlement which is apparently volun- tion - tary(/). "Who may bring an action under 13 Eliz. c. 4. As a general rule, any person who is entitled to rank as a creditor may bring an action to avoid a settlement under 13 Eliz. c. 5 (g). (y) Manders v. Manders, 4 Ir. Eq. 434 ; ante, p. 50. (z) Battersbee v. Farrington, 1 Sw. 186. (a) Manders v. Slanders, 4 Ir. Eq. 438. h) 12 Ves. 136. (c) 12 Ves. 155. (d) 5 Ves. 384. (e) See Gooch'sCase, 5 Rep., 60 a ; ante, p. 166. (/) Hunt v. Maunsell, 1 Dow, 211 ; ante, pp. 266 et seq. (g) As to who are creditors, see ante, pt. ii. ch. ii., ch. iii. (5612) WHO MAY BRING ACTION. 527 A creditor whose debt is contracted subsequently to "When subse- the date of the settlement is in certain cases entitled to quenl impeach it. creditor can impeach The only reason that a subsequent creditor is allowed to maintain such an action merely on the ground uf the settlor's indebtedness, is that, if a prior creditor set aside the settlement, a subsequent creditor would be entitled to participate, pro r&ta, so that he has an equity to participate, and may bring his action to enforce that equity (h). * But, as his equity cannot possibly be a bet- [* 519] ter one than that of a creditor whose debt was con- tracted before the date of the settlement, so if that antecedent creditor cannot impeach such settlement, neither can the subsequent creditor impeach it merely on account of the settlor's indebtedness to him (i). A subsequent creditor can maintain an action to set Subsequent aside a settlement merely on the ground that it was ereditorsmay voluntary and that the settlor was then indebted, so when any long as any debt due at the date of the settlement re- uQ^ai^ 6 mains still unpaid at the time of the issue of the writ. , This was expressly decided in the case of Jenkyn v. Vaughun (fc). Sir R. T. Kindersley then 6aid (I) : "In cases where a subsequent creditor files a bill it occurs to me that much may depend on this (supposing there is no evidence of anything to shew the fraudulent in- tention but the fact of the settlor being indebted to some extent), — whether at the time of filing the bill any of the debts remain due which were due when the deed was executed. In such a case, as any of the prior creditors might file a bill, it appears to me that a sub- sequent creditor might do so too. When we look at the authorities, we find that in two or three cases where the question has been raised as to the plaintiff's right to file a bill, being a subsequent creditor, and debts an- tecedent have been shewn still to subsist, the Court, (h) Jenkyn v. Vaughan, 3 Drew, at p. 425 ; and see Chamley v. Dimsany, 2 Sen. & Lef. 714 ; Story, Eq. Jur. 12th ed. s. 361 ; ante, p. 61. (i) Holloway v. Millard, 1 Mad. 119 ; Walker v. Burrows, 1 Atk. 94 ; Ede v. Knowle, 2 Y. & C. C. C. 172, 178 ; Smith v. Tatton, 6 L. R. Ir. 32 ; Story, Eq. Jur. 12th ed. s. 360 ; Bump. Fr. Conv. (Amer.), 2d ed. 312, 314, 317 ; ante, p. 61. (k) 3 Drew, 413. (I) 3 Drew, 425. (5613) 528 UNDER 13 ELIZ. C. 5. having its attention drawn to that, has made a decree in favour of the creditor " (m). This decision has been followed in Freeman v. Pope (n). Sir W. M. James, V.-C, there said that Jenkyn v. Vaughan (o) decided that, if there be at the time of filing the bill an unpaid creditor whose debt is prior to the settlement, a subsequent creditor has exactly the [ * 520] same right to file a bill as the prior * creditor has ; that is to say, the case is to be tried as if the prior and not the subsequent creditor were the plaintiff. Can subsc- The point has never been expressly decided whether, quent credit- if all the debts due at the date of the settlement are or maintain p a j(j before the writ in the action is issued, a subse- iorcredi- °£ uen t creditor can maintain that action to set aside the tors are paid? settlement simply on the ground that the settlement was voluntary, and that the settlor was then indebted (p). It is conceived that, in the absence of any fraudu- lent contrivance on the part of the settlor to pay off the existing creditors by creating fresh ones (q), such action could not be maintained, because the equity of the subsequent creditor-cannot be a higher one than that of a creditor at the date of the settlement. Settlement when good against subsequent creditors. Of course a settlement made by a man not then in- debted and not meaning a fraud is good against subse- quent creditors (r) ; as is a settlement made by a man not then indebted and not in contemplation of goipg into trade, even though the settlor should some years afterwards, by a totally new arrangement, go into trade (s). As the question, whether a settlement is valid or void (m) See Skarf v. Soulby, 1 Mac. & G. 373 ; Richardson v. SmaUwood, Jac. 552. (n) L. E. 9-Eq. 206, S. C. L. E. 5 Ch. 538, 540 ; ante p. 47 ; Crossley v. Elworthy, L. E. 12 Eq. 158 ; Taylor v. Coenen, 1 Ch. D. 636. (o) 3 Drew, 413. (p) Lush v. Wilkinson, 5 Ves. 384 ; Jenkyn y. Vaughan 3 Drew, 425 ; hut see Smith v. Tatton, 6 L. B. Ir. 32 ; ante pp. 64 et seq. (q) Richardson v. SmaUwood, Jac. 552 ; Holmes v. Penney, 3 K. & J. 99 ; Smith v. Tatton, 6 L. E. Ir. 32 ; and see Bump. Ft. Con v. (Amer.), 2d ed. 315, 316. This has been so held in Upper Can- ada, Collard v. Bennett, 28 Chy. 556. (»•) Bolloway v. Millard, 1 Mad. 420, 421 ; ante p. 75. (s).Mackayv. Douglas, L. B. 14 Eq., per Malins, V.C., at p. 121 ; Story, Eq. Jur. 12th ed. s. 358 ; see Bump. Fr. Conv. (Amer.), 2d ed. 309, 310. (5614) WHO MAY BRING ACTION. 529 against creditors, is determined upon consideration of all the circumstances at the time it is executed, so it is plain that, if the settlor was not then indebted, no sub- sequent creditor can impeach it merely on the ground of the settlor's subsequent indebtedness to him (s). A subsequent creditor may, however, impeach a set- When no debt tlement without having to prove at least one debt due dueat dateof . . Settle 1116 lit at the date of the settlement and still unpaid at the an( j muse . time of the issue of his writ in any of the following guent creditor cases : — can impeach deed. 1. If it can be shewn that the settlement was made with * express intent to " delay, hinder, or de- [ * 521] fraud " future creditors (t) ; as when, soon after its ex- ecution, the settlor denudes himself of all his remain- ing property, or the property left out of settlement cannot be realized when required (u). 2. If such settlement is made by a man about to en- gage in trade, or any hazardous operation, in contem- plation of possible future indebtedness, with the whole or the bulk of his property (v) : and even if the settlor had paid all debts due from him at the date of the set- tlement (w), or owed no debts whatever at that date (x). 3. If such settlement must necessarily defeat the sub- sequent creditor in an action then pending, and was vol- untary (y). There appears to be no case in which a subsequent Subsequent creditor has succeeded in impeaching a settlement for cre ". ltor ca °- £ _ not impeach (s) See Sedgwick v. Place. 25 L. T. (N.S.) (Amer.)307 ; Bump, settlement Fr. Conv. (Amer.), 2nd ed. 310 ; so too in Upper Canada, Bous- for value " tead v. Shaw, 27 Chy. 280. then no (t) Murphy v. AbraJiam. 15 Ir. Ch. Eep. 37J. ; Ware v. Gardner, debts. L. E. 7 Eq. 317 ; Re Clint, L. R. 17 Eq. 115 ; In re Pearson, 3 Ch. D. 807 ; Smith v. Tatlon, 6 L. R. Ir. 32 ; see Bump. Fr. Conv. (Amer.), 2d ed. 308 ; Story, Eq. Jur. 12th ed. s. 361 ; ante, pp. 67, 68. («) Spirelt v. Willows. 3 D. J. & S. 293 ; Freeman v. Pope, L. R. 5Ch. 541, 544, ante, p. 66 ; Crossley v. Elworlhy, L. R. 12 Eq. 158, Ex parte Russell, 19 Ch. D. 588 ; but see Smith v. Tatlon, 6 L. R. Ir. 32. (v) Mackay v. Douglas, L. R. 14 Eq. 106; Ex parte Russell, 19 Ch. D. 588; and see Bump. Fr. Conv. (Amer.), 2nd ed. 310, 311; Reade v. Livingstone (Amer.), 3 Johns. Ch. 497, 501. (w) Mackay v. Douglas, L. R. 14 Eq. 106, 113. (x) In re Pearson, 3 Ch. D. 807. (y) Barling v. Bishopp, 29 Beav. 417; Ex parte Mercer, 17 Q. B. D. 290; ante, p. 74. (5615) 530 UWDER 13 ELIZ. C. 5, But not if his action would dei'eat the prior credit- ors. valuable consideration, on the ground of not being- made bona fide, when there were no debts in existence at the date of the settlement (z). Of course, a creditor whose debt is contracted subse- quently to the date of the settlement must not have an interest adverse to that of the prior creditors, for he can- not maintain an action which would, if successful, sup- port his claim at their expense; and a judgement will not be made in his favour unless the effect of it would be to benefit the prior creditors equally by letting in their claims on the settled property ( a). The reason of this is, that the right of a subsequent creditor to main- tain such an action at all, on the ground of the settlor's indebtedness,. depends on that of the creditors at the date of the settlement (&). Action [ * 522 ] * An action can be maintained under 13 Eliz. against debt- c. 5, by a creditor against his debtor, though that debtor 01 (h I a * 3 living and neither insolvent nor bankrupt, to set aside rupt a settlement made by him (c); for that statute is quite distinct from the bankrupt law for the time being in force, and is not affected by it (d). But such action cannot be maintained if the creditor is or becomes a debtor to the settlor on a balance of ac- count (e). Trustee of bankrupt must bring action. When the settlor is a bankrupt at the date of the issue of the writ, the trustee under his bankruptcy (/), or the inspector under the deed of inspectorship (gf), is the proper person to bring" the action. A bankrupt is not a proper party to an action by the trustee under his bankruptcy to set aside a settlement made by him (h). The question, whether proceedings to avoid a settle- (z) Smith v. Tatlon, 6 L. R. Ir. at page 43; ante, pp. 84 et seq. (a) Collins v. Burton, 4 De G. & J. 612. (6) Ante, p. 61. (c) Reese River Silver Mining Co. v. Atwelt, L. R. 7 Eq. 347; Cornish v. Clark, L. R. 14, Eq. 184; In re Johnson, 20 Ch. D. 388' S. C. 51 L. J. (N.S.) Ch. 503; Ex- parte Eyre, 44 L. T. (N.S.) 922! ((f) Ante, pp. 10, 96. ( w usually in The administration of the estates of deceased Division^ persons; The dissolution of partnerships, or the taking of partnership or other accounts; The redemption or foreclosure of mortgages; * The rising of portions or other [ * 533 ] charges on land ; The sale or distribution of the proceeds of property subject to any lien or charge ; The executions of trusts, charitable or private ; The rectification, or setting aside, or cancella- tion of deeds or other written instruments ; The specific performance of contracts between vendors and purchasers of real estate, including contracts for leases. The partition or sale of real estates. The three Common Law Divisions had assigned to them all causes and matters pending in the respective Courts at the commencement of the Judicature Act, 1873 ; and also all causes and matters within their re- spective exclusive cognizance if the Judicature Act, 1873 had not passed (m). (i) In Bennet v. Musjrove, 2 Ves. 51-2. See Bamshire v. Bol- ton, L. E. 8 Eq. 294. (fc) Judicature Act, 1873, ss. 3, 4, 16, 24, 32 ; Ord. 16, Dec. 1880 ; see Wilson, 4th ed. 42-46. (1) Section 34. See Sogers v. Jones, 7 Ch. D. at p. 399. (m) Judicature Act, 1873 s. 34. 40 STAT. OF ELIZ. (5627) 542 DEED PART GOOD, PAKT VOID. The action must be brought in the Queen's Bench Division, if it was such as formerly would have been within the exclusive cognizance of any of the three Common Law Divisions, which are now merged in the Queen's Bench Division. It is, therefore, conceived that, in general, an action under these statutes should be brought in the Chancery Division (n). In any other case the plaintiff may choose the divi- sion in which to bring his action (o). Fraud must And where the action is brought with the express be alleged. purpose of setting aside a settlement, there must be an allegation in the statement of claim that the settlement was fraudulent (p). Pleading release. In pleading the release of a claim to a litigated es- tate as a valuable consideration to support a deed, it is not necessary to shew what was the value or nature of the claim released (q). Creditor tak- [ * 534] * A creditor is not estopped from bringing ing benefit an ac tion to set aside a deed by taking a benefit under not estopped. other partg of it which he doeg not i mpe acb (r). A deed may be good in part, and as to part fraudulent and void against purchasers or creditors (s), although the creditor attempts to upset the whole transaction (i). Settlement There can be no doubt that some limitations in a set- good in part tlement may be voluntary and void against creditors or and void in purchasers, while others in the same settlement are on p valuable consideration and binding. This is evident (n) Section 34 ; supra, pp. 522 et seq. (o) Judicature Act, 1873, s. 11 ; R. S. C. Ord. 5, r. 5. (p) Ricliardson v. Horton, 7 Beav. 112 ; and see Hiildrrness v. Rankin, 6 Jur. (N.S) 928, S. C. affirmed 903 ; R. S. C. Ord. 19, rr. 15, 22; Davy v. Garrett, 7 Ch. D. 473, 489; Wallinijford v. Mu- tual Society, 5 App. Cas. 685 ; Kerr, Fraud & Mis. 2nd ed. 425 et seq. (q) Hill v. Bishop of Exter, 2 Taunt. 69 ; and see R. S. C. Ord. 19, r. 15. (r) French v. French, 6 De G. M. & G. 95 ; Neale v. Day, 28 L. J. (N.S.) Ch. 45. (s) Style, 428 ; so also in marriage settlements -where the lim- itations to husband, wife, and issue are good, but remainders to collaterals may be voluntary aud void ; see ante, pp, 342 et seq. (t) Russelv. Hammond, 1 Atk^ 13, 16, "West (t. H.) 530. For form of decree, see Neale v. Day, 28 L. J. (N.S.) Ch. 47 ; Seton, 4th ed. 1371. (5628) MARSHALLING. 543 from the many cases in which it has been decided that limitations to collaterals (unsupported by any considera- tion besides the marriage) are voluntary, whereas the in- terests of the husband, wife, and issue are supported by a high and valuable consideration (w). As between the parties themselves, the Court may sometimes be influenced by the fact that, as to some persons interested, the deed was a contract for value, and will on that ground, not liking to garble and split agreements, as "agreements are entire, and the several branches might have been in view" (v), order specific performance of (for instance) limitations in marriage settlements in favour of volunteers in remainder (-<«). Still, it seems that where purchasers or creditors are con • cerned, no regard will be paid to circumstances of that nature ; but any limitations in the deed which, taken by themselves, must be considered voluntary, will be none the less voluntary and void because they form part of the same agreement (x). Referring to this, Eolle, C.J., *said (y), "a deed may be fraud- [ *535] ulent in part, and good in part, and so it was adjudged in the case of one Lydal (z). So also in a sale for value, a limitation or arrange- ment by which part of the purchase-money is removed from the reach of creditors will be looked on as a separate settlement of that part of the purchase -money by the vendor, and, if voluntary, void against creditors or subsequent purchasers (a); but of course it is differ- ent where the way in which the money or other consid- («) See ante, pp. 342, 357 et seq. (u) Per Lord Hardwicke in Stephens v. Trueman, 1 Ves. 73 ; Penn v. Lord Baltimore, 1 Ves. 453. (w) Stephens v. Trueman, 1 Ves. 73 ; Goring v. Nash, 3 Alk. 136, 188-9; Vernon v. Vernon, 1 Bro. P. C. 267; Lechmere v; Carlisle, 3 P. Wms. 211, 222-3 ; Hale v. Lamb, 2 Eden, 292 ; Davenport v. Bishopp, 2 Y. & C. C. C. 451, S. C. 1 Phil. 698 ; Campbell v. Ingilby, 21 Beav. 567, S. C. 1 DeG.&J. 393 ; Brennan v. Brennan, 2 Ir. R. 2 Eq. 266, 321 ■; Wollaslon v. Tribe, L. R. 9 Eq. 44 ; and see ante, pp. 275, 391, 392. (x) Lane 22 ; Osgood, v. Strode, 2 P. Wms. 245 ; Johnson v. Legard, 3 Mad. 263, S. C. 6 M. & S. 66 ; Cormielc v. Trapaud, 6 Dow, P. C. 60 ; ante, p. 342 ; notwithstanding White v. Stringer, 2 Lev. 106. (y) Style 428 ; and see Estwiclc v. Caillaud, 5 T. R. 420-1. (z) Probably Beverly v. Gatacre, 2 Roll. Ren. 305, cited in While v. Drake, 3 Kreb. 6. (a) French v. French, 6 De a. M. & G. 95, and ante, pp. 86, 87; Neale v. Day, 28 L. J. (N.S.) Ch. 45. (5629) 544 CONTRIBUTION. Doctrine of marshalling applies in favour of volunteers. Contribution when enforc- ed against voluntary grantee. eration was settled formed part of the consideration for the deed (b). The doctrine of marshalling has been applied in favour of volunteers in several cases. So estates com- prised in one mortgage will be marshalled in favour of a voluntary settlement, so as to throw the debt on the unsettled property (c). So where a man died having partly exercised a general power to charge £2000, and the money raised was held assets for his creditors, Lord Hardwicke directed the personal estate to be first ap- plied in payment of debts, then the real estate de- scended, and then the £2000 (d). But this principle does not, it is conceived, apply as between two volunteers (e). And, as it will not be applied to prejudice third parties, so it will not be applied in favour of judgment creditors to the prejudice of volunteers who claim under a prior voluntary settlement. The Court will not interfere ac- tively against a volunteer through the medium of a person claiming only through the voluntary settlor (/). The question of the liability to contribution of a grantee under a voluntary deed has been carefully dis- cussed in the Court of Appeal in Ireland, in the case of Ker v. Ker (g), by Lord O'Hagan and Lord Justice Christian. Kar v. Ker. [ * 536 ] *In that case. K., being seised in fee of L. and other lands, all devised to him by his brother, and subject to a judgment debt created by that brother, conveyed L. by a voluntary deed with an express cove- nant for further assurance by K. only, and devised his other estates. The judgment debt was paid off partly by K. and partly by the devisees out of the devised estates. The voluntary grantee sold L. subject to any liability to the judgment debt. On a bill filed by the devisees in remainder against the purchaser from the S b) Wakefield v. Gibbon, 1 Giff. 401. c) Aldridge v. Forbes, 9 L. J. (N.S.) Ch. 37; Wales v. Cox, 32 Beav. 118, commented on in Ker v. Ker, 4 Ir. R. Eq. 15; Anstey v. Newman, 39 L. J. (N.S.) Ch. 769. (d) Bainton v. Ward, 2 Atk. 172. (e) Bonzman v. Johnston, 3 Sim. 377; but see Lomas v. Wriaht 2 My. & K. 769. (/) Dolphin v. Aylward, L..R. 4 H. L. 502, 503, 505. (g) 4 Ir. R. Eq, 15 reversing S. C. 3 Ir. R. Eq. 489. (5630) PENAL CLAUSES, HOW CONSTRUED. 545 voluntary grantee and certain formal parties for con- tribution, it was held that the voluntary grantee was liable to contribute with the devisees under the will of K. to discharge the incumbrance subject to which all the lands had come to K. The principle upon which the judgments in this case Volunteer went, was that there is no real difference between a under deed volunteer by deed and a volunteer by will. Each vol- and wil1 ™ • unteer takes what his benefactor had, aDd as he had it. same P 0S1 10n A devisee is liable to contribute with an heir to the dis- charge of an incumbrance not the debtor of the de- visor (h). The one takes under the will as a volunteer, the other by descent. Upon the construction of the deed, also, it was held that the covenant for further assurance by the settlor alone made no difference at all, and did not exempt the grantee from the liability to contribute. The deed simply granted the property in the state in which the grantor held it — that is, burdened in common with other lands to an incumbrance. So, the liability to contribution would have existed when not if the same question had been raised between two vol- enforced, untary grantees (i). It would seem, however, that there would be no liability to contribute if the voluntary deed contained either a covenant against incumbrances or a covenant for quiet enjoyment (A;). The 3rd section of the statute 13 Eliz. c. 5, enacts Penalties tbat all and every the parties to such feigned, covinous, under 13 or fraudulent feoffment, gift, grant, alienation, bargain, Eliz - c ' 5 > s - 3 - conveyance, bonds, suits, judgments, executions, and other things before expressed, and being privy and knowing of the same or any of them, which shall wit ■ tingly and willingly put in ure, avow, maintain, justify, *or defend the same as true, &c, or shall alien [ * 537 ] or assign any the lands, tenements, goods, leases, or other things before mentioned to him or them conveyed as aforesaid, or any part thereof, shall incur the penalty and forfeiture of one year's value of the said lands, Forfeit one tenements, hereditaments, leases, rents, commons, or year's value other profits of or out of the same, and the whole value of lands. (70' Eyre v. Green, 2 Coll. 527. (i) Ker v. Ker, 4 Ir. E. Eq. at p. 31. (k) Ker v. Ker, 4 Ir. E. Eq. 21, 34; and see Hales v. Cox, 32 Beav. 118. (5631) 546, UNDER STATUTES OF ELIZABETH : Whole value of the said goods and chattels, and also so much money, ef goed3, &c. as are or shall be contained in any such covinous and feigned bond, one moiety to be to the Crown and the other to the parties grieved by such feigned and fraud- ulent feoffment, &c, to be recovered in a Court of record by action of debt, bill, plaint, or information, &c. ; and the offender, being thereof lawfully convicted, is sub- jected to half a year's imprisonment without bail or mainprise. Half year's imprison- ment. 27 Eliz. c. The statutes to be liber- ally con- strued. By 27 Eliz. c. 4, s. 3 (I), a penalty of one year's value of the land fraudulently aliened and also imprisonment for half a year is in almost the same words imposed on those who wittingly and willingly put in ure, &c, any fraudulent conveyance, &c, under that statute. It is a clear and fundamental rule in the construc- tion of statutes against frauds that they are to be liber- ally and beneficially expounded (m) ; and these statutes of Elizabeth, it has frequently been laid down, are to be so construed for the suppression of fraud (n), in such a way as to repress the mischief aimed at and to advance the remedy (o). Still, it has been several times observed that, in considering whether a convey- ance is fraudulent within these statutes, the penal clauses are to be taken into consideration (p), so as to narrow their operation. * Penal It is an undecided point whether this general rule of clauses, how construction applies to the penal clauses of these stat- utes. It is conceived, however, that those clauses which [ * 538] impose penalties upon persons *must be con- strued strictly (q) ; and it does not appear to be neces- sary that the whole of a statute, which is partly reme- dial, and partly penal, should be construed upon the same principles (r). mTost, p. 542. (»») Girlon v. Champneys, 1 Bing. 201. («) Cadogan v. Kennelt, 2 Cowp. 434 ; Bullock v. Thorne, F. Moo. 615 ; Pauncefoot v. Blunt, cited 3 Rep. 82 a ; Horsman v. Gibson, Fortesc. 32-34, "Plowd. 36 b; Barton v. Vanhcythuysen, 11 Hare, 126, 132; ante, p. 4; AVilberforce, Stat. 233-234. (o) Ex parte Pearson, L. E. 8 Ch. 672, 673. (p) By Lord Mansfield, in Doe v. Eoutledge, 2 Cowp. 710; and Lord Justice Turner in Olliver v. King, 8 De G. M. & G. 110, 117. (fl) Girion v. Champiieyn, 1 Bing. 201 ; Hardcastle, Stat. 249 et seq.; Nichols v. Hall, L. K. 8 C. P. 326 ; Dyke v. Elliott, L. B. 4 P. C. 191. (r) Wilberforce, Stat. 233 ; and see Bores v. Booth, 2 W. Bl 1226. (5632) to be con strued. INTERROGATORIES. 547 A person is liable to the penalty, under either stat- ute, if he has been party or privy to such feigned, cov- inous, or fraudulent feoffment, &c, and if he has wit- tingly and •willingly (s) maintained the same against, and disputed the right of, creditors or purchasers. Any person who aliens or assigns any of the property conveyed to him as aforesaid is also liable to the pen- alty under 13 Eliz. c. 5 (t); so that a sale over to a bona fide purchaser will not exempt the parties to a fraud on creditors from the penalties attached to it. Although Lord Eldon said (u), "It is true the con- Penalty only struction put upon both these statutes is singular; that in cases of a man paying what in other cases is called an obliga- actual fraud, tion of nature, should be considered as within the pen- alties of these Acts," the case of Meux v. Howell (v) would seem to warrant the inference that the penalty is only recoverable in cases of actual fraud, which would be the effect of a strict interpretation of the words. While the statutes make void feoffments, &c, contrived to delay, hinder, or defraud, the penalty is only directed against "such feigned, covinous, or fraud- ulent feoffments," &c. Constructive fraud, under these statutes, is the re- sult of many judicial decisions, and is an artificial mean- ing assigned to the words of the statutes, and not their plain and natural meaning (w). In cases of constructive fraud, if the conveyance is voluntary, it is void, but, if not, it is good. It can hardly be argued that the persons entitled under the settlement would become liable to the penalty by put- ting in ure or maintaining it for the purpose of decid- ing a question which they had no other means of ascer- taining — viz., whether the settlement was voluntary and therefore *construetively fraudulent, or whether [ *539] they were lawfully entitled under it. The same argument seems to apply with even more force to a case where the voluntary grantees have bona fide and for value assigned the property. (s) Hardcastle, Stat. 253-255. (0 Not sounder 27 Eliz. c. 4; ante, p. 537. («) In Puhertoft v. Pulvertoft, 18 Ves. 90-1. (v) 4 East. 1, 6-7, 11, 3 Com. Dig. 297; and see Roe v. Mitton, 2 Wils. 3rd ed. 358*. (w) Ante, pp. 3, 5, 14; pt. ii. ch. ii. eh. iii.; pt. iii. ch. i. (5633) 548 UNDER STATUTES OF ELIZABETH: The only direct authority on the point, it appears, is to be found in Jones v. Boulter (x), where Sir James Eyre said (y), "The 13 Eliz. is a wholesome law, plainly penned, and I wonder how artificial reason could puzzle it. An artificial rule of construction has entangled Courts of Justice — viz., that a voluntary conveyance of a person indebted at the time is to be deemed fraudulent. It was never yet held that such conveyance subjected the party to the penalties; yet the clauses are co-extensive." Gan defend- It has been made a question whether the rule that a ant refuse to defendant cannot be compelled to answer interrogatories answer any f^e replies to which might expose him to indictment, tories? Sa " penalties, or forfeiture (z), applies to cases of fraud un- der these statutes. It might be said that, as all voluntary conveyances made in fraud of creditors or purchasers are void against them, whether or not the grantee had notice or knowl- edge of the fraud (a), the setting aside a voluntary deed does not necessarily imply that the persons main- taining it were parties or privies to the fraud, and there- fore is not within the rule as to compelling answer. But the rule is a very strict one — namely, that no person is compellable to' answer any question which has a tendency to expose him to a criminal charge, penalty, or forfeiture (6). "Whether de- The question has twice been raised under 13 Eliz. 5. fendaDt must In Wich v. Parker (c) the bill alleged an assignment TherTliableto T * 54 ° ] made by the defendant * to have been a fraud - criminal pro- u ' ent contrivance to deprive his creditors of the prop- eeedings, erty composed therein. The defendant by his answer penalties, or referred to the statute 13 Eliz. c. 5, and said that the forfeiture. plaintiff by his bill sought discovery in respect of a (x) 1 Cox, 288. ( y ) 1 Cox. 294-5. (z) Llarrdgev. Boare. 14 Ves. 59, 65; Paxton v Douglas, 19 Ves. 225; Thorpe v. Macaulay, 5 Mad. 229, 231, n.; Pye. v. Butter- field, 5 B. & S. 829; Allhusen v. Laboucherc, 3 Q. B. D. 058; Fisher v. Owen, 8 Ch; D. 645; Lamb v. Mnnster, 10 Q. B. D. 110; Hun- ning v. Williamson, 10 Q. B. D. 459; Taylor, Ev. 8th ed. 1242, Peile, Discovery, 46-49; R. S. C. Ord. 31, r. 6. 1 (a) Partridge v. Gopp, 2 Amb. 596; ante, pp. 78, 193. (6) Harrison v. Southcote, 1 Atk. 528, 539; Honeywoodx. Selwin, 3 A k, 276; Maccallum v. TuHon, 2 Y. & J. 186; United States of America v. iPCrae, L. R. 3 Ch. 83; Peile. Discovery. 48, and see Exparte Reynolds, 20 Ch. D. 294; Taylor, Ev. 8th ed. 1242; and Kerr, Discovery, 154. (c) 22 Beav. 59. (5634) PRODUCTION OF DOCUMENTS. 549 matter which, if true, would render hira (the defendant) liable to a criminal prosecution under the said statute! and insisted that he was not bound to answer, and de- clined to answer, any of the interrogatories. The plain- tiff amended his bill by striking out the direct allega- tions of fraud, and again filed his interrogatories, which the defendant still refused to answer on the same ground. The Master of the Rolls decided that the amended bill was substantially the same as the original bill, and that the defendant could not be compelled to answer the amended bill. And in an interpleader issue at law (d) between a claimant (under a fraudulent bill of sale) and an exe- cution debtor, the judgment debtor was called, and asked certain other quesrions as to the real nature and object of the transaction. On being admonished by Willes, J., that he was not bound to answer, as he might thereby criminate himself and expose himself to prosecution (e) under the statute of Elizabeth for conspiracy to defraud his creditors, he declined to answer. It is conceived, therefore, that the rule above cited ap- plies to cases, under these statutes. The case of Bunn v. Bunn ( /), which has been cited Bunn v. as establishing the opposite conclusion, does not, it is - Bunn - submitted, support that view, for it was not really a de- cision upon that precise point. In Bunn v. Bunn (/), two defendants refused to make an affidavit as to docu- ments in their possession, on the ground that if the deed should be proved to be fraudulent under 13 Eliz. c. 5, they, as parties thereto, would be liable to criminal pro- ceedings. The Lords Justices said it had never been the practice to allow theso provisions of either of the stat- utes of Elizabeth to be made an excuse for resisting dis- covery; that the affidavit must be made; and that if any objection was made * to produce any particu- [ * 541 ] lar document, that objection must be considered there- after on its merits. So in Swanston v. Lishman (g), Jessel, M R., said that the rule as to discovery is the exact contrary to that as to production. You must set out every deed you (d) Michaels. Gay, 1 F. & F. 409. (e) See Reg. v. Smith, 6 Cox, C. C. 31; and see Ex parte Reynolds 20 Ch. D. 294. (f)i i>. J. & S. 316. (g) 45 L. T. (N.S.) 360, 361. (5635) 550 UNDER STATUTES OF ELIZABETH: have in your possession, whether you are bound to pro- duce them or not. This case of Bunn v. Bunn (h), it must be observed, does not decide that production of documents could be enforced if that production rendered the parties liable to criminal proceedings. It merely decides that the affidavit as to documents must be made, in an action under those statutes, even if making it should involve the further question of the right to production and lia- bility to criminal proceedings (*). Production of There seems to be no express authority upon the documents, point 'whether production of documents can be enforced forced hi Til UQ d er these statutes, if that production would expose cases. the person producing them to criminal proceedings, penalties, or forfeiture. The case of Webb v. .East (k) shews that it is at least doubtful whether documents can be so protected from production. Principal not Although if an authority be given to an attorney to penally effect a particular purpose for another, that other is liable for act )3 0Un( ] by anv ac ^ f jjjg attorney in effecting that pur- when. ' pose, it being within the scope of his authority, yet where the defendants in an action under 13 Eliz. c. 5, had instructed their attorney to secure their lawful claim for money due, but had left it to the discretion of the attorney in what way to act so as to do so, Lord Ellenborough thought that, though they might be an- swerable civiliter for what was done by him under that authority, yet the defendants must have had knowledge of the means used in order to subject them to a penalty within the words of the statute (I). Parties " Parties grieved " under these statutes are " creditors grieved. and others" (m), subsequent purchasers, and trustees in bankruptcy of the settlor (m). It may be a ques- [ * 542 ] tion whether a corporation or * company can be a party grieved, so as to be able to sue for the pen- alty (n). Venue. A party grieved within 13 Eliz. c. 5, or 27 Eliz. c. 4, (ft) 4 D. J. & S. 316. (i) See Bray, Discovery, 341. (k) 5 Ex. D. 109, 112; butseeHill v. Campbell, L. E. IOC. P. 222. (0 Meux v. Hmoe.ll, 4 East, 1, 7. (m) Ante, p. 170 ; Butcher v. Harrison, 4 B. & Ad. 129. (») Guardians of St. Leonard's Shoreditch v. Franklin, 3 C P D. 377. (5636) penalty; imprisonment. 551 is not a common informer within the statutes 31 Eliz. c. 5 (o), and 21 Jac. 1, c. 4 (o); and therefore may lay his information in any county (p). In the old case of Poulton v. Wiseman (q), on the Poulton v. statute 27 Eliz. c. 4, it wag resolved with regard to W ,seman - these clauses — That one entire year's profits, which is the penalty of Whole year's the statute, shall be forfeited without apportionment, value - as well upon a mortgage as upon an actual sale. So F or f e jt on also upon a lease or a petty annuity made by fraud, &c. ; mortgage, one year's value of the land shall be forfeited. lease, &c. That every defendant that is found guilty shall pay Every de- a year's value of the land, every one by himself, and iendant not a year's value jointly among them all. liable, That the infancy of one of the defendants shall not though an excuse him of that penalty, he being of sixteen years, iufant. and privy to that conveyance, and having justified, that fraudulent deed to be made bona fide; and for that he Amount can- shall be punished as if he were at full age; and that not be alter- the penalty cannot be increased or diminished. ed. Though the statute 13 Eliz. c. 5, only mentions the Distinction forfeiture of so much money as shall be contained in a of amount fraudulent bond, this must be taken to extend to all forfeited. bonds, interests, judgments, executions, or gifts, &c, p er t v e r eal" of personal property (r). and where There is a careful distinction between real property, of which one year's value in each statute, and bonds, judgments, &c, relating to personal property in 13 Eliz. c. 5, of which the whole value or amount, is for- feited. So on a fraudulent alienation of lands the of- fending parties forfeit a year's value of the land, but not the consideration money named in the convey- ance (s). *The penalty, it seems, extends to the whole [*543 ] (o) Repealed in part by 11 & 12 Vict. c. 43, s. 36 : 42 & 43 Viet. c. 59. (p) Allen v. Slear, 2 Cro. Eliz. 645 ; Fife v. Bousfield, 6 Q. B. 100 ; Lewis v. Davis, L. R. 10 Ex. 86. (?) Noy, 105. (r) See Meuxv. Howell, 4 East, 1, 15; and see the words in the beginning of the section, ante, p. 536. (s) Butcher v. Harrison, 4 B. & Ad. 129, 1 Nev. & M. 677. (5637) personal. 552 UNDER STATUTES OF ELIZABETH. Penalty not confined to amount of debt, heriot. amount fraudulently aliened, and is not confined to the amount of the debt. Thus it was said in an old case (t), that if a man be indebted to me in £20, and he make a fraudulent deed of his goods of the value of £2000, although I be defrauded but of the £20, yet he shall forfeit the whole value of the goods so' conveyed. Gift to defeat There a man had made a fraudulent gift of his thirty horses to defraud the lords of several manors, of whom he held land of their customary heribts. On his death the plaintiff, one of the lords, sued for the whole value of the thirty horses, because he was entitled to choose the best beast, and was defrauded of his election by the gift ; but it was finally agreed that the plaintiff should set a price on any one of the thirty horses as the best horse, and demand the value of that horse as forfeit by the statute, and so his election should be saved to him. But according to another report of the same case (u) it was held that any of the lords could sue for the value of all the beasts. By 22 Vict. c. 32, the payment of any sum of money imposed by any statute as a penalty or forfeiture upon a convicted offender may be remitted bv the Crown. Imprison- ment. Indictable offence. Fraud not stated. How con- victed. With regard to imprisonment of offenders. An in- dictment on the 13 Eliz. c. 5, s. 3, alleged that the prisoners devised and prepared a certain feigned, covin- ous, and fraudulent conveyance of certain lands, and unlawfully, fraudulently, &c, did execute the same conveyance. It was urged in arrest of judgment that the section did not create an indictable offence, and that, if it did, and indictment could lfot be preferred until after a recovery of damages in a civil action, and that this indictment was bad for not stating in what respect the conveyance was fraudulent. Maule, J., held that the Act created an indictable offence, and that an indictment might be preferred before an action was brought, notwithstanding the words " and also " near the end of the penal section ; and that it was not nec- essary, in such an indictment to set out the specific facts which constituted the fraud, and that the words " being thereof lawfully convicted " mean being convicted there- of before some competent tribunal (v). (1) Cresswellv. Cokes, 2 Leon. 8; and see Plowden v. Greene, Co. Ent. 162, pi. 35. (») 3 Dyer, 351 b. See Child v. Sands, 1 Salk. 31-2, 3 Lev. 354; Scriven, Copyholds, 5th ed. 267, n. (x). («) Beg. v. Smith, 6 Cox. C. C. 31. See also Plowden v. Greene, Co. Ent. 162, pi. 35. (5638) *CHAPTER II. [*544] COSTS. It has been laid down by the House of Lords, that the Costs under effect of the Judicature Act, 1875, which gives the Judicature Court a discretion as to costs, was to repeal all previous Act > 1875 - Acts which directed costs to follow certain rules without leaving the Court a discretion (iv). The judges of the High Court of Justice were thereby enabled to exercise a judicial discretion as to costs in all cases, with certain exceptions (x), and to direct the payment of costs where any previous statute was silent as to the costs of pro- ceeding under it (y). By the Rules of the Supreme Court, 1883, the rule3 costs under contained in and forming a part of the Judicature Act, E. S. C. 1883. 1875 (z), were annulled, and the Rules of the Supreme Court, 1883, were substituted for them (a). The costs of and incident to all proceedings in "the Supreme Court, including the administration of estates and trusts, are now in the discretion of the Court or judge (x), so far as relates to any proceedings taken on or after October 24,1883(6). This rule is subject to the provisions of the Acts and Rules ; and to two pro- visoes contained in it, as to the right of an executor, administrator, trustee, or mortgagee to costs out of an estate or fund, and as to costs following the event in the case of an action, cause, matter, or issue tried with a jury. [* 545] *This rule applies to all proceedings in the High Court of Justice which are not expressly excepted from its operation (c). (w) Garnelt v. Bradley, 3 App. Cas. 944 ; and see Ex parte Mer- cer, 10 Ch. D., per Jessel. M.E., 482. (a;) E. S. C. (1883) Ord. 65, r. 1. (y) Ex parte Mercers 1 Co., 10 Ch. D. 481 ; Ex parte Hospital of St. Katherine, 17 Ch. D. 378 ; Be Lee and Hemingway, 24 Ch. D. 669. (z) Longman v. East, 3 C. P. D., per Brett, L.J., 156. (a) E. S. C. (1883), and App. 0. (x) E. S. C. (1883) Ord. 65, r. 1. (61 McClellan v. McClellan, 29 Ch. D. 495. (c) Supra. (5639) 554 COSTS. R. S. C. 1883 But it does not apply to proceedings taken in the do not apply County Courts, the costs of which are still governed by Courts^ the Countv Courts Act » 1867 (<*)• Discretion But although the Court has now a wide discretion as exercised by to costs, yet that judicial discretion is always exercised Court accord- U p on certain fixed principles (e). principles. Under the old practice as to costs the decisions on the statutes of Elizabeth and in cases in which volun- tary deeds were set aside for undue influence afforded ample scope for the Court of Chancery to exercise its discretion either in reimbursing those who have been deceived or injured the amount they have expended in obtaining a redress of their wrongs, or in punishing those who have acted unfairly, or who, though entitled to relief, have not been entirely free from blame in the matter before the Court (/). Costs under Where a deed is set aside as fraudulent under the 13 Eliz. c. 5. statute 13 Eliz. c. 5 it has been held that the utmost the Court can do for the trustees is not to order them to pay costs (g). But trustees have been ordered to pay costs where by their conduct the proceedings have been rendered nec- essary (h), or where they have actively supported the deed (»'), or have made themselves accessory to a fraud, as by signing a false receipt on the back of the deed (fc). [* 546] *A plaintiff suing to set aside the deed may, (., the receipt of which the said A. B. hereby acknowl- edges [or whatever else the consideration may fie], he the said A. B. doth hereby [ *573] assign unto C. I)., his executors, * administrators and assigns, all and singular the several chattels and things specifically described in the schedule hereto annexed, by %vay of security for the payment of the sum of £ and interest thereon at the rate of per cent, per annum [or whatever else may he the rate'] . And the said A. B. doth further agree and declare that he will duly pay to the said C. D. the principal sum aforesaid, together with the interest then due, by equal payment of £ on the day of [or whatever else may he the stipulated times or time of pay- ment']. And the said A. B. doth also agree with the said. C. D. that he will [here insert terms as to insurance, payment of rent, or olhn-wise, which the parties may agree, to for the maintenance or defeasance of the security.] Provided always that the chattels hereby assigned shall not be liable- to seizure or to be taken possession of by the said C. D. for any cause other than those specified in section seven of the Bills of Sale Act (1878) Amendment Act, 1882. In witness, &c. * Signed and scaled by the said A. B. in the presence of me, E. F. [add witness's name, address, and description] (5664) CASES FROM COXE AND MELMOTH MSS. 579 Cases selected from the valuable Coxe and Melmoth MSS., and published by permission. No. V. Stokes v. Stokes. Melmoth MSS., Vol. I. p. 23. The plaintiff and her husband living in some difference, they agreed to part, and he was to allow her £20 a year for a separate maintenance. Thereupon he entered into articles with two friends of his wife's to pay her £20 a year during so long time as she should live apart from him and should maintain herself at her own charge, and the trustees covenanted to save him harmless against all debts that his wife should contract during the time that they lived asunder. The husband paid the £20 a year for some time, but afterwards being sued for a debt of his wife's (in which action the plaintiff was nonsuited and paid the usual costs), he refused to pay the £20 a year, and thereupon the wife preferred a bill against her husband and the trustees to have an execution ot this agree- ment, to which the husband put in his answer, and thereby confessed the agree- ment, but said that he was willing to receive his wife, and said that if she would come home to him he would provide for her, and therefore prayed that the articles might.be set aside. And itwas*urged in his behalf that to decree [*574] a performance of this agreement would be to decree a divorce, which this Court would never do; and so my Lord Nottingham refused to do in the case of Mildmny v. dlildmay (a). But it was answered by the Court that this differs from that case, for there was an elopement, but here is a parting by consent, and the husband had put it out of his own power to take his wife, for he has agreed to pay her £20 so long as she will live from him and maintain herself, and accordingly it was decreed that the articles were good, and that the hus- band should pay the arrears and the growing rent, out of which should be de- ducted what the suit had cost hini over and above the costs received upon the nonsuit; but the defendant was to pay the costs of this suit. No. VI. Vernon v. Yaldon. Melmoth MSS., Vol III. p. 238. Obligee in a bond gives a declaration of trust declaring that his name was used in trust for A., and afterwards he assigns this bond for a valuable consid- eration to B., who has no notice of the deed of trust. Obligee dies and B. gets administration. The plaintiff, who was the obligor, brings a bill of inter- (a) 1 Vern. 53. (5665) 580 CASES FROM COXE AND MELMOTH MSS. pleader against A. and B., who both claimed the debt, and the question was to whom it belonged. It was insisted for B., that, having taken administration to the obligee, he had both law and equity on his side, and therefore was in a better condition than A., who had only equity, as where a man purchases and takes a conveyance in the name of a trustee, and assigns his equitable interest to one, and afterwards makes a second assignment of his equitable interest to an- other for a valuable consideration, who has no notice of the first assignment, and the second assignee gets in the legal estate from the trustee, he shall hold against the first assignee. The Master of the Rolls (I) was of opinion that B. had no right to the money due on the bond, for, though he was administrator to the obligee, and had by that means the legal interest cf the bond in him, yet he could be in no better a condition than the intestate was, and could only stand in his place, and he was no other than a trustee for A., to whom he had given a deed of trust; and as to the subsequent assignment nothing passed by that, for he had no equit- able interest then remaining in him, having before executed a deed of trust, and therefore differs from the case mentioned, where a cestui que trust, who had an equitable interest in him, makes a first and second assignment of that interest. [* 575] *No. VII. Barnardision v. Simpson. Melmoth, Vol. IV. p. 255. The defendant Simpson having used his wife with great cruelty and turned her out of doors, she libelled against him in the Spiritual Court for a divorce for cruelty and adultery; upon which he, being sensible of his fault, employs a friend to mediate a reconciliation, and several meetings were had for that pur- pose between him and some friends of the wife, who insisted that a settlement should be made upon her, which he agreed to, and accordingly transferred ,£1200 South Sea Annuities to trustees upon trust to permit the wife to receive the dividends during her life for her separate use; which trust was declared by a deed in writing. Upon these terms the wife surceases her suit in the Spiritual Court, and agrees to cohabit again with her husband, which she accordingly does, and during such cohabitation the defendant borrows money of the plaintiff and con- fesses a judgment for securing it, and the wife had solicited the plaintiff to lend her husband the money, and to induce the plaintiff so to do told him her husband had an estate in Jamaica, but took no notice of the settlement of the annuities. After this the defendant falls out again with his wife, uses her ill, and turns her out of doors the second time, upon which she brings a new suit for a sepa- ration and obtains a sentence accordingly. (6) Sir J. Jekyll. (5666) CASES FROM COXE AND MELMOTH MSS. 581 The plaintiff's bill was to charge the annuities with his 'judgment and to have a satisfaction thereout of his debt. The consideration mentioned in the deed of trust was only that of a mar- riage had and of love and affection of the defendant towards his wife, and though it was not mentioned to be for divers other good causes, &c, yet the defendant, the wife, was allowed to mad proofs to show the annuities were transferred upon another consideration besides what was mentioned in the deed; which being fully proved, the Master of the Rolls (c) (though it was in- sisted for the plaintiff that if the wife had proceeded in her suit she could only have obtained a sentence for separation and alimony, which alimony would have ceased upon the cohabiting together again, and the settlement came only in the room of alimony) was clear of opinion that the settlement was made upon a good consideration, and not fraudulent as against the plaintiff, and therefore dismissed the bill with costs. *No. VIII. [* 576] Stanfleld v. Miller. Coxe MSS., M. 336. The bill in this case was by the plaintiff, as administrator to his brother, to have a discovery and account of several bonds and notes which belonged to the intestate, The defendant insisted that he was entitled to them, for that the intestate before his death gave them to him, with his own hands, as a free gift, he be- ing then and having been long before a servant to the intestate. But the Court decreed the bonds and notes to be delivered up to the plaintiff, for that the same being choses in action and not assignable in law, nothing vested in the defendant by such gift to take away that right which is in the plaintiff as administrator and representative of his brother, and this though there was no creditor in the case, for there was no consideration for the gift to support an equitable interest. No. IX. Cracker ode v. Hallam. Melmoth MSS., Vol. V p. 112. One Meadows upon his marriage settled lands to the use of himself for life, then to his wife for life, remainder to the heirs of her body by him begotten, remainder to him in fee. (c) Sir J. Jekyll. (5667) 582 CASES FROM COXE AND MELMOTH MSS. Some time after the marriage Meadows and his wife having several children, they agreed to make a new settlement, and accordingly a fine was levied, and by deed they declared the uses to Meadows for life, then to his wife for life, remainder to trustees and their heirs upon trust to sell, and to divide the money arising by the sale equally amongst all the children. Afterwards Meadows mortgages to the plaintiff, who had notice of the sec- ond settlement, and after the death of Meadows and his wife the trustees sell the estate to defendant/ who had no notice of the plaintiff's mortgage. The plaintiff's bill was that the defendant might redeem his mortgage or be foreclosed. The question was if the second settlement was voluntary or not, being made after marriage; for if it was voluntary it was fraudulent and void as against the plaintiff, though he had notice, he being a purchaser for a valuable consid- eration. [ * 577] "The Master of the Eolls (rf) was clearly of opinion that the second settlement was not voluntary ; but made upon a good consideration. The wife was tenant in tail by the first settlement, and that estate tail could not be barred without her consent and by her joining with her husband; and she contracts with him to levy a fine, and bar her estate tail in considera- tion of his agreeing, instead of letting the estate go to the eldest son, that after their death it should go amongst all the children equally; and her parting with her estate tail was a good consideration for making the second settlement. And he said that though he did not know that this case had ever been determined ; yet there were several case parallel to it : and particularly mentioned the cases where a woman after marriage agrees to levy a fine to bar her dower, and in consideration thereof her husband makes a settlement upon her : this will not be voluntary. And he said there was no doubt but a man and his wife might contract together, and she may contract and be bound by the medium of a fine. And he thought this a very clear case, and dismissed the plaintiff's bill. No. X. Higden v. Watkinson. (e) (e) S. C. sub. nom. Higden v. Williamson, 3 P. Wms. 132. Melmoth MSS., Vol. V. p. 300, and see ib. 196, 226. A sum of money is devised to a woman for life, and after her death to such of her children as should be living at her death. The defendant, who was one of the children, becomes a bankrupt in the lifetime of his mother, and the com- missioners assign his contingent interest in this money to the plaintiffs. (d) Sir J. Jekyll. (5668) CASES FROM COXE AND MELMOTH MSS. 583 The bankrupt obtains his certificate and then the mother dies. The ques- tion was whether this contingent interest was assignable, and whother the bankrupt's share of the money belonged to him or to the creditors. The Master of the Rolls decreed it to. the plaintiffs, the assignees, and the bankrupt appealed from'this decree. And now it was insisted ior the assignees that this contingent interest was assignable by the Statute of Elizabeth which says that the commissioners may assign all things that the bankrupt may lawfully depart with. Every right, interest, or possibility which a bankrupt may lawfully depart with is vested in the assignees. (Goodwin, "Of Bankrupts," 83-4.) Conditions of re-entry have been held to vest in the assignees. It is no objection to say the defendant during the life of his mother had only a mere possibility, for a possibility may be devised (Poll. 44), and though it is not assignable at law, yet it may be assigned in equity, *and so it was [ * 578] determined by Lord Cowper in the case of Tibbald v. Dufay (/), which was a devise of a term to one for life remainder to A. and B. during the remainder of the term. A. marries, and she and her husband in the life of tenant for life assigns her moiety; and though she had only a possibility, for the tenant for life might have outlived the term, j-et the assignment was decreed good against the wife, and the decree was afterwards affirmed in'the House of Lords. In the present case the defendant might have released his interest in the money to the trustees in the life of his mother ; and therefore, though he had but a possibility, yet it was such an interest as he might lawfully depart with, and consequently is within the words and meaning of the Statute of Queen Elizabeth, and therefore it was prayed that the decree might be affirmed. For the defendant it was said that in the case of a devise of a remainder of a term after an estate for life, although it is but a possibility (for in the eye of the law an estate for life is looked upon as larger than an estate for 1000 years), yet the remainderman has an interest vested in him. It is certain he is the person entitled to take if he survives the tenant for life during the term. Equity considers this as a vested interest. But in our case the portion is un- certain. The bankrupt at the time of the commissioners' assignment might not have been the person that was to take. He mightnot have been in esse at the death of his mother. If he could have released (which is not clear), yet that is not such a departing as is within the Statute ; but he ought to have such an interest as he might transfer or assign. As to a condition mentioned on the other side to be assignable, that is a vested interest; a condition will descend and go to the heir. Upon the whole it was said there was no case where » thing so contingent that it was wholly uncertain when the person would ever be entitled, could be assigned, even in equity. Lord Chancellor (g), after a few days' consideration, affirmed the decree. He said the certificate did not entitle him to any interest which he- had before. This was an interest although it was contingent ; and he laid a great stress upon the words in the Statute, lawfully depart with. (/) Theobalds v. Duffoy, 9 Mod. 102. (g) Lord King. (5669) 584 CASES FROM COXE AND MELMOTH MSS. [ * 579] *No. XI. Witherden v. Jumper. Melmoth MSS., Vol. V. p. 252. Defendant after his marriage covenanted that £1500 South Sea Annuities should be sold and laid out in lands, to be settled upon his wife and younger children; afterwards he contracts debts, and assigns over the annuities for satisfaction of debts in a schedule. Plaintiffs being some of the scheduled creditors, bring their bill to have the annuities sold and the debts paid; and it was so decreed; the Master of the Rolls (h) without any difficulty declaring the settlement, being after marri- (A) Sir J. Jekyll. age, was fraudulent against the creditors, and that is was not material whether the debts were contracted before or after the settlement. No. XII. Anon. Coxo MSS., N.. 108. A feme 'sole before her marriage deposited her money in her brother's hands and by articles between them in writing declared that the same should be placed out at interest in the name of the brother, and the interest be paid to her for her life, and then to her issue, and for want of such issue to her brother. After this the feme married, and with her husband brought a bill to have the money paid to the husband and, the articles being voluntary, decreed accord- ingly. No. XIII. Rock v. Dade. Melmoth MSS., Vol. I. p. 108. A woman, being seised in fee of lands, marries a second husband, and before her marriage conveys this estate to him and his heirs, and he covenants to charge it with £1000 for the children of the wife by her first husband; accord- ingly, after the marriage he settles this estate and charges it with £1000, pur- (5670) CASES FROM COXE AND MELMOTH MSS. 585 suant to his marriage agreement, and *then entails it upon his own [ * 580] children; after this he borrows money upon bond and dies, and the question ■was, if this settlement was fraudulent against a bond creditor. Sir Simon Harcourt for the defendant: — In this case the husband was not in- debted at the time of the settlement, and I never knew it said that when a man makes a settlement as a provision for his family and is in good circum- stances at that time, that this was fraudulent; the circumstances of the party is a matter that the judges upon trials in such cases do always direct to be in- quired into. Mr. Vernon: — This is a matter purely at law and triable there; besides, they have not proper parties before the Court, for they have only the widow who has an estate for life, and not the heir whose estate they would charge. Lord Chancellor (i): — They have not proper parties here, and therefore no decree can be made; but this much I may say, that it is a case very proper for this Court, for it is certain that the settlement is good as to the £1000, and. therefore it is very proper for the plaintiff to come here to redeem that mort- gage, in case the settlement does not stand in their way; and truly I cannot but declare so much of my opinion as to say that when a man makes a volun- tary settlement to provide for his family and keeps in possession of this estate, and upon the credit of that contracts debts, it will be hard, I think, to make this a good settlement against creditor, and to say that an inquiry shall be made what the circumstances of the man were at the time of the settlement is a great fineness, and cannot be supported on solid reason; for may not a man make a settlement to secure his estate against future creditors as well as present? But now in the case before us there are two powers of revocation which makes it still the stronger. 1. A power for the man and his wife jointly during the coverture to revoke, so that he has in effect the power in himself, foi-the wife is sub potestate viri. 2. There is a power for him to revoke if he survives his wife, paying £1000 to his wife's children. But I give no opinion. Serjeant Hooper for the plaintiffs: — We may have a decree to inquire into the personal estate, and if it appears the £1000 has been paid out of that, we may stand in the room of the mortgagee, and have a satisfaction out of the real estate; which was agreed, but afterwards they thought it more proper to pay the costs of the day and pay no decree, and so bring the heir before the Court. (i) Lord Cowper. (5671 ) (5672) INDEX. [The pacing refers to the [*] pages.] ACCEPTANCE of trusts by trustees, 451-453: see Tkust; Trustee. ACQUIESCENCE— (see Delay; Laches) creditors barred by, when, 181-185 in acts of bankruptcy, 181 gift or voluntary settlement confirmed by, 506, 507, 508 onus on whom to prove, 507 delay evidence of, 507, 508 ACT OF BANKRUPTCY, assignment of whole property, 12, 436 fraudulent conveyance of property or any part thereof, 11, 12 n. voluntary settlement by husband of property in right of wife if void under 13 Eliz. c. 5, whether an, 12 13 fraudulent preference under Act 1883: 102, 436 conveyance by a trader or non-trader of whole or substantially all property to trustees for creditors, 94, 95, 436 assignment of whole property to secure past debt, 94, 95 past debt and advances whether, 95 advance alone whether, 96 complete on execution of deed, 96 must be within period fixed by Act, 96 marriage may be, 89 n. creditors acquiescing in, barred, 181 ACTION, WHO CAN BEING, UNDER 13 ELIZ. C. 5, any person who ranks as creditor, 518: see CREDITOR. subsequent creditor when any prior creditor still unpaid, 518, 519, 520: see Subsequent Creditor. whether if all prior creditors paid, 520 not creditor, when, 220 even if no debt due and unpaid, when, 520, 521 not it settlement for value and then no debt, 521 not if action adverse to prior creditors, 521 creditor, although debtor not insolvent or bankrupt, 522 not creditor, if a debtor on balance on account, 522 trustee in settlor's bankruptcy, 522 inspector under settlor's deed of inspectorship, 522 not executor or administrator of settlor, 525 not committee of lunatic settlor, 525 bankrupt settlor not proper,party to, when, 522 (5673) 588 INDEX. [The paging refers to the ["] pages.] ACTION— (continued) ON BEHALF OF SELF AND ALL OTHER CREDITORS UNDER 13 ELIZ. C. 5, when settlor alive and not bankrupt, 525 when settlor dead, for administration of estate, 526 UNDER 27 ELIZ. C. 4, for specific performance, when enforced, 511-513: see Specific Perform- ance. whether hy creditors of settlor, 512, 513 parties to, 514 UNDER STATUTES OF ELIZABETH, where brought, 531 533 when in County Court, 523, 524 when in High Court, 522-524 declaration of Court in, 528, 529 VOLUNTARY SETTLEMENT, for rectification of, not against settlor, 481: see Rectification. when, 481, 482 in Chancery Division, 482 not a short cause, 482 set aside by, for undue influence, when, 483 etseq. . see Undue Influ- ence. , WILL, to set aside, for undue influence, 498 in Probate Division at time of probate, 498 ACTUAL FRAUD— (see Fraud) must be proved to avoid conveyance for value, 93 et seq. avoids purchase in name of third person under 27 Eliz. c. 4: 202 ADMINISTRATION action for, assigned to Chancery Division, 532 after judgment for, executor cannot prefer creditor, 110 cost of action for; in discretion of Court, 544 legal liability though no legal transfer, when enforced in, 398, 399 ADMINISTRATOR of settlor cannot impeach his settlement, 525 fraudulent alienation good against, when, 70 power of, to defeat execution, 107 et seq. over assets of deceased, 108, 109 cost of, 544 voluntary conveyance by, void against creditors, when, 166 See Executor. ADMISSIONS OF MONEY DUE ON MORTGAGE not allowed, 218, 512 ADVANCE, a valuable consideration, 132, 250, 252 by third person, a consideration for settlement, 252, 365 ADVICE, independent, want of, 496 See Undue Influence. ADVOWSON, SETTLEMENT OF, within 27 Eliz. i-. 4: 203, 220 AFFIDAVIT— (See Description; Occupation) under Bills of Sale Act, 1878, what, necessary, 156, 157 1882, what, necessary, 156, 157, 158 as to documents must be made under statutes of Elizabeth, 540, 541 (5674) INDEX. 589 [The paging refers to the [•] pages. 1 AFTER-ACQUIRED PROPERTY, when validly assigned under Bills of Sales Acts, 1854, 1878 : 160, 1G1 bill of sale as to, how far void under Act 1882 : 101, 162 contract by married woman binds, when, 282 AGENT — (see Principal ; Undue Influence) gift to, 484 lease to, third person taking, 504 costs of, 532 liability of principal penal ty for, when, 541 AGREEMENT, judgment confessed by, not purchase of land, 227 mining, a purchase, 220 ante-nuptial, written, followed by post-nuptial settlement, 368, 369 written, must be what, 369 parol ante-nuptial, before Statute of Frauds, 370, 371 : see Parol Agree- ment. since Statute of Frauds, 371 and part performance, 371-374 and post-nuptial settlement, 375-382 when proved by post-nuptial deed, 383 voluntary, 389 et seq. : see Voluntary Agreement. enforced only if for value, 389, 390 for value between A. and B. for benefit of C, when enforceable by C, 391, 392 for separation, when enforced, 301 et seq. : see Separation Deed. ends when, 313. for future separation void, 312, 469 imperfect assignment operating as a, formerly, 447, 448 to be judged of at time made, 312 to reduce promise to writing prevented by fraud of one party, 388 to sell land not enforced for voluntary vendor, 511, 512 : see Specific Per- formance. whether always enforced in toto, 534 ALIMONY— (see Separation Deed) covenant against claim for, 304 subject to husband's debts, 309, 310 ALLOWANCE— (see Separation Deed) to wife on separation, 302 AMERICA, statutes of Elizabeth apply in what States, 2, 10 AMERICAN LAW UNDER 13 ELIZ. C. 5, declaratory of common law, 3 as to voluntary settlements by tradors, 53 law as to indebtedness, 50 test of voluntary settlement, 50, 53, 54 subsequent insolvency, if unforseen, will not avoid deed, 53 valuation of settlor's assets and liabilities at time of settlement, 60 voluntary conveyance void against creditors good otherwise, 69 in favour of wife or children not therefore void against subsequent creditors, 77 conveyance for value to defeat execution good, 99 power of revocation a strong mark of fraud, 111 on doctrine of Edwards v. ffarben, 120 on possession of personal chattels and real property, 113, 116 43 stat. of ei.iz. (5675) 590 INDEX. [The paging refers to the [•] pages.] AMERICAN LAW— {continued) tinder 13 eliz. c. 5 — {continued) Whoever is owner of debt can enforce it, 168 parol ante-nuptial agreement will not set up post-nuptial settlement against creditors, 383 purchase in name of wife, child, third person,- 21 voluntary settlement of property if removed from creditors void against, 33 b. motive of settlor alone material, 45 n. marriage settlement only avoided if husband and wife commit fraud, 91 n. power of revocation mark of fraud in settlement, 111 n. possession of real estate after sale not a presumption of fraud, when, 11G n. creditors .and others, who are. 163 corporation whether a creditor, 525 n. subsequent creditor can impeach settlement, when, 520 »., 521 n. ' UNDER 27 ELIZ. O. 4. declaratory of common law, 3 judgment creditor not a purchaser, 229 purchaser from other than voluntary settlor not a purchaser, 241 from either fraudulent grantor or grantee, when protected, 326 rights of first purchaser, whether from grantor or grantee, prevail, 328, 329 as between volunteers priority of date confers title, 329 parol ante-nuptial agreement will not set up post-nuptial settlement against purchasers, 383 contract may be enforced by a person stranger bath to it and considera- tion, when, 392 voluntary covenants enforced against settlor's estate, 401 agreement not enforced in, 390 n. permanent improvements allowed for when relief given against person in possession, 514 voluntary conveyance upheld against purchaser with notice, 5, 196 against purchaser without notice in United States, 5, 76 under statutes of Elizabeth conveyance voidable only, 325 n. AMOUNT — {see Assets ; Surplus) < of property withdrawn from creditors by settlement, 55 unsettled, 55 of consideration necessary under statutes of Elizabeth, 244, 245, 247, 248 : see Consideration. ANCESTOR'S DEBTS, gift by heir void against, 165, 333 devisee void against, 166, 333 ANNUITANT by general charge not a purchaser, 235 ANNUITY contingent within 13 Eliz. c. 5 : 22 to wife a consideration to husband, 366 gift of, 22, 86, 87 arrears of, good consideration, 255, 256 ANSWER, deed impeached by settlement coming out in, 518 refusal to, interrogatories under statutes of Elizabeth, 539, 540 ANTE-NUPTIAL SETTLEMENT : see Marriage Settlement. (5676) INDEX. 59^ [The paging refers to the [*] pages. ] APPARENT POSSESSION— (sec Possession) under Bills of Sale Act, 1854: 136 •what under Bills of Sale Act, 1878 : 136, 137, 150 when it exists, 151 ■when it was excluded, 152 not under Bills of Sale Act, 1S82 : 152 APPOINTMENT— (sec Power) general, by deed, within 13 Eliz. c. 5 : 31, 33 particular power of, not within 13 Eliz. c. 5 : 31, 33 general, by deed by married woman, not within 13 Eliz. c. 5 : 31 deed with power of, lost power of revocation not inferred, when, 501, 502 exercise of power of, by debtor, when restrained by creditor, 531 ASSETS, settlor's, nature of, 53 value of implements of trade how far, 60 test of same under Bankruptcy Acts, 59, 00 debt due when not, 60 valuation of trader's, how made by Court, 60 must be available at time of settlement, 42, 49, 51, 59 goodwill not, 59, 69 plant of business not, 60 for creditors, property fraudulently alienated is, after death of settlor, 69 marshalling, for volunteers, 209 535 not against volunteers, 209 n., 535 not as, between two volunteers, 535 bill for satisfaction of, against voluntary debt of testator, 399 promise not enforced against, of promisor, 399 ASSIGNEES— (see Bankruptcy ; Trustee) by general words, whether purchasers, 231, 233 voluntary, of debt now creditors, 168 of lease, purchaser under 27 Eliz. c. 4 : 221 of bankrupt are creditors, 170, 171 may sue under 13 Eliz. c. 5 : 170, 171 not purchasers under 27 Eliz. c. 4 : 233, 234 w"hefher they can defeat a settlement by a sale, 233 n. f appointed after suit under 13 Eliz. c. 5, commenced, 522-524 bill of sale void against, 136 : see Bills of Sale. ASSIGNMENT— (nee Act of Bankruptcy ; Creditors' Deeds ; Gift, When Complete ; Generality) of whole property not therefore void under 13 Eliz. c. 5 : 11, 12, 96, 97 under 13 Eliz. c. 5, not if bona fide, 97 is an act of bankruptcy, when, 11, 12, 94, 95, 96 to trustees to pay creditors, when within 13 Eliz. c. 5 : 87, 88, 89, 98 to defeat particular creditor upheld, 105, 106 of after-acquired property under Bills of Sale Acts, 160, 161 : see Afteb- acquired. for illegal purposes not carried out, assignor may recover property subject to, 471, 472 to trustees to pay debts, 433 et seq. : see Creditor's Deeds. by general words not a sale, 231, 233 voluntary, what is a complete, 451 et seq. void at law only an agreement in equity, 447, 448 of equitable chose in action, 411, 417 et seq. : see Choses ix Action. of debts and other legal choses in action, 411, 412, 447, 453 et seq. of choses in action under statutes, 410, 411 ATTEMPTS TO TRANSFER LEGAL ESTATE : see Gift ; Gift, When Complete. (5677) 592 INDEX. [The paging refers to the [*] pages.] ATTESTATION of bills of sale under Act 1878 : 13(5, 155 1882 : 138, 15G by solicitor, 155, 156 by witness, -what, 156 et seq. ATTORNEY— (see Solicitor) power of, exercised after tleath of donor, 412 gift of, whether a declaration of trust, 418, 420 power of, not now necessary, when, 456, 457 ATTORNMENT— (see Bills op Sale) whether clause in bill of sale now avoids it, 140 141 AUSTRALIA, statutes of Elizabeth apply in, 3 BADGE OF FRAUD in cases of undue influence, 496, 497 power of revocation in voluntary settlement, when, 499 absence of power of revocation in voluntary settlement, when. 499 et seq. IN CONVEYANCE FOE VALUE, generality of gift, 94, 97, 98 continuance in possession, 98 : see Possession. secrecy, 99 conveyance pendente lite, 99 by debtor to defeat execution not a, 107 by executor, 107, 108 by debtor to prefer a creditor not a, 107 settlor taking some benefit, not necessarily a, 110, 111 power of revocation, 111 it for a particular purpose may not be, 112 fraudulent marriage, 89 et seq., 332 vendor and purchaser must have notice of fraud, 78, 79 sale to relation not, 81-83 settlement of purchase-money, 86, 87, 535 IN VOLUNTARY CONVEYANCES AGAINST EXISTING CREDITORS, amount settled, 55 all circumstances of settlor at the time, 35, 50, 51 gift to relative, 56, 57 indebtedness, 35 et seq insolvency, 39, 41, 42 nature of. debts and assets, 57, 59 y small debt unpaid, 39, 49 settlor engaging in trade soon after, 51 et seq. IN VOLUNTARY CONVEYANCE AGAINST SUBSEQUENT CHKOITOBN. generality of gift, 66 continuance in possession of settlor, when, 67, 70 : see Possession. conveyance j ust before action brought, 71 by a man about to become indebted, 65, 70, 75 after service of debtor's summons, 99 pendente lite, 70, 73, 74 just before decision, 70, 71 to defeat forfeiture, 71, 42 execution, 72, 99 sequestration, 72, 73 debt soon due, 73 contingent liability, 73, 74, 75 with power of revocation, 76 benefit to settlor, whether, 76 no reason for settlement, whether, 75 (5678) INDEX. 593 [The paging refers to the [" ] pagen. ] JUNK NOTES within 13 Eliz. c. 522.: sec Cheque. BANKRUPT, action under 13 Eliz. c. 5, though settlor not, 522 settlor, jurisdiction of High Court as to, 522-524 assignees or trustees of, 522 : scp Assignees ; Trustee. settlor, trustee of, a creditor-, 170, 1T1 not a purchaser, 233 action against, by trustee, 522 not proper party to action, when, 522 title of trustee of, higher than of settlor, 523 BANKRUPTCY— {see Act of Bankruptcy) 13 Eliz. c. 5, works concurrently with, 10 differences between 13 Eliz. c. 5, and, 10, 11, 12 equal distribution of assets the principle of, 11 voluntary settlements when avoided by, 12, 42, 460 retrospective, when, 43 assignees and trustees in, are creditors, 170, 171 : see Assignees ; Trustee. of settlor during action, 524 when proceedings by trustee to avoid settlement should be in Court of, 522-525 should be in County Court, 523, 52 1 when action by trustee to avoid settlement should be in Chancery Division, 522-524 jurisdiction of High Court in, nature of, 523 bill of sale void against trustee or assignee in, 136 et seq. : see Bills of Sale. reputed ownership in, applies when, 127 et seq., 135 : see Reputed Own- ership. BARGAIN — (see Limitations in Marriage Settlement) between husband and wife consideration for post-nuptial settlement, 287- 292, 294, 295, 296, 367 between husband and wife, whether now consideration for post-nuptial set- tlement, 295, 367 marriage contract question of, 352, 355-358 presumption of, when and when not made, 358 et seq. BENEFIT retained by voluntary settlor not necessarily avoids deed under 13 Eliz. c. 5: 11, 76, 96, 97 secret, fraudulent, 118 n. none intended to grantee, when, 433, 463 BILL : see Action. BILL OF EXCHANGE, gift of, 410 transfer of, by law merchant, 541 by statute, 410 BILLS OF SALE, object of, Acts only to protect creditors, 136 Acts apply only to personel chattels, 136 may be avoided, how, 137, 138 duly registered, may be void against creditors, 137 three classes under Acts 1878 and 1882 : 138 unregistered, void against whom, 136, 153, 465 transaction when possession at once thereby transferred not within Acts, 146 (5679) 594 INDEX. [The paging refers to the [*] pages. ] BILLS OP SALE— (continued) UNDER ACT 1854, requisites of, 130 successive, 154 assignments of crops, 150 description of grantor and witness, 156, 157 execution wholly avoided, unregistered, 153 UN DEE ACT 1878 requisites of, 136, 137 consideration for, need not be stated bofore Act 1878: 141 whether valuable, 141 real consideration must be stated, 141 what is consideration, 141, 142 amount of consideration, when properly stated, and when not, 142, 143, 144 circumstances of advance, whether truly stated, 144, 145, 146 what is a, depends on Act 1878: 140 affidavit, must be what, 156, 157 what is due execution of, 157 due attestation of, 157 sufficient or insufficient description of grantor, 157, 158, 159 of attesting witness, 158 of occupation, 159, 160 description of place where goods are. unnecessary, 160 of grantee on re-registration, what, 160 after-acquired property, assignment of, by, 160 what is a, 146, 147 what is not a, 148, 149 what are personal chattels, 149 what are not personal chattels, 149, 150 apparent possession of grantor when avoids, 150, 151 when excluded, 151, 152 reputed ownership does not apply if registered, 152, 153 during time allowed for registration, 153 applies to unregistered or improperly registered, 153 execution only avoids unregistered, so far as necessary, 153 registration, 153 test of priority of, what, and when applied, 154, 155 transfer of registered, when does and when does not need registration, 155 registration renewed, when, 155 attestation of execution of requisites, 155, 150 after-acquired property, assignment of, when valid and when void, 160, 116 by company, 162 debenture, 162 UNDER ACT 1882 requisites of, 137 applies only to, as security for payment of money, 137 object of, 137 applies only from what date, 137 consideration, whether valuable, 141 must be in accordance with form in schedule, 138 in consideration of not less than £30 : 138 duly attested and registered under Act 1878: 138 truly set forth consideration, 138 test when in accordance with form in schedule, 13H, 139 void against all persons if not in accordance with Act, 140, 465 if void, is so in toto, 140 deed with attornment clause or power of distress, whether void, 140, 141 consideration truly stated, 141 whether right to immediate possession given to grantee or not, 146 (5680) INDEX. 595 [The paging refers to the p] pages.] BILLS OF SALE— (continued) UNDER ACT 1882 — (continued) apparent possession not, 152 ' reputed ownership applies, 153 execution creditor, 138, 140, 153 registration, 154 execution of requisites of, 156 affidavit, what, required as to, 156, 157 after-acquired property, law of, altered, 161 of after-acquired property void, when and against whom, 161, 162 valid as to existing property specifically de- scribed, 162 by company, 162 debenture of company, when not, 162 BOND — (see Gift, "When Complete) delivery of, 115 gift not complete by, when, 454, 455 voluntary, proof of consideration for, 267 creates legal debt, 398 given to screen from taxes, 473 n. to bearer, gift of, when, 407, 408 not to bearer, gift of, when, 410, 457 East India, gift ol, when, 411 BOOK DEBTS, assignment of, 115 assignment of future, by bill of sale, 161 BREACHES OF TRUST— (see Trustee) trustees cannot re-transfer to settlor without, when, 425, 426 by voluntary trustees, 460 costs of, 553 BROTHER— (see Undue Influence) gifts to, 495 BUILDING AGREEMENT when not bill of sale, 148, 149 CANADA, UPPER, statutes of Elizabeth in force in, 3 property which can be taken in execution is within 13 Eliz. c. 5, in, 23 n. English law as to settlements by traders applies in, 53 n., 66 n. what is indebtedness applies in, 50 test of voluntary settlement applies in, 50 notice to purchaser in conveyance "for value applies in, 78 7i. law as to express intent to defraud against future creditors in, 36 n. conveyance on meritorious consideration on same footing as voluntary in, 56 n. marriage settlement only avoided for fraud of parties in, 91 n. payment of existing creditors by creating fresh will not uphold settlement in, 520 n. subsequent creditor cannot impeach settlement, when, in, 520 n. judgment creditor not purchaser in, 224 «. CANCELLATION of voluntary deed by settlor, 459. when ordered, 530 not generally ordered under statutes of Elizabeth, 529, 530 of deeds assigned to Chancery Division, 533 (5681) 596 INDEX. [The paging refers to the [*] pages. ] CESTUIS QUE TRUST— (see Gift, When Complete ; Trust ; Trusted Volunteers) notice of trusts, to, 443, 451, 453 gifts to, unnecessary, 472 undue influence of trustee over, when presumed, 486,487, 492 gift or voluntary settlement by, on trustee, when voidable by, 488, 492 costs of, when deed set aside under 13 Eliz. c. 5 : 547, 548 under 27 Eliz. c. 4 : 550 for fraud or undue influence, 551 CHANCERY DIVISION, what business assigned to, 532, 533 CHARGING ORDER, action under 13 Eliz. c. 5, without, 527 CHARITABLE USES, Statute of, 206 CHARITY, conveyance to public, whether void against purchaser, 205, 206, 217 to private, whether void against purchaser, 206 to, create by Act of Parliament, 206 gift to, how made, 412 CHATTELS, within 13 Eliz. c. 5 : 17 goods and, what, 17 n. real within 27 Eliz. c. 4 : 2, 5, 7, 13, 203, 204 ; see Leasehold other than real, not within 27 Eliz. c. 4:2, 204 : see Personal Chattels. personal, what are, under Bills of Sale Acts, 148-150 what are not, under Bills of Sale Acts, 149, 150 gift of, how made, 407, 408 : see Gift. parol trusts of, 404, 444 donatio mortis causa of, 409, 410 CHEQUE now within 13 Eliz. c. 5 : 22 gift of, 410 now legally assignable, 410 trust not created by, when, 442 : see Gift. donatio mortis causa, of, when, 409, 410 : see Donatio Mortis Causa. CHILDREN consideration between, parents in family arrangements, 265 equity to settlement extends to, .299, 300 within marriage consideration, 336, 337, 341, 342-346 of widow by former marriage, 343, 346, 347 349-351 illegitimate, of widow, 343, 347-349, 351 of widower by former marriage, 352, 353 illegitimate, of widower, 352, 353 of husband or wife by future marriage, 343, 353-356 limitations to, between two valid limitations, 354, 355 contract in favour of, in post-nuptial settlement, 392 in ante-nuptial settlement, 392 defects in execution of powers supplied in favour of, 394, 395, 397 surrender of copyholds not enforced for, 391 are objects of, and quasi parties to, marriage contract, 392 purchasers under marriage settlement, 223, 336, 341, 342 influence of parent over, when presumed, 484, 48S, 489, 490 (5682). INDEX. 597 [The paging refers to the [*] pages. 1 CHILDREN— (eontinnrd) gift or voluntary settlement by, on parent, when voidable by, 488-491 soon after coming of age, 489, 490 when upheld, 489-491 on person in loco parentis, 490 gift to, or voluntary settlement on, by parent upheld, when 491 CHOSES IX ACTION, whether within 13 Eliz. c. 5; 18, 22, 23 goods and chattels, under Bankruptcy Acts, 17 not assignable at common law, 410 what legally assignable by statutes, 410, 411, 453 n. debts and other legal, assignable by Judicature Act, 1873: 411, 412, 45G, 457 tinder Conveyancing Act, 1881: 424 what are: see Colonial Bank v. Whinney, 30 Ch. D. 261 CIRCUMSTANCES, all, of settlor at time of voluntary settlement to be regarded, 13, 15, 35, 50, 53, 67 conveyance for value, 82, 93 , deed impeached for undue influence, 480 what marks of undue influence, 496, 497 fraud when inferred from all, 35, 38, 40, 41, 59 of settlor, how regarded, 54, 55, 75 inquiry as to, 50, 51 all looked at to shew consideration, 268, 269 of settlor when to be regarded under 27 Eliz. c. 4; 14, 15, 187, 188 CIVIL LAW protected creditors, 7 voluntary alienatious under, 7, 45 n. non-voluntary alienations under, 8 purchaser must know of fraud on creditors, 8 made void all manner of fraud on creditors, 7 intention must be shewn at time of alienation, 9 preferential payment of creditor good under, 8, 9 new debts in place of old, 61 «. generality of gift, 66 n. marriage contracts, 332. CLIENT — (see Solicitor; Undue Influence) undue influence of solicitor over, 484, 486-488 confidential relation of solicitor to, 493 gift or voluntary settlement by, on solicitor, when voidable, by 488, 493 upheld against, 493 COHABITATION, subsequent, avoids separation deed, when, 313, 314 deed in consideration of continuing, void, 312 n. COLLATERAL security taken by purchaser with notice of voluntary deed, 196. COLLATERALS not within marriage consideration, 342 limitations to, in marriage settlements, 343, 344, 355 other considerations for limitation to, 345; 361, 362 limitation to, now question of bargain, 355, 356, 357, 362, 391, 392 bargain in favour of, when presumed, 358-360 when not presumed, 361, 362 limitations to, in family settlements, 363, 364 '(5683) 598 INDEX. [The paging refers to the [*] pages.] COLLUSION, of husband and wife, 89, 90, 312 between landlord and tenant, 470 COLONIES, 13 Eliz. e. 5 adopted in most of, 10 COMMON LAW, 1 3 Eliz. c. 5, declaratory of, 3 27 Eliz. c. 4, goes beyond, 6, 7 doctrine of, general and vague, 3 simplicity of, 4 cuoses in action not assignable at, 410 what actions assigned to Divisions, 553 COMPANY, residence of incorporated, 159 bill of sale by, 1G2 debenture by, whether a bill of sale, 162 creditor under 13 Eliz. c. 5; 525 liquidator of unregistered, whether creditor under 13 Eliz. c. 5; 525 COMPLETE GIFT: see Gift, When Complete. COMPROMISE of suits a good consideration, 306, 308 of doubtful claim a good consideration, 272, 273, 276 of indictment a good consideration, 310, 311 when valid, 253, 277, 310, 311 CONCURRENCE of necessary party a valuable consideration, 262. 263 supports what, 263, 264 of feme covert. 263, 284, 285, 286, 293 of husband, whether valuable consideration, 294 of husband in wife's disposition of property, 295 CONFIDENTIAL RELATION— (see Undue Influence} gift or voluntary settlement made during, voidable by donor, 483 et seq. child and father, 484, 488-490 and mother, 491 and person in loco parentis, 490 wife and husband, 483, 484, 491, 492 cestui que trust and trustee, 492, 493 client and solicitor, 484, 493 ward and guardian, 484, 493, 494 miscellaneous instances of, 494, 495 self-imposed relation, 494, 495 burden of proof of, when on donee, 484, 485: see Proof, Burden of. when on donor, 485, 486 whether, must be severed for good or at time of gift only, 493, 503 trifling gift to person .in, upheld, 495 question how intention to give produced, important, 497 as to wills, 497 proof as to ceasing of, what, 503 CONFIRMATION — (see Acquiescence; Delay; Laches) creditors barred by, 181 et seq. of voidable deed, 317, 325: (see Voidable. ) of gifts obtained by undue influence by act inter vivos, 505, 506 by will, 505, 506 of part of deed, when of whole, 506 (5634) INDEX. 539 fThe paging refers to the [*] pages.] CONSIDERATION in bills of sale, 141 et seq. ; see Bills of Sale. cited imports, 400 fictitious, 248 ». 267 nominal, 244, 206 inadequate, 34, 244, 245, 247, 248 good, means valuable, 84, 245, 246 inquiry into, needless if both parties have fraudulent intent, 78, 85 mala fides overrides any, 85, 89, 243 meritorious, of uo avail, 76, 77, 84, 245 against future creditors, 76, 77 notice of deed on, 195, 196 contract on, not enforced, 390 money paid better than past debt, 131, 252 necessary in convevance to defeat execution, 72, 96, 97, 179 forfeiture, 71, 169, 170 must move from person who seeks to enforce, 390 ex turpi causa, 4fa'8 immoral, 468, 469 if none on deed, evidence admissible to prove, 194, 219, 266 none, evidence of fraud, 187, 188 grossly inadequate for second deed does not void first deed, 188, 189 ' meritorious, not good against purchaser whether with or without notice, 192, 195, 196 conveyance on good, when void under 27Eliz. c'. 4: 197, 199 what, necessary under 27 Eliz. c. 4: 218, 219 generally same under both statutes of Elizabeth, 244, 259 when different under the statutes of Elizabeth, 248, 249, 259, 260 between parent and child, 265 CONSIDERATION BETWEEN HUSBAND AND WIFE, giving up previous settlement, 283 release of dower formerly, 283 giving up interest in property in which both are interested, 283, 284, 285 wife's concurrence, when part of bargain, 285, 286, 293 for value, if a bargain, 287 et seq. when wife has whole property, 292, 293 when husband's money laid out on wife's land, 293 when each takes same interests under as without settlement, no, 294 valuable if, on settlement of wife's property, husband gives up any in- terest, 294. 295, 296 mere concurrence of husband, whether valuable, 294 effect of Married Women's Property Act, 1882, on, 295 none now in post-nuptial settlement of wife's property, 295 same principles apply as to, in Ireland, 292 will support separation deed as for value, when, 301 et seq. : see Skpaea- tion Deed. in marriage settlement, 341, 342 et seq. CONSIDERATION EX POST FACTO, deed originally voluntary made good by, 83, 84, 194, 219, 221, 222, 315, 316, 318 principle and reason of, 316, 317 relates back to voluntary deed, 317 of marriage supports voluntary deed against creditors, 318 against purchasers, 318-320, 323 whether sole inducement, 318 merely principal inducement, 318, 319, 320 presumption of inducement necessary, 320, 321 of sale or mortgage or otherwise as against purchasers, 321, 322 J 5685) 600 INDEX. [The paging refers to the [*] pages.] CONSIDERATION EX POST FACTO— {continued). when grantee has altered position on faith of deed, 322, 321! of money or otherwise moving from grantee, whether, makes deed good against creditors, 323, 324 operates from its date as against creditor or purchaser, 326 failure of, will not make deed voluntary, 329, 330 makes good voluntary agreement, 393 CONSIDERATION OF MARRIAGE, settlement on, when set aside, 89, 332, 333 makes parties purchasers, 222, 332 et seq. ex post facto, validates deed, when, as against creditors, 316, 318, 320 as against purchasers, 316, 318, 320 valuable against all persons, 222, 332 supports deed unless marriage itself fraudulent, 89, 90, 91, 332, 333 even if husband embarrassed, 91, 332 applies to what marriage, 334 peculiarity of, restitution not possible, 335, 336, 337 each party bound independently of others, 336,337 issue within, 336, 341, 342 remains even after death of husband and wife, 341, 342 extends to settlement on stranger, 342 value of, independent of money, 342 supports limitations only to husband, wife, and issue, 342, 343, 344,346 limitations to children or issue of former marriage of widow supported by, as an exception, or now if a bargain, 343, 346, 347, 349-351, 352 to illegitimate children of widow supported by, as an excep- tion, or now if a bargain, 343, 347-349, 351, 352 to children or issue of husband or wife by a future marriage supported by, as an exception, or now if a bargain, 343. 353, 354 limitation supported as between two valid limitations, 354,355,356,357 to children or issue by a former marriage of widower sup- ported by, as an exception, or now if a bargain, 352, 353 attaches to which of two marriages, 477, 478, 479 CONSIDERATION, VALUABLE, will not alone support transaction, 78, 84, 110, 188, 243 important when deed is bona fide, 243, 244 what is, 244, 248, 249, 260 as between relations, 246, 247 amount of, not strictly looked into, 247, 248, 251 loan, when, 250, 251 pre-existing debt, 100, 252 conveyance as security 1'or debt, 252 to secure fresh advance, when, 252 continuance of rent, 253 compounding prosecutions, compromises of actions, when, 253 promises, when, 253, 254 indemnity, 254 covenant, 254 giving up voluntary benefits, 254-256 pecuniary advantage, 286 arrears of voluntary annuity, 256 assignment of leaseholds for, always in England, under 27 Eliz. c. 4: 256-258, 259 not always in Ireland, 258, 259 whether under 27 Eliz. c. 4, when freeholds conveyed as well as lease- holds, 259 (5686) INDEX. fiOl [The pngins refers to the [*] rmges. ] CONSIDERATION, VALUABLE— (continued) assignment of leaseholds not, under 13 Eliz. c. 5: 259, 260 in family arrangements, what, 260, 270 et seq., 276 concurrence of person interested, how far, 262, 263, 264 in family resettlements, when, 264, 265, 266 may be proved if not in deed, or nominal, and not inconsistent, 266, 207, 285 judged at time of execution of deed, 268, 269, 270 at time of deed cannot, by failure ex post facto, render deed voluntary, 26S adequate for specific performance usually adequate under statutes of Eliz- abeth, 261, 272 compromise of doubtful rights, 272, 273, 274 exchange of interests, 276, 277 no question of, till grantee knows of deed, 280 CONSOLIDATION of mortgages not under 27 Eliz. o. 4: 209 CONSTRUCTION of statutes of Elizabeth to be liberal, 4, 537 of voluntary deed same as if for value, 461 of penal clauses of statutes of Elizabeth, 537 et seq. v : see Penalty. CONSTRUCTIVE FRAUD— (see Fraud) under 13 Eliz. c. 5- 5, 6, 14, 15, 35, 37, 67 under 27 Eliz. c. 4: 6, 15, 187, 191, 193 CONTINGENT • interest within 13 Eliz. c. 5: 17, 24 annuity within 13 Eliz. c. 5: 22 CONTINUANCE of rent a good consideration, 253 in possession, 113 et seq.. see Possession. CONTRACT — (see Agreement; Husband and Wife; Makbiage Settle- ment) husband and wife might formerly, when, 281, 283 may under Married Women's Property Act, 1882: 281, 284, 285, d03 could not, and cannot, when, 282, 283, 483 by wife binds her present and after-acquired separate property, 282,303, 309 binding only if she then had separate property, 282, 305, 309 enforced by children, as purchasers under settlement, against father, 293, 294 founded on equity to settlement for value, 296, 297 by husband or wife not to sue for restitution of conjugal rights, 308 must be duly executed by wife, 308 r 309 for future separation, whether in ante-nuptial or post-nuptial deed, void, 312 marriage a civil, 331 of marriage, nature of, 331, 332, 336, 337 construction of, question of intention of parties, 357 voluntary, not enforced for volunteers, 389, 390, 391, 397 for value between two persons for benefit of third, 391, 392 between two persons for benefit of third, in America uiay be en- forced, when, 392 made good ex post facto, 393 an immoral consideration, void, 468, 469 void on ground of publ ic pol icy, 469 (5687) 602 INDEX. [The paging refers to the [*] pages.] CONTRACT— {continued) by whom set aside, 469 of infant, how far binding, 483 of insane person, 483 CONTRIBUTION when enforced against volunteer, 535, 536 when not, 536 CONTROL of voluntary deed, parting with, immaterial, 458, 472, 474, 475 CONVENT gift to, by nun, 494, 495 CONVEYANCE — (see Voluntary Conveyance) what, avoided, by 13 Eliz. c. 5: 1 by 27 Eliz. c. 4:' 1,202 on good consideration and bona fide protected by 13 Eliz. c. 5: 2 by 27 Eliz. c. 4: 2, 78, 84 on meritorious consideration on same footing as voluntary, 56, 76, 77 voluntary, against existing creditors: see Creditor. subsequent creditors: see Subsequent Creditor. purchasers: see Notice; Purchaser. CONVEYANCE FOR CREDITORS— (see Creditors' Deeds) not good if not communicated to creditors and not privy to it, 107 merely a power revocable by debtor, 107 executed by creditor, or acted on by, good as to, 107 CONVEYANCE FOR VALUE— (see Badge of Fraud) to avoid, both vendor and purchaser must be parties to fraud, 78, 85 must also be bona, fide to stand against creditors, 84, 97, 111 to impeach, actual and express intent to defraud creditors necessary, 84, 85, 93 not void because creditors may be delayed, excluded, or defeated, 85 payee then insolvent and to knowledge of creditor, 85 made to defeat particular execution, 99, 100 creditor, 107 not necessarily void because settlor takes some benefit, 97, 110, 111 when void against purchaser, 197-200 whether impeached by subsequent creditor if no debt then, 521 impeached for fraud only by creditor for value, 169 COPYHOLDS within 13 Eliz. c. 5: 18, 22 ' money spent on enfranchisement of, not within 13 Eliz. c. 5 : 22 within 27 Eliz. c. 4: 203, 204 surrender to use of will, 394 n. of, not supplied, when, 391, 394 gift of, how made, 412: see Gift. COPYRIGHT, gift of, by assignment in writing, 412 CORPORATION, whether creditor under 13 Eliz. c. 5 : 524, 525 COSTS, promise as to, a consideration, 253 under Judicature Act, 1875: 544 under Rules of Supreme Court, 1883: 544 now in discretion of Court or judge, 544, 545 of executor, administrator, trustee, or mortgagee, 544 (5688) INDEX. 603 [The paging refers to the [•] pages.] COSTS— (continued.) UNDER 13 ELIZ. C. 5, follow event, when, 544 in County Courts under County Courts Act, 1867: 545 Court exercises discretion as to, oa fixed principles, 545 of trustees, 545, 546, 548, 549 in administration action, 546 trustees when ordered to pay, 545 when deed upheld, paid out of settled fund, 546 appealing personally liable for, 546 doubt when debts contracted, 546 other creditors allowed benefit of decree on contributing to, 546 paid out of settled fund, 546, 547, 550 priority of plaintiff as to, 547 given to plaintiff though unsuccessful, when, 547 creditor taking risk allowed full, 547 of cestuis que trust, 547, 548 of assignees in bankruptcy, 548 of trustee, 543 of settlor, 547, 548, 549 unproved charges of fraud, 549 of plaintiff creditor and purchaser, 549 of third persons, 549 UNDER 27 ELIZ. C. 4, IX CASES OF SPECIFIC PERFORMANCE— of trustee, 550 of cestuis que trust, 550 of settlor, 550 IX CASES OF FRAUD AX'D UNDUE INFLUENCE — of donees, 551 of solicitor, 551, 552 of third person, 551 of donor, 551, 552 of plaintiff when not ordered to pay, 552 of trustees, when allowed, 552 upholding deed for absent parties, 552 appealing personally liable to, 546 trustee has no claim to, 552 of breach of trust paid by trustee, 553 trustee cannot appeal from order as to, when, 552 against Bank of England refusing transfer, 553 of proceedings in County Courts, 545 COUNTY COURT. jurisdiction of, in bankruptcy, 523, 524 action under 13 Eliz. c. 5, when to he tried in, 523, 524 costs of proceedings in, under Act 1867: 545 COVENANT— (see Contract) not to enforce bond within 13 Eliz. c. 5: 33 by trader in marriage settlement, when void, 44 in voluntary settlement, when void under Bankruptcy Act, 43, 44 mutual, as to selling after-acquired property, 92 deed void under 27 Eliz. c. 4, when breach of, 202, 468 for quiet enjoyment enforced by mortgagee, 209, 398, 399 against voluntary settlor's estate, 209, 398, 399 when good consideration, 254 by wife binds her separate property, when, 282 of indemnity against wife's debts by trustee or third person for value, 301, 302 (5689) 604 INDEX. [The paging refers to the [*] pages.] COVENANT— (continued) of indemnity by wife alone against her debts, -whether for value, 303, 304 against her debts and alimony, whether for value, 304 by wife's trustees to support children, 305, 306 conditional in separation deed, 305 by wife alone now, in separation deed, 303, 305, 309 not to sue for conjugal rights, for value, 306, 308 by husband not to sue for conjugal rights, for value, 308 must be duly executed by wife, 308, 309 reciprocal by husband and wife not to sue for restitution of conjugal rights, .whether now for value, 310 to live apart enforced, 314 in marriage settlement may be enforced, when, 336, 337 voluntary, not enforced, under seal or not, 389, 390 to surrender copyholds not enforced, 391 for value in separation deed, when not enforceable by children, 392 in post-nuptial contract, when not enforceable by children, 392 in ante-nuptial settlement enforceable by children, 392 in America may be enforced, when, 392 subjecting person to voluntary legal liability, when enforced, 398 voluntary, for further assurance, 400, 536 whether with trustees or cestui que trust, immaterial, 400 voluntary, in America, when enforced, 401 voluntary, conveyance of land not in existence good as a, 401 to pay purchase-money to volunteers if properly sold, 207, 208 to transfer and hold on trust meanwhile for volunteers, 425 See Voluntary Agreement. Coverture— (see marriage) formerly excuse for delay, 509 now no ground for delay, 509 CREDITOR protected by 13 Eliz. c. 5: 1, 7, 9 civil law, 6 et seq constructive fraud against, under 13 Eliz. c. 5: 5, 6 equal distribution of assets among, in bankruptcy, 11 13 Eliz. c. 5, extends to creditors and others, 11 does not affect preference or priority of, 11 fraud against, under 13 Eliz. c. 5, at time of conveyance, 13, 14, 15, 07, 324, 330 property liable to claims of, within 13 Eliz. c. 5: 18, 19, 22, 23 voluntary settlement void against, good for other purposes, 68, 310, 317, 325, 464, 528 consideration given so as to defraud, 86, 87, 88 assignments to trustees for, 87, 88, 89, 433, 463: see Creditors' Deeds. cannot impeach honest marriage settlement, 90, 91 debtor may prefer one to another, when, 100, 104 arrangements with, all on equal footing, when, 104 bill of sale, when void against, 135 et seq.: see Bills of Sale. settlement void against one is assets for all settlor's, 515 consideration as against, 243 et seq.: see Consideration. ex post facto considerations, whether good against, 315: see Considera- tion Ex Post Facto. subsequent, 61 etseq. ; 518 et seq.: see Subsequent Creditor. judgment, 224 et seq.: see Judgment Creditor. execution, rights of, 153: see Execution. general, different from specific incumbrances, 163, 230, 232 plaintiff suing as purchaser and, 164, 517 burden of proof of debt in general on, 515, 516 (5690) INDEX. 605 [The paging refers to Ihe [*] pages.] CREDITOR— (continued) burden of proof of debt, when not on, 516 needs no judgment or order to bring action to avoid settlement, 527 needs no lien or charging order on property, 527 Court declares settlement fraudulent and void against, 523 taking benefit not estopped, 534 deed partly good against, 534, 535 WHO BANKS" AS, UNDEK 13 ELIZ. C. 5. who included under "and others," 163 person with claim on general assets, 1 (>'.'> not mortgagee unless for surplus of debt or by giving up securitj r , 163, 164 husband of a debtor to wife, when, 164, 165 wife, against husband's estate, 165, 167 on debt founded in maleficio, 165 ancestor's, 165, 166 surety, 166 under voluntary instrument, 167, 168 voluntary assignee of debt, 168 as against deed for value only creditor for value, 167, 169 Crown, by forfeiture, 169, 170 representatives of, 170, 464 assignee or trustee of insolvent or liquidating debtor or bankrupt, 170, 171 sheriff, 171 et seq. : see Sheriff. corporation, whether, 524, 525 company, 525 liquidator of unregistered company, whether, 525 right of, to avoid deed lost by acquiescence, 181, 182, 185 by in any wav upholding it, 181, 182 by notice, 183 184 by holding it out as valid to third parties, 184 legal, only barred by Statutes of Limitation, 44, 184 consideration as against, important if beed bona fide, 243 may set aside purchase by stranger for inadequacy, when, 247, 248 settlement of wife's property subject to equity to settlement good against husband's 296, 297, 300 subject to equity to settlement void against her ante-nuptial, 300 separation deed, when good against, 301 et seq. : see Separation Deed. CREDITORS' DEEDS— (see Assignment ; Conveyance ; Creditor) when made valid by way acted on, 107, 329 not bills of sale, 149 distinguished froni voluntary settlements, 433, 434, 436, 461 not communicated to creditors, revocable, 107, 433, 435, 436 do not create a trust for creditors, 433 trustees of, when purchasers, 229, 230 operate as a power to trustees, 433, 434 rights of creditors under, 434, 435 when irrevocable, 435 irrevocable as to some creditors only, 435 act of bankruptcy, 436 analogous case of revocable trusts, 436, 437 CRIMINATING— (see Penalty) interrogatories, whether, must be answered under statutes of Elizabeth, 539, 540 CROPS, growing, assignment of, when not and when registered as bill of sale, 1 49, 150 future, assignment of, under Act 1878 : 150, 161* under Act 1882 : 162 44 STAT. OF ELIZ. (5691) 606 INDEX. [The paging refers to the [*] page?."] CROSS BILL in foreclosure suit, 527, 528 CROWN within 27 Eliz. c. 4 : 204 creditor under 13 Eliz. c. 5 : 169 CURTESY, whether husband now has estate by, 295 whether husband can now bargain with, so as to be valuable consideration for post-nuptial settlement, 295 DAMAGES, voluntary conveyance to avoid recovery of, 70, 73, 74 of land not in existence recovered for, 401 action for, under voluntary covenant, 400 DEBT — (see Indebtedness) release of, within 13 Eliz. c. 5 : 24, 33 single, does not necessarily avoid voluntary conveyance, 39, 47, 49 nature of, owing by settlor, 57, 58 mortgage, how far immaterial, 57, 58 shortly to fall due, gift to defeat, 46, 73, 99, 100 assignment of whole property to secure past, 95 : see Act of Bankruptcy. past and future advances, 95, 97. 98 secured by bill of sale, 137 et seq., 143, 147 : see Bills of Sale. book, assignment of, 115, 161 voluntary assignee of, whether creditor, 168 existing, good consideration, 110, 252 not as good as cash paid, 110, 131, 252 security for, 252 covenant to pay, good consideration, 254 of indemnity against wife's, after separation, 301 : see Covenant ; Separation Deed. assignment of, under Judicature Act, 1873, when, 411, 412, 456, 457 voluntary assignment formerly, when supported, 454, 455 deed creates enforceable, 254 ancestor's, avoids what conveyances, 165, 166, 333 liability of married woman's separate property for, 25 et seq. : see Mar- ried Woman. of wife for, after separation, 301 et seq. created, though legal transfer not complete, when enforced, 398, 399 voluntary, paid pari passu with, for value when, 398, 399 agreement to pay creates legal, 398, 400, 401 second settlement of same fund creates no, 401 security for, got by undue influence, 489, 490, 504 declaration of trust of, 441 voluntary, avoids subsequent voluntary deed, when, 476 inquiry directed on proof of, when, 50, 516, 517 when not proved, 50, 51, 517 schedule of, when evidence against settlor, 515 when not evidence against settlees; 515 what is evidence of, at date of settlement, 515 must be alleged at date of settlement, 515, 517 liability to avoid settlement need not then be, 515 burden of proof of, when on creditor, and when not, 515, 516 proof of prior, subsequent creditor can impeach deed, when, 518 et seq. : see Subsequent Creditor. when not necessary to avoid settlement, 520, 521 judgment evidence of, 527 assignment to trustees to pay, 433 et seq. : sec Creditors' Deeds probate duty payable on voluntary, 459 (5692) INDEX. 607 [The paging refers to the [*] pages.] DEBTOR : see Creditor : Debt. DECLARATION OF TRUST— (see Trust ; Trustee) equivalent to transfer of legal estate, 405 how made as to personal property, 404, 444 as to real property, and by -whom, 404, 443 voluntary, good against whom, 404, 405, 438 nature of property subject to, immaterial, 438, 439, 450, 451 by donor, question of intention, 403, 404, 407, 417, 430, 439 test of, 404, 405, 415, 416, 439, 440 acts or words relied on must support no other view, 440, 444, 445 imperfect transfer not generally a, 400, 407, 415, 417-420, 430, 439 when a, 425 instances of valid, 440, 441, 442 of invalid, 442, 443 of legal interest not legally assignable, 453 »., 453-456 between husband and wife, 442 notice of, to cestui que trust of legal interest not necessary, 443 evidence to establish, 444, 445 burden of proof of, on whom, 445 notice of, to trustees of equitable interest, when necessary, 451-453 to cestuis que trust of equitable interest, not necessary, 453 acceptance of, by trustee not necessary, 451, 452, 453 DECREE — (see Judgment ; Order) for specific performance, 511-513 enforcing equitable mortgage, 513 n. DEED — (see Gift ; Settlement ; Voluntary Conveyance) property subject to power of appointment by. when within 13 Eliz. c. 5 : 31, 33 : see Appointment. necessary, when, 400 voluntary, debt created by, 398, 399 retainer of, 458, 471, 472, 474 for special purpose, and never acted on, 472 intended to be revocable, 474 destruction of, 459, 475 subsequent dispositions of property settled by, 475, 476 not affected by subsequent acts of settlor, 458; 459 not to take affect until marriage, 476, 477 operates from date of delivery, 458, 475 executed, not set aside if grantor changed his mind, 405 executed, but not understood, not upheld, 480, 481 not understood by grantor, set aside when, 481 : see Undue Influence. without power of revocation, valid when, 500, 501 : see Revocation, Power of. fraudulent against creditors or purchasers merely declared void by Court, 528 part good, part bad, 458, 534, 535 obtained for one purpose and used for another, 496 voidable only under statutes of Elizabeth, 317, 325, 463, 464 : see Voidable. voidable for undue influence, confirmation of, 505 et seq. void because voluntary, when, 460 : see Voluntary Conveyance. when cancelled, and when not, 529, 530 declared fraudulent under statutes of Elizabeth by Court of equity, 531, 532 delivery of, not a gift, 408 reconveyance, when necessary by. 530, 531 impeached by cross bill, 529, 530 (5693) 608 INDEX. ["The paging refers to the [*] pages. ] DEED— [continued) loss of, not presumed, when, 459 probate duty payable on. what, 459 : see Duty ; Probate. creditors' : see Creditors' Deeds. of separation, 301 ef seq. : see Separation Deed. supported by extrinsic evidence, 266 et seq. : see Evidence. several, forming one transaction, 268-270 gifts of chattels by, 408, 409 : see Gift. DEFECTS in deeds not supplied for volunteers, 391 formal, supplied only for wife or legitimate children, 393, 394, 395 substantial, not aided, 395 in execution of powers, 393 et seq. . see Power. DELAY— (see Acquiescence ; Laches) when a bar against creditors, 44, 181 et seq. against purchasers, 202 in cases of undue influence, 507, 508 merely evidence of acquiescence, when, 507-509 when no bar in cases of undue influence, 508, 509 DELIVERY— (see Deed) bond requires, 115 gifts by, 407, 408, 410 of bond when not enough, 410 not now always necessary for gift of chattel, 407 of voluntary deed, 458 to third person, 475 DELUSIONS, gift obtained by working upon a person's, when voidable, 495 DESCRIPTION— (see Bills of Sale) of grantor or attesting witnesses to bill of sale, 156 et seq. principle to test sufficiency of, 158 of witnesses, 156-159 of grantors, 156-159 of occupation, 159, 160 of residence, 159 of company, 159 refers to what time, 157 trifling errors in, 159 of place where goods are, not necessary, 160 DESERTION of husband, wife's equity, 300 DESTRUCTION— (see Deed) validity of deed not affected by, 459, 475 DEVISEE, purchaser from, of settlor not under 27 Eliz. c. 4 : 2"7 et r.eq. DISCLAIMER— (see Power ; Release) of power by married woman, whether now for value, 366 by trustee does not effect validity of trust, 451, 453 DISCOVERY cannot be resisted under statutes of Elizabeth, 540, 541 (5694) INDEX. G09 [The paging refers to the [•] pages. ] DISCRETION of Court as to wife's equity, 300 none to prevent gift, 461 as to costs, 544, 545 DISPOSITION of property by debtor, cause of, immaterial, 33, 45 mode of, immaterial, 33, 45 void for want of consideration, when, 460 : see Voluntary Conveyance. voluntary, of property : see Gifts, When Complete. DIVORCE, compromise of suits for, 306. 308 settlement on remarriage after, 341 marriage settlement not set aside on account of, 341 n. DOCTOR, gifts to, by patient, 488, 495 influence of, on patient, 484, 488 See Undue Influence. DONATIO MORTIS CAUSA, requisites of, 409 when not good, 409 when good, 409, 410 DONOR — (see Gift ; Undue Influence) intention of< test whether gift or trust, 407, 430, 445 : see Intention. how proved trustee for donee, 403, 415, 439, 440 : see Trustee. of legal and equitable interest, 402 et seq. : see Gift, When Complete. of equitable interest, 438 et seq. of legal interest not legally assignable, 453 et seq. confidential relation between, and donee, what. 483 et seq. terms of gift by, cannot be altered, 409, 461, 481, 500 burden of proof on, as to gift or voluntary settlement by, when, 445, 485, 486 gift or voluntary settlement by, when voidable by, 480, 488 et seq. : see Undue Influence. deed not understood by, not upheld against, 480, 481 voidable by, by whom set aside, 481, 502, 503 burden of proof whether on, to shew he understood his act, 485 voluntary settlement by, without power of revocation upheld against, when, 500, 501 not altered after death of, 425 not duty of, to give notice of trust, 452 voluntary equitable assignment complete as between, and donee, when, 451, 452 DOWER, giving up, when a consideration, 283, 363 DURESS, contracts under, 483 DUTY— (see Probate) probate payable on life interest or absolute power . of revocation in settle- ment of personalty, when, 502 on property taken as donatio mortis causa, 459 on gift inter vivos, when, 459 on property voluntarily transferred to self and another, when, 459 (5695) 610 INDEX. [The paging refers to the [*) pages.] ELEGIT, copyholds taken by, within 13 Eliz. c. 5, 18 possession by creditor under writ of, not a purchase, 227, 328 creditor by, may set aside deed, 527 ELIZABETH, difference between 13 Eliz. c. 5, and Bankruptcy Acts, 11, 12, 13 and 27 Eliz. c. 4 : 14 constructive fraud under statutes of, 15, 16 ENTRIES in books of firm a declaration of trust, 440 EQUITABLE — (see Gift ; Interest ; Mortgagee) mortgagee a purchaser under 27 Eliz. c. 4 ; 219 owner of estate a purchaser under 27 Eliz. c. 4 : 219 charge, how far a judgment is, 226, 228 interests in property within 27 Eliz. c. 5 : 17 interest in real property within 13 Eliz. c. 4 : 202, 203 in purchase in name of other person, 200, 201 gift of, and legal interest, 402 et seq. ; see Gift, When Complete. gift of, interest, 438 et seq. chose in action, gift of, 447 et seq. not affected by Judicature Act, 1873 : 411 EQUITY JURISDICTION, under 13 Eliz. c. 5, and 27 Eliz. c. 4, though remedy at law, when, 531, 532 EQUITY TO SETTLEMENT, to what property doctrine applied, 296 does not exist under Married Women's Property Act, 1882 : 286 foundation of doctrine, 296 contract founded on, for value, 296, 297 post-nuptial settlement subject to, good against creditors or purchasers, 297, 298 amount protected by, 298, 299, 300, 301 barred by any settlement, 299 right to, personal to wife, 299 extends to children, 299, 300 not enforced against wife's ante-nuptial creditors, 29, 300 if wife guilty of fraud, when, 300 principle on which Court acts as to, 300 ESTATE TAIL, resettlement of, when good against creditors, 24 a bargain for value, when, 263-265 . barred by voluntary recovery with void uses, 192 reverision after, within 27 Eliz. c. 4 : 205 ESTOPPEL — (see Paeol Agreement) doctrine of, applies when, under 27 Eliz. c. 4 : 202 of person making parol representation from denying, 383, 384 by recital, 383 not of creditor taking benefit under deed, 534 EVIDENCE of consideration dehors deed may support it, 219, 266, 267 sale to relation not,"of fraud, 56, 81, 83 subsequent indebtedness not, of fraud against subsequent creditors, 64 want of possession primal facie, of fraud, 114 transfer of personal property without possession formerly conclusive, of fraud, 116, 117 (5696) INDEX. 611 [The paging refers to the ["] pages. ] EVIDENCE— (continued) transfer of personal property without possession now only prima facie, of fraud, 116, 119-122 continuance in possession when not, of fraud, 122, 123 possession valuable as, of reality of transfer, 127 power of revocation, of fraud, 210 : sec Power ; Revocation', Power of. recitals in deed conclusive, againsfrparties to deed, 378 n. of sheriff's authority, what is, 171. 172 of fraud in executions in actions against sheriff, 17-1 in judgments, 174-177 against subsequent creditors, 75 in plaintiff's judgment, &c; 176 to guide sheriff, 178, 179 of consideration for bond apparently voluntary, 267 of debts, what is, 57, 515 what, for rectification of deed, 482 of money afterwards advanced not admissible, when, 512 what is, of declaration of trust, 444, 445 of complete gift, 403 : see Gift, When Complete EXECUTION, all property liable to, is within 13 Eliz. c. 5 : 17, 23 money, how seized in, 22 n. separate property of married woman, when liable to, 28, 29 voluntary deed to defeat, void, 70, 72, 99, 179 deed for value to defeat, 72, 99, 107 payment to defeat, 104 assignment for creditors to defeat particular creditor, 105, 103, 107 • judgments confessed to defeat, 106, 107 by executor, 108, 109 and seizure by sheriff, when good as against third parties, 173, 174 how far, avoids bills of sale, 153 creditor, successive bills of sale against, 154 bills of sale, when void against, 1 36, 140 of bill of sale, requisites of, 155 et seq. : see Bill op Sale. of power defective when relieved against, 394 et seq. . see Power. of deed of separation, when a consideration, 313 of contract by married woman or trustee in separation deed, 308, 309 fraudulent, seizure by sheriff after, 171 good between parties, .171 new sheriff after, 180 fraud in, how proveable, 174, 178 of complete trust enforced by Court, 405 : see Trust. EXECUTOR, fraudulent alienation good against, 70 de son tort, fraudulent grantee is, when, 69 power of, to defeat execution, 107 position of, how differs from that of living debtor, 108 judgment confessed by, 108, 109, 110 may prefer one creditor to another, when, 108, 110 voluntary conveyance by, when void, 166 covenant with, 400 of settlor cannot impeach settlement by him, 525 compelled to produce voluntary deed, when, 459 of donor may avoid deed for undue influence, 502 EXECUTORY GIFT : see Gift ; Voluntary Agreement. EX POST FACTO CONSIDERATION : see Consideration Ex Post Facto. (5697) 612 INDEX. [The paging refers to the [*] pages.] EXTENT OF MARRIAGE CONSIDERATION : see Consideration op Mar- RIAGE. FAILURE OF CONSIDERATION : see Consideration. FAMILY ARRANGEMENTS, ' when within 13 Eliz. c. 5 : 32, 34, 270 et seq. 27 Eliz. c. 4 : 271, 391 when not within 13 Eliz. c. 5 : 34, 82, 83 27 Eliz. c. 4 : 270, 271 et seq., 276, 391 between father and son upheld, when, 265 et seq., 491 FAMILY SETTLEMENTS, what are voluntary, 264, 266 limitations in favour of collaterals in, 345, 346, 363, 364 between father and son upheld, when, 265 etseq., 491 FATHER— (see Child ; Parent "Undue Influence) influence of, over child, when presumed, 484, 488, 489, 490 gift to, or voluntary settlement on, by child, when voidable, 488, 489 when upheld, 488-491 burden of proof as to gift to, or voluntary settlement on, when on, 488, 489 family arrangement with son upheld, when, 491 FELONY, sales or gifts by person about to commit, 71, 72, 169, 176. compromising, illegal consideration, 253, 311 FEME COVERT : see Married Woman. FICTITIOUS CONSIDERATION : see Consideration.. FIDUCIARY RELATION : see Confidential Relation. FIXTURES separately assigned personal chattels under Bills of Sale Act, 1878 : 149 assigned with land not personal chattels under Bills of Sale Act, 1878 : 149 assignment of after-acquired, 161 substituted for those in schedule under Bills of Sale Act, 1882 : 162 FORFEITURE, collusive, 34 in 13 Eliz. c. 5, extensive meaning of 71, 169 voluntary deed to defeat, 71, 169, 170 rights of Crown as creditor on, 169 for felonly abolished, 72 under penal clauses of statutes of Elizabeth, 537, 542 FORGED LEASE, sale of, 236 FORMAL POSSESSION : see Apparent Possession ; Possession. FRANCE, principles of 13 Eliz. c. 5, adopted in, 10 FRAUD — (see Badge of Fraud; Constructive Fraud) abhored by common law, 3 constant growth of, 4 against creditors under civil law, 7-9 suppression of, by both statutes of Elizabeth, 3, 4, 63, 169, 215 never presumed, 230, 234 h. (5698) INDEX. 613 [The paging refers to the [*J pages. 3 FRAUD— (continued) concurrent jurisdiction of Courts of equity and law as to, 531, 532 UNDER 13 ELIZ. C. 5, constructive, 5, 6, 15, 35 et seq., 463, 464 vitiates settlement, 36, 41 not when indebtedness slight, 39, 50 settlement by person not indebted, and not meaning a, good, 36, 45, 46, 50, 75 presumption of, in voluntary settlements, when, 38, 40 when not rebutted, 41 bona fide purchaser without notice of, protected. 45, 78 test of, all circumstances of settlor at time of settlement, 50 judged of at time of settlement, 13, 15, 35, 67 none, when, in voluntary settlement, 49, 50, 51 marks of, against subsequent creditors, 64, 66 et seq. : see Subsequent Creditor. power of revocation mark of, 76 of vendor and purchaser avoids deed for value, 78, 85 of vendor alone avoids voluntary deed, 45 none in sale to relation, 81, 81 n. : see Relation. marriage settlement when set aside for, 89-91 of husband or wife only does not avoid marriage settlement, 91 badges of, in conveyance for value, 93 et seq. : see Badge of Fraud. continuance in possession when mark of, 113 et seq., 135: see Possession. evidence as to, in judgments and executions, 174 et seq. . see Evidence. UNDER 27 ELIZ. C. 4, presumed in first conveyance from fact of second, 6, 187, 188 constructive, 3, 5, 15, 193 et seq., 324, 465 conveyance for value void if actual, 197 when void for constructive, 197-199 bona fide purchaser for value without notice of, protected, 188, 197, 325 shewn at time of sale. 14, 15, 188 purchase in name of third person, whether a, 199-201 penalty under statutes of Elizabeth only in cases of actual, 538, 539 VOLUNTARY SETTLEMENT set aside for, 460, 462, 480: see Undue Influence. cannot be avoided by setting up fraud of settlor, 470 between parties avoids, 480 rules as to undue influence apply to, 498 must be alleged, 533 WILL set aside for, 498 rules as to undue influence apply to, 498 FRAUDS, STATUTE OF: see Statute of Frauds. FRAUDULENT DEED act of bankruptcy, when, 11, 12 void against sheriff, when, 171 et seq. when cancelled, 529, 530 under 13 ELIZ. c. 5, good between parties and parties claiming under settlor, 316, 317, 325, 463, 464 void only against creditors, 68, 317, 325, 464, 528 voidable, not void, 317, 325 good by ex post facto consideration, 315-318, 323 et seq. UNDER 27 ELIZ. c. 4, good between parties, and all but purchasers, 316, 317, 325, 465 void only against purchasers, 208, 209, 317, 325, 465, 529 voidable, not void, 317, 325 (5699) 614 INDEX. [The paging refers to the [*] pages.] FRAUDULENT DEED— (continued) good by ex post facto consideration, 315 et seq. UNDER BILLS OF SALE ACTS, under Act 1878 as against specified persons, 136, 137, 465 1882 as against all world, 140, 465 FRAUDULENT PREFERENCE— (see Act of Bankruptcy; Priority) void as such, and an act of bankruptcy, 12, 100 object of doctrine, 101 when it arose under Bankruptcy Act, 1869: 101, 102 declared an act of bankruptcy by Act, 1883: 102 when it arises under Bankruptcy Act, 1883: 102, 103 to what cases, applies, 103 applies as between what persons, 103, 104 FRAUS CONTRA ALIOS IERITA, 470 FREEHOLDS, gifts of, 412: see Gift, FUTURE- ACQUIRED PROPERTY: see After-acquired Property; Bills of Sale. FUTURE CREDITORS: see Subsequent Creditor. GAME QUALIFICATION, conveyance for, when binding on grantor, 471, 472 GAVELKIND LAND, dower in, 283 n. GENERAL words, assignees by, not purchasers, 231, 233 charge of annuity not a sale, 235 GENERALITY, a mark of fraud, 94 et seq. in voluntary deeds, 66 in deeds for value, 94, 97. 98 of conveyance an act of bankruptcy, 11, 12, 94-96 GIFT of annuity. 22 between relations, 56, 57: see Relation. of chattels, 407-409 of choses in action, 410-413, 447 et seq. : see Choses in Action. of equitable interests, 438 et seq. : see Equitable. executory: see Voluntary Agreement. returned, 408 conditional, 409 of stocks and shares, 413 mortis causa, 409: see Donatio Mortis Causa. oi property by particeps eriminis, 769 of mere expectancy, 447 et seq., 451 incomplete, not aided by Court, 390, 391, 393, 402, 403: see Incomplete Gift. incomplete, passes no property, 402 must be perfect, 397, 402, 403, 414 formal defect as to, aided by Court, when, 394-396 fraud on third parties in, 425 on creditors: see Creditor. (5700) INDEX 615 [The pnglng refers to the [«] pages.] GIFT— (continued) fraud on purchasers : see Purchaser. against donor, 481 et seq. between husband and wife, 420-425; see Husband; Wife. incomplete, defeated by subsequent gift 476 of land, 412 of leaseholds, 412 of legal interests not legally assignable, 45:? et seq. between persons in confidential relation, 48:5 et seq. . see Confidential Relation. of reversionary interests, 448, 450, 451 revocable, when, 431 of right to set voidable deed aside, 412 vests property in donee subject to his dissent, 400 settlor not aided to defeat his, 476, 511, 512 nature of and interest in, immaterial, 450, 451 not altered after death of donor, 425 procured by fraud set aside, 460, 462 GIFT, WHEN COMPLETE, inter vivos by transfer to donees, 403, 406, 415 to trustees for donees, 403 by declaring self trustee for donees, 403, 404, 405, 415, 416, 471 vests property in donee, even if ignorant of it, 406 subject to his dissent, 406 Court will not alter intended mode of, for volunteer, 406, 407, 414 415 430, 439, 445 imperfect, not therefore upheld as trust by donor, 407, 415, 417-420, 439 when upheld as trust, 418, 419, 425 resulting trust for donor, whether of any part of, 430, 431 transferee, whether takes beneficially or on trust, 431-433 test of intention of donor at time, 404, 430: see Intention. enforced by Court, against whom, 403, 406, 415, 439, 445, 460, 403 generally irrevocable, 405, 433, 436 revocable if assignment to pay debts, 433 et seq. : see Creditors' Deeds. if merely for convenience of donor, 436, 437 classification of cases of, 405, 406 as to part only of property, 457, 458, 535 as to some only of limitations, 458, 534 want of consideration immaterial, 460 unimpeachable, unless for fraud or undue influence, 460, 464, 480 OF LEGAL AND EQUITABLE INTEREST by transfer to donees, 402, 406 by declaration of trust by donor, 403, 404, 415, 416, 417 of chattels by parol with or without delivery, 407, 408, 410 by deed, 408 by donatio mortis causa, 409, 410 of choses in action, 410. 411, 412 of release of power, 412 of copyright, 412 of right to set aside voidable deed, 412 to charity, 412 of leaseholds, freeholds, copyholds, 412 of stock, shares, bonds, debentures, 413, 414 OF LEGAL AND EQUITABLE INTEREST — (continued) from husband to wife, whether formerly regarded as trust, 420-424 when within Conveyancing Act, 1881: 422, 424 when within Married Woman's Property Act, 1882: 422, 424, 425 (5701) 616 INDEX. [The paging refers to the [*] pages.] GIFT, WHEN COMPLETE— (continued) from husband to wife, now tested as if between strangers, 424, 425 OF EQUITABLE INTEREST, AND LEGAL INTEREST IN TRUSTEES by transfer of equitable interest to donees, and (a) promising transfer of legal estate to donees, 425-430, or, (b) vesting legal estate in new trustees for donees, 425-430 how different from case of equitable and legal interest in donor, 430 OF EQUITABLE INTEREST ALONE, (a) when donor is both legal and equitable owner — by declaration of trust, 438-445: see Declaration of Trust. declaration of trust, when sufficient, 439-441 when not sufficient, 440-442 trusts of land, tenements, and hereditaments, 443 of personalty, 444 nature of property immaterial, 438, 439 (6) when donor is merely equitable owner — by assignment direct to donees, 445 by declaring a trust in favour of donees, 445, 446, trustees for donees may be existing trustees, 445, 446 new trustees, 445, 446, 447, assignment to new trustees formerly inoperative, 447, 448 now valid in equity, 448-450 test now, is transfer as perfect at time as could be, 451 nature of interest and of property immaterial, 450, 451 of legal interest not legally assignable, by declaring trust making self trustee for donee, 453 another trustee for donee, 453 test of, 453-456 what legal interests now legally assignable, 453 n. , 456, 457 GOODS AND CHATTELS, . what are, 17, 17 »., 22, 23, 135 GRANDCHILDREN, whether within consideration of marriage, 342, 358 of former marriage, whether within consideration, 343, 346, .'!47, 352 defective execution of power not aided for, 394 GUARDIAN — (see Undue Influence; Ward) confidential relation of, to ward, when, 484, 486-488 gift to, by ward, or voluntary settlement by on, when voidable, 487, 493, 494 when relation of, and ward over gift upheld, 494 burden of proof on when, 484, 485, 487, 488 person acting as, liabilities of, 494 HEIR, purchaser from, 237, 240, 241 settlement of property descended to, 165. 166, 333 how liable to ancestor's debts, 165, 166, 333 may enforce ancestor's contract, under 27 Eliz., c. 4: 241 purchaser from, not within 27 Eliz. c. 4: 237 et seq. may set aside deed for undue influence, 502 HERIOT, gift to defeat, 543 HOLLAND, principles of 13 Eliz. c. 5, adopted in, 10 HOSPITAL— (see Charity) conveyance to, whether within 27 Eliz. c. 4, 206 (5702) INDEX. 617 [The paging refers to the C*3 pages. ] HUSBAXD — (see Consideration of Marriage; Wife) purchase by, iu name of wife, within 13 Eliz. c. 5: 20, 21 whether within 27 Eliz. c. 4: 200, 202 liability of, for wife's ante-nuptial debts, 25 et seq. rights of, over wife's property, formerly, 25, 284, 296, 334, 3(37 none now, 29,223, 295 marriage settlement by fraud of, alone, not formerly avoided, 90-92 whether now avoided, 90, 91 a purchaser by marriage settlement, 222, 342 of his life interest, 341 not now a purchaser by jus mariti, 223 life interest to, in own property to cease on bankruptcy, void, 338 in wife's property, valid, 338, 339 to wife in husband's property, valid, 339 all 1 imitations to, in marriage settlement valid, 341, 342 defective execution of power not supplied for, 395 contracts by, with wife formerly none at law, 483 may contract with wife as to separate property, 281, 282, 283: see Con- tract. undue influence of, over wife, 483, 484, 491: see Undue Influence. burden of proof on,, when gift made by wife, when, 488, 492 gift to, or voluntary settlement on, by wife, when voidable by her, 491, 492 gift, or voluntary settlement on, by woman on intended, 492 on supposed, 492 transfer from, to wife, whether formerly a trust, 420-422 whether an imperfect gift, 422-424 under Conveyancing Act, 1881: 424 under Married Women's Property Act, 1882: 424, 425 trustee for wife, 442 declaration of trust by, for wife, 441, 444 bargain by, with wife, supported post-nuptial settlement, when, 233 et seq mere concurrence of, in post-nuptial settlement, whether formerly for value, 294 effect of equity to settlement on rights of, over wife's property, 296-300: see Equity to Settlement. contract by wife or trustees to indemnify on separation, 301 et seq. ; see Separation Deed. when restrained after divorce, selling real estate, settled, 572 IGNORANCE of donor, gift void for, 480, 481 ILLEGAL CONSIDERATIONS, compounding felony, 311 future separation, 312 continuing cohabitation, 312 n. deeds void for, 468 ILLEGITIMATE CHILDREN, settlement on, by widow on marriage, 343, 347-349, 351 , 352 by widower, 343, 352, 353 trust for future, void, 468 IMMORALITY, deeds void, for, 468, 469 IMPRISONMENT, for offences under the statutes of Elizabeth, 537, 543 .'5703) 618 INDEX. [The paging refers to the[*] pages.] IMPROVEMENTS in mode of reaching property after settlement of it, 23 reimbursement for permanent, when, 514 IMPROVIDENCE, deed void for, 496 INADEQUACY of consideration not necessarily a badge of fraud in family arrangement, 34, 56, 57, 391 of price does not of itself avoid sale, 81, 247, 248, 249 of consideration, when avoids deeds, 244-246 as between relations, 83, 246, 247 in sales of reversion, 249 INCAPACITY, gift by person under, 483 < INCOMPLETE GIFT— (see Gift; Gift, When Complete) not aided by Court, 390, 393, 397, 414, 439, 451, 453, 454 not generally supported as a declaration of trust, 406, 415, 430 acted on may be, 418, 419, 425 INCUMBRANCER— (see Mortgagee) specific, how differs from general creditor, 163, 164, 240 when postponed unner 27 Eliz, c. 4, 197, 199 purchaser protanto, when, 219 whether a creditor under 13 Eliz. c. 5: 57, 58, 163, 164 INDEBTED — (see Creditor; Indebtedness; Voluntary Conveyance) voluntary conveyance by person, when void, 6, 14, 35 et seq., 53,63, 75 when valid, 49, 50, 51 by person about to become, void, 65, 73, 75 law as to, what is, in America, 50 in Upper Canada, 50 INDEBTEDNESS — (see Fraud; Indebted; Insolvency; Voluntary Con- veyance) what is, 35, 37, 38 evidence of, 515 et seq: see Evidence. cannot mean merely owing some debts, 38, 49, 47 rule laid down as to, 38, 39, 49, 50 insolvency not meant, 39 in what sense it may be, 41, 42 so great as to induce presumption of fraudulent intention, 38, 40, 520, 521 whether settlor's, known to him or not, immaterial if indebted, 41 American doctrine on, 53, 54 where there is express fraud immaterial, 50, 68, 75 conveying large part of property does not necessarily prove, 49, 50 what sufficient foundation for inquiry as to, 516-518 to the extent of insolvency avoids settlement, 39, 49 subsequent, not evidence of fraudulent intent against subsequent credit- ors, 64 creditor can impeach settlement on ground of settlor's, when, 518 et seq. under 27 Eliz. c. 4, immaterial, 15, 16, 193 INDEMNITY — (see Consideration; Covenant; Separation Deed) covenant of, against wife's debts, good when by third party, 301 et seq. by her alone, 303 good consideration, 221, 254 assignment by trader by way of, when act of bankruptcy, 95 5704) INDEX. 619 [The paging refers to the [*] pages. ] INDEPENDENT ADVICE— (see Undue Influence) want of, a mark of undue influence, 496 costs where none, 551, 552: see Costs. INDICTMENT, compromises of, when valid, 310, 311 under 13 Eliz. c. 5: 543 INFANT— (.w Child) contracts of, 381, 384, 4S3 liable to penalties under 27 Eliz. c. 4: 542 INFLUENCE, UNDUE: see Undue Influence. INJUNCTION to restrain trustees dealing with capital fraudulently settled, 92 covenant to live apart enforced by, 314 exercise of power of appointment by debtor restrained by, 531 INQUIRY as to settlor's circumstances at time of settlement, when directed, 50, 51, 516, 517 when not directed, 50, 516, 517 as to consideration needless if fraudulent intent proved, 78, 83 when debts not properly in evidence, 516 when settlement made by trader, 50, 51 at volunteer's risk, 517 when bill filed in ignorance of deed, 518 as to consideration, 266, 518 made in administration action as to settlement, 526 INSANE PERSON— (see Lunatic) contracts of, 483 INSANITY, degrees of, 483 n. INSOLVENCY— (see Indebtedness) of vendor, 81 of settlor, what is, in regard to voluntary deed, 37, 39, 41, 42 under Bankruptcy Act, 42, 43 subsequent, will not avoid deed, when, 53 of husband, marriage settlement when set aside, 89*-91 assignment of whole property admission of, under bankruptcy law, 94 as distinguished from bankruptcy, 104 of husband, wife's equity to settlement, 300 schedule of debts in evidence against debtor only, 515 of settlor after action commenced no bar, 524 INSTRUMENTS: see Bills of Sale. INSURANCE: see Life Insubance; Policy. INTENTION to defeat creditors to be shewn at time of conveyance, 15, 35, 50, 67 fraudulent, of settlor, when interred, 38, 41 presumed from all circumstances of settlor, whether known to him cr not, 40, 41 actual proof of, to defeat, defraud, or delay creditors, when not necessary, 40, 41 to defraud, when plain, avoids settlement, 41 future creditors, 13, 64, 75 by trader, how shewn, 65, 66, 75 (5705) 620 INDEX. [The paging refers to the [•} pages.]. INTENTION— (continued) to defraud, future creditors, must be express, 75 of donor in voluntary conveyance alone material, 45, 78 of vendor and purchaser in conveyance for value, 78, 85 actual and express, to defraud avoids conveyance for value, 84, 85 fraudulent, overrides any, valuable consideration, 89 of parties in assignment to secure debt and advances, 95 to defeat purchasers, 187, 188, 234, 238: see Purchaser. of donee of power when aided by Court, 395, 396 voluntary agreement not modified to suit former, 391, 481 gifts not aided contrary to the, 406, 414, 415, 423, 430, 457 onus to prove, of donee on appointee, 396 to declare a trust, shewn,. how, 404, 415, 416, 417, 430 to make self a trustee, 403, 404, 417, 439, 440 continuing, of settlor to give, what is, 432, 433 to effect illegal object no bar to assignor recovering property, when, 471, 472 of settlor not expressed in deed not altered against him, 481 trusts declared contrary to, altered after death of settlor, 482 settlement only rectified to accord with, of all parties, 482 INTERPLEADER ACT, 179 INTERROGATORIES, criminating, whether answer to, can be enforced, 539-541 IRELAND, statutes of Elizabeth apply in, 2 resettlement by tenant in tail, not within 13 Eliz. c. 5, in, 24 principle of Edwards v. Harben, only applied to its special facts in, 121 Bills of Sale Act in, 136 n. bill of sale of personal chattels partly in England and in, only needs regis- tration- in, 149 judgment relates back against volunteers in, 229 assignment of leaseholds not always for value in, 258, 259 family settlement upheld as bargain in, 263 consideration between husband and wife a question of bargain in, 292, 293, 294 settlement supported by equity to settlement upheld against subsequent purchaser in, 297, 298 marriage on faith of settlement, when consideration for, in, 320, 321 limitation to children of future marriage between two valid limitations upheld in, 355. 356 purchaser from grantee, whether prior to subsequent from grantor in, 328 failure of consideration ex post facto does not make deed voluntary in, 268, 329, 330 consideration not closely scrutinized in, 367 assignment from husband to wife of policy in, 423 absence of power of revocation in voluntary deed, how regarded in, 500 contribution whether enforced against voluntary grantee in, 535, 536 assignment of debts or other legal choses in action in, 457 ISLE OF MAN, 13 Eliz. c. 5, extends to 1 n., 10 ISSUE — (see Consideration of Marriage) purchasers under marriage settlement, 336, 341, 342, 358 of former marriage, whether within marriage consideration, 343, 346 et seq. of future marriage, 344, 353 et seq. JOINT POSSESSION— (see Possession) of bankrupt and others not within reputed ownership, 129 (5706) INDEX. 621 [The paging refers to the ["] pages. ] JOINT POSSESSION— (continued) with vendor or settlor, 129, 130, 131 transfer of stock into, when a gift, 432, 433 JUDGMENT — (see Creditor ; Judgment Creditor) for debt due, or fraudulent and execution, within 13 Eliz. c. 5 : 33 confers what rights, 225, 226, 228 may not be tacked to mortgage, 225 t how far a charge on land, 226 contract for value defeats subsequent, 227, 228 possession of creditor under elegit, 228, 229 relates back against volunteers, 229 purchaser under, not a purchaser in America, 229 confessed to defeat execution, 106, 107 by executor to defeat execution, 108, 109 must be for value, when, 106, 107 must be for what amount, 106, 107, 109 up to, executor can prefer creditor, 108, 110 consideration for, 253 creditor need not now have, to bring action, 527 may attend inquiries under, to impeach settlement, 526 JUDGMENT ACT, enlarged scope of 13 Eliz. c. 5 : 18-22 JUDGMENT CREDITOR— (see Creditor ; Judgment) effect of 1 & 2 Vict. c. 113, on 226, 227 of 27 & 28 Vict. c. 112, on, 227 not purchaser within 27 Eliz. c. 4 : 224-229 in America, 229 in Upper Canada, 224 n. right of, to priority of payment, when, 526 not affected by Judicature Act, 1875 : 526 . JURISDICTION, CONCURRENT, of 13 Eliz. c. 5, and Bankruptcy Acts, 10 of law and equity on statutes of Elizabeth, 531, 532 JURY, attempt to screen more property than necessary, question for, 118 summoned by sheriff, 179 case.when sent to be tried by, 532 fraud as shown by keeping possession is question for, 121, 126 KING, 27 Eliz. c. 4, extends to, 204, 205 forfeiture to, 169 : see Crown ; Forfeiture ; Penalty. LACHES— (see Acqxjiesence ; Delay) effect of, under 33 Eliz. u. 5 : 184 under 27 Eliz. c. 4 : 202 as to undue influence, or fraud, 507-509 coverture an excuse for, when, 509 LAND — (see Property ; Real Property) possession of, after sale, when fraudulent, 115, 116 after mortgage, not, 114 all interests in, within 13 Eliz. c. 5 : 1, 2, 17, 18 27 Eliz. c. 4 : 1, 2, 7, 13, 202, 203 assigned with fixtures not within Bills of Sale Acts, 149 gift of, 412 : see Gift. 45 stat. of eliz. (5707) 622 INDEX. [The paging refers to the [*] pages.] LANDLORD, distress,and sale by, 133 collusion of, with tenant, 470 LAPSE OF TIME— (see Delay ; Laches ; Limitation) effect of. under 13 Eliz. c. 5: 44, 184 under 27 Eliz. c. 4 : 202 bar to remedy for undue influence, when, and when not, 507-509 LAW, assignment of legal interests not assignable at, 408, 453 et seq. : see Gift. deed implies consideration at, 400 jurisdiction of equity and, as to statutes of Elizabeth, 531, 532 creditor when left to remedy at, 532 : see Legal. LEASE, assignee of, a purchaser, 221 surety with, as security and indemnity, a purchaser, 231 gift of agreement for, 428 from agent, 504 LEASEHOLD — (see Covenant ; Lessee) within 13 Eliz. c. 5 : 24, 25 assignment of, for value under 27 Eliz. c. 4, in England, 256-258 when for value, under 27 Eliz. c. 4, in Ireland, 258, 259 and conveyance of freeholds, whether voluntary under 27 Eliz. c. 4 : 259 doctrine of Price v. Jenkins as to assignment of, only applies to 27 Eliz. i -. 4 : 259, 260 specific performance of voluntary contract to sell, 513 settlement of, impeached without delivery of, in execution, 527 LEGAL assignments of interests not assignable at law, 406, 453 et seq. ; see Gift, When Complete. if voluntary, must be complete, 430, 457 of estate, donor having control of, 405, 406, 425 et seq., 430 obligation a good consideration, 249 liability, when enforced without legal transfer, 398, 399 LESSEE— (see Covenant ; Leasehold) a purchaser within 27 Eliz. o. 4, when, 220 covenant by, supports assignment ot leaseholds under 27 Eliz. c. 4 : 254, 256-258 in Ireland, when, 258, 259 LETTERS constituting a declaration of trust, 441 LIABILITIES of settlor, when and how to be estimated, 57 on mortgage, 57, 58 when very fluctuating, 58 to his firm, 58 for contingent debt, 58, 73 as guarantor, 58, 59, 73 as surety, 59 for damages in action, when, 59, 71, 74, 75 incurred for another, good consideration, 254 at time of settlement to avoid it need not be debts, 515 LIEN, creditor can sue under 13 Eliz. c. 5, without, 526, 527 actions as to, when in Chancery Division, 533 (5708) INDEX. 623 [The paging refers to the [*] pages. 3 LIFE INSURANCE— (see Policy) withiu 13 Eliz. c. 5 : 20 securities for money, 20, 55 , to be reckoned as assets, 55 assignments of, 411, 453 n. LIMITATION, Statutes of, bar creditors' legal rights under 13 Eliz. c. 5 : 44, 184 in voluntary deed, how construed, 458, 461 LIMITATIONS IN MARRIAGE SETTLEMENT to husband, wife, and issue, 336, 337, 341, 342, 346 to children or other issue of widow of former marriage, 343, 346, 347, 349-351 to illegitimate children of widow, 343, 347-349 to children or other issue of widower of former marriage, 352, 353 to illegitimate children of widower, 352, 353 to children or other issue of husband or wife by a future marriage, 343, 358-356 to children of future marriage supported between two valid limitations, 354, 355 all now a question of bargain, 352, 353, 355-357 bargain for, when inferred by law, 358 presumption of bargain for, when made, 358-360 when not made, 360, 361 bargain for, must be proved by whom, 358 remoteness of, formerly ground to support, 361, 362 in favour of collateral, when bargain by stranger, 362, 363 in family settlements, 345, 346, 363, 364 what voidable for undue influence, 502 some good, some bad, 534, 535 LIQUIDATOR, of unregistered company, whether creditor, 525 LIS PENDENS, profits received during, whether decreed back, 529 registration of, whether protection to volunteers, 531 LITIGATED ESTATE, release of claim to, a purchase, 220 LOAN, a valuable consideration, 132, 250 consideration for settlement by third person, 250, 365 LOSS, a good consideration, 256 LUNATIC, committee of, not a creditor, 525 deed by, not set aside, when, 483 n. MAINTENANCE, trust for, in voluntary deed, 479 MALEFICIO, debts founded in, distinction as to, 165 MARRIAGE, frauduledt, 89, 90, 332 settlements, when avoided, 89-91 : see MaeeiagE Settlement. mutual covenant on, as to future property upheld, 92 property got by fraud settled on, 92, 332, 333 husband now acquires no property of wife, by, 223, 295 (5709) 624 INDEX. [The paging refers to the [*] pages.] MARRIAGE— (continued) contracts enforceable by whom, 391, 392 on faith of voluntary deed, 317-320 : see Consideration Ex Post Facto. of representations made, 321, 386 : see Representation. second, settlement on, 343 : see Consideration of Marriage. canon law as to, 331 nature of contract of, 331, 335-337 civil law, with respect to, 332 effect of, on present property of wife, 334 contract a question of bargain, 357 : see Limitations in Marriage Set- tlement. construction of contract a question of intention, 357 agreements before and settlements after, 365 : see Post-nuptial Settle- ment. not part performance of parol ante-nuptial agreement, 372 settlements on children by future, when binding, 343, 353 : see Consid- eration of Marriage. deeds to take effect on, when binding, 476, 477 settlement in consideration of particular, 334, 477, 478 MARRIAGE CONSIDERATION r see Consideration of Marriage. MARRIAGE SETTLEMENT— (see Consideration of Marriage) is on valuable consideration, 89, 332, 333, 340 by man indebted, if honest, upheld, 90, 91 or now by woman, 91 whether upheld if one party innocent, 91, 92 not a bill of sale, 148 by heir or devisee not liable to ancestor's debts, 333, 334 set aside if marriage a fraud on creditors, 89, 332 not set aside on account of divorce, 341 »., 342 n. when altered by Probate Division, 342 n. set aside only when marriage itself a fraud, 90, 332 third persons interested in, 336, 337 of property got by fraud, 92 parties bound by, 336, 337 issue purchasers under, 336 on husband for life or until bankruptcy, 338, 339 on wife not to be defeasible on her bankruptcy, 338 on husband or wife of other's property, 338, 339 on wife for purposes of separate trade, &c, 339, 340 second, on remarriage after divorce, 341 what limitations in, protected, 341, 342, 343 : see Limitations in Mar- riage Settlement. limitations in, how upheld formerly, 342 et seq. now upheld in. if a bargain, 387 et seq. in favour of collaterals upheld when made by a stranger, 362, 363 ulterior limitations in, when voluntary, 343 supported by other considerations, 343, 345, 346 enforceable by whom, 391, 392, 535 how affected by undue influence, 502 when merely voluntary, 477 MARRIED WOMAN — (see Contract ; Settlement ; "Wife) separate property of, what is, 28, 29, 295 property of, how far liable for ante-nuptial debts before Act 1870 : 25, 26, 29 under Act 1870 : 27 1874 : 28 1882 : 28, 29, 30 (5710) INDEX. 625 [The paging refers to the ["] pages.] MAERIED WOMAN— (continued) settlement of, within 13 Eliz. c. 5 : 29, 30, 31 execution against what separate property, 28, 30, 31 bargain with husband supported settlement of, formerly, 283 et seq. , 295, 296 whether now supports settlement of, 295, 296 concurrence of, when valuable consideration, 28-1, 286, 293 contract of, with husband or stranger, 281, 283, 284 et seq., 483, 484 : see Contract. contracts of, bind her then separate property, 281, 282, 283, 293, 483 her after-acquired property, 309 do not bind property subject to restraint on anticipation, 282 cannot contract if then no separate property, 282, 283, 305, 309 contract of, founded' on equity to settlement for good consideratson, 296 equity to settlement formerly, when, 296 etseq. : see Equity to Settle- me.vt. has no equity tosettlement now, when, 296 separation deed by, when for value, 301 et seq. : see Separation Deed. covenant by, in separation deed, 303, 304, 305 : see COVENANT, settlement by, on marriage of stranger, 342 consent of, when not irrevocable, declaration of trust, 442 conveyance to, by husband, 420-425 : see Gift, "When Complete. detective execution of power by, when supplied, 396, 397 MARRIED WOMEN'S PROPERTY ACTS : me Table of Statutes Cited. MARSHALLING securities in favour of volunteers under 27 Eliz. c. 4 : 209, 108, 535 not against volunteers, 535 not as between two volunteers, 535 "MEDIUM" of conversing with deceased persons, 495 : see Undue Influence MEMORANDUM, declarations of trust by T , 441 MERITORIOUS CONSIDERATION, settlements on, on same footing as voluntary. 56, 76, 77, 245, 246 not inconsistent with valuable consideration, 267 deeds founded on, voluntary under statutes of Elizabeth, 245, 246 family arrangements on, supported if also some value, 246, 247, 270, 271 etseq., 279, 280,. 391 agreement on, not enforced, 390 MINERALS, within 27 Eliz. c. 4 : 203 MINING AGREEMENT, parties to, purchasers, 220 MINISTER OF RELIGION, 495 : see Undue Influence. MISCONDUCT, HUSBAND'S, 306, 307 MISDEMEANOUR, compromise of, when good, 253 MISTAKE, when set aside for, as to law, 275, 473 voluntary settlement when rectified for, 481 what must be, for rectification, 482 deed voidable for, how confirmed, 505, 507 (5711) 626 INDEX. [The paging refers to the [*] pages.] MISTRESS, deed on separation from, voluntary, 312, 313 MIXING FUNDS, a declaration of trust by, 441 MONEY was not, but is now, within 13 Eliz. c. 5 : 18, 20, 22 formerly only within 13 Eliz. c. 5, on death or bankruptcy of settlor, 19, 22 how seizahle, 22 n. gift of, when complete, 410 : see Gift. MORAL OBLIGATION useless against creditors or purchasers, 245, 249, 276 of providing for family, 368, 397 MORTGAGE— (sec Mortgagee) actions as to, when assigned to Chancery Division, 532 volunteer may redeem, 467 land subject to, settled, proceeds of sale subject to settlement, 467 UNDER 13 ELIZ. (J. 5, how far a debt, 57, 58 to defeat damages, 71, 72 possession not usually given under, 114, 115, 123, 125 UNDER 27 ELIZ. O. 4, when constructively fraudulent against subsequent purchaser, 197-199 marshalling of, in favour of volunteer, 209 voluntary settlement only displaced by, 208, 209, 213, 465, 466 power to, to any extent, a power of revocation, 214 money must be really advanced, 218 specific to creditor makes purchaser, 231 fraudulently represented as sale, rights of volunteers against, 468 UNDER BILLS OP SALE ACT — (see BILLS OF SALE) of fixtures aud an interest in land or buildings not, 149 followed by transfer and delivery, not, 150 within reputed ownership clause, when, 152, 153 when only within Bills of Sale Act, 1882 : 137, 138 whether void because of attornment clause, 140, 131 of after-acquired property, 160-J.62 MORTGAGEE— (sec Mortgage) UNDER 13 ELIZ. C. 5, when a creditor, 153, 164 UNDER 27 ELIZ. C. 4, cannot consolidate as against voluntary settlement, 209 a purchaser, 208, 219, 231 equitable, a purchaser, 219 voluntary settlement only void against, so far as necessary, 208, 209 213 465, 466 marshalling in favour of volunteers against, 209, 468 to secure antecedent debt, when pastponed, 197, 198 in favour of whom postponed, 198, 199 secret, postponed to subsequent bona fide, 198 general, to secure antecedent debt, purchaser, 232 MOTHER — (see Child ; Undue Influence) influence or, over child, when presumed, 488 gift fo, or voluntary settlement on, by child, when voidable, 491 NATURAL LOVE AND AFFECTION see Meritorious Consideration. (5712) INDEX. 627 [The paging refers to the r"!l pages. ] NEW YORK. statutes of Elizabeth re-enacted in, 2 law to notice in. 196 NEW ZELAND, statutes of Elizabeth apply in, 3 NOMINAL CONSIDERATION— (see CONSIDERATION) under civil law, 7, 8 expressed, real, may be proved, 266, 267 NOTICE book debts assignable by, 115 bona fide purchaser without, protected, 78 to solicitor, whether enough, 78 .«. of trustees not notice to them, 78 of trust to trustees only necessary as against third party, 451-453 to cestuis que trust, 443, 453 deed to creditors, 329, 433, 435 of undue influence — third persons, 504, 505 duty of donee or his trustees to give, 452 UNDER 13 ELIZ. C. 5, bona fide purchaser for value without, protected, 2, 45, 78 volunteers not so protected, 45, 78 in conveyance for value, vendor and purchaser must have, to avoid deed 78, 81 must be of fraud itself, 79 of fraud in marriage settlements, 89-91 act to uphold voluntary deed by ex post facto consideration must be with- out 315 UNDER 27 ELIZ. C. 4, bona fide purchaser for value without, protected, 2, 188, 197 to subsequent purchaser of voluntary deed immaterial, 193, 196 doctrine ot artificial, 193, 194 purchase with, whether a fraud on volunteers, 194, 395 to subsequent purchaser of deed on meritorious consideration immaterial, 195, 196 when subsequent purchaser has collateral security, 196 American law as to, 196 of voluntary conveyance by vendor's ancestor or devisor immaterial to purchaser, 241 under Statute of Charitable Uses, 206 NOTORIETY lessens presumption of fraud where no possossion given, 126, 133, 134 NUDUM PACTUM — (see Voluntary Agreement) not binding, 389 et seq., 404, 405 NUNS, gift by to their convents, 494, 495 OBLIGATION, legal a valuable consideration, 249, 276, 297, 298 moral, not, 245 of providing for family, 368 voluntary legal, enforced, and property not transferred, 398, 399 OCCUPATION UNDER bills of sale acts, what, of premises to prevent apparent possession, 151 is sufficient description of, 159,. 160 onus of proving inaccuracy of, 158 (5713) 628 INDEX. [The paging refers to the [*] pages.] OMISSION, in voluntary deed not generally supplied, 391, 395 voluntary deed, when rectified by, of powers, 481 ONUS : see Proof, Burden of. OUTLAW, Crown stands in place of 170 OUTLAWRY, fraudulent, 33 rights of Crown as creditor under, 169, 170 after making a voluntary deed, 530 PARENT — (see Ci-illd ; Fathee ; Mother ; Undue Influence) influence of, over child presumed, when, 484, 488, 489 burden of proof on, as to gift or voluntary settlement by child, when, 488, 489 gift to, or voluntary settlement on, by child, when voidable, 488 confidential relation of, to child, 484, 488 gift to, or voluntary settlement on, by child, when upheld, 488, 489 or voluntary settlement by child to person in loco parentis, 490 gift to or voluntary settlement on, child by, 491 PARLIAMENT, expenses incurred as candidate for, no consideration, 256 deed as qualification for, when binding, 471 , 47 2 PAROL AGREEMENT on marriage before Statute of Frauds, 370, 371 since, 371 part performance of, 371-374 do not support post-nuptial settlement against creditors or purchasers, 375-382 when upheld, 383 to make ante-nuptual settlement prevented by fraud, 386, 387 gifts of chattels by, with or without delivery, 407, 408, 410 declaration of trust by, 404, 444 PAROL REPRESENTATION not within 4th section of Statute of Frauds, 384 inducing marriage only enforced of existing fact, 384, 385 post-nuptial settlement to make good, when upheld, 386 PARTICEPS CRIMINIS mulcted in coats, 551, 552 can set aside contract, when, 469 gift of property by, 469 : see Under Influence. cannot allege the fraud, 470 PARTICIPATION of subsequent creditors, when settlements set aside, 62, 518, 521 seems contrary to words of Act, 62 analogy in old bankrupt law, 62 See Subsequent Creditor. PARTITION of real estate assigned to Chancery Division, 533 PARTNERSHIP, action as to, when assigned to Chancery Division, 532 (5714) INDEX. 629 [The paging refers to the [*] pages.] PART PERFORMANCE of parol agreements, 371 marriage is not, 372 other acts may be, after marriage, 37C-374 not by party chargeabl e, 374 ordinary rules apply as to, after marriage, 374, 375 by transfer of fund before marriage, 364 PARTY — (see Action ; Plaintiff) innocent, protected under 13 Eliz. c. 5 : 79, 80 to fraud cannot allege it, 470 to action for specific performance, 514 bankrupt settlor not proper, to action to avoid settlement, 522 grieved under 13 Eliz. c. 5, or 27 Eliz. c. 4, who, 541, 542 not a common informer, 542 PATIENT. gift by, to doctor, 484, 495 PAYMENT— (sec Debt) of debts by third person, settlement purchased by, 250, 251 PECUNIARY ADVANTAGE, gi ving up, a consideration, 256 PENAL CLAUSES : see Penalty. PENALTY nnder 13 Eliz. c. 5, when incurred, 536-538 under 27 Eliz. c. 4, when incurred, 537 clauses imposing, to be strictly construed, 537, 538 only in cases of actual fraud, 538, 539 forfeiture of one year's value of land, 537, 542 of whole value of personalty, 537, 542 imprisonment for half-year, 537 incurred by refusal to answer interrogatories, whether, 539-541 principal not liable to, for act of agent, when, 541 every defendant liable to, 542 infant liable to, 542 production of documents, whether enforced, if producer liable to, 541 not confined to amount of debt, 543 venue for, 542 imprisonment for, 543 payment of money as, remitted by Crown, when, 543 PENDENTE LITE, voluntary conveyance, 70, 73, 75 conveyance for value, 99 PERSONAL CHATTELS, Bills of Sale Acts apply to, 136, 137 what are, under Bills of Sale Act, 1878 : 149, 150 what are not, underbills of Sale Act, 1878 : 149, 150 to be afterwards acquired, how assigned under Bills of Sale Acts, 160-102 within 13 Eliz. c. 5 : 1, 2, 17 et seq. . see Property. not within 27 Eliz. c. 4 : 204 trust of declared by parol, 404, 444 PERSONAL PROPERTY— (see Personal Chattels ; Property) all within 13 Eliz. u. 5 : 1, 2, 17, 18 not within 27 Eliz. c. 4 : 1, 2, 204 what, within Bills of Sale Act, 1878 : 136, 149, 150 (5715) 630 INDEX. [The paging refers to the [*] pages. ] PLAINTIFF— (see Action ; Party) who may be, under 13 Eliz. c. 5 : 518 et seq. under 27 Eliz. c. 4 : 512-514 : see Purchaser. to avoid deed for undue influence, 502, 503 may be creditor and purchaser, 517 lien or judgment now unnecessary for, under 13 Eliz. c. 5 : 526, 527 PLEA OF EELEASE, 533 POLICY — (see Life Insurance) settlement of, now within 13 Eliz. c. 5: 20 reckoned as assets, 55 gift of, how made, 453-457 now legally assignable, .410, 411, 453 »., 456, 457 PORTION, additional, after marriage, 365 amount of, immaterial, 366 raising of, on land, assigned to Chancery Division, 533 POSSESSION, continuance in, mark of fraud in voluntary conveyance, 67, 70, 113 when, in conveyance for value, 98, 113 difference as to real and personal property, 113, 115 of land not therefore fraudulent, 114, 115 such as case admits of suffices, 115 mere fact of, as to real estate after sale or after mortgage of real estate, no evidence of fraud, 116 difference as to, after absolute or conditional sales of personal property, 116 after absolute transfer of personal property merely prima facie presumption ■ of fraud, 116, 119, 121 want of, not always fraudulent, 118 formerly conclusive evidence of fraud, 116, 117 whether fraudulent when more property covered than necessary, 118, 121 after absolute conveyance, when fraudulent, 120 a question of fraud or no fraud in each case, 121, 122, 126 in conditional transfer of personal property, 116, 120, 122, 124 consistent with deed, no presumption of fraud, 120, 122, 123, 124, 125 subsequent acts must be consistent with deed, 123, 124 after assignment by debtor to prefer creditor not always proof of fraud, 125 to defeat execution or sequestration, 125 mortgage with no proviso for retaining, not conclusive evidence of fraud, 124 by trustees, after assignment to, for creditors, not necessarily fraudulent, 125, 126 • notoriety of, lessens presumption of fraud, 126, 133, 134 secrecy of, increases presumption of fraud, 126, 127 only valuable as evidence of reality of transfer, 127 mere formal, no use, 127 delivery of, must exclude reputed ownership, 127, 128, 129 must be exclusive, 128 under Bankruptcy Act, 1883: 128, 135 of husband after gift to wife of property, 128, 129 only necessary for objects of deed, 129 joint, question for jury, 129, 130, 131 (5716) INDEX. 631 [The paging refers to the [•] pageB.] POSSESSION— (continued) want of, after conveyance for money then paid, 131, 132 after sale by sheriff, 132 and debtor in possession as tenant of purchaser, 133 when sale is notorious, 133, 134 continuance in, after secret transfer of personal property, when prevented by Bankruptcy Act, 135 after assignment for sale consistently with deed, though secret, not fraudulent under 13 Eiiz. c. 5: 135 apparent, what is, within Bills of Sale Acts, 136, 137, 150-152: see Appa- rent Possession. if at once taken, transaction not within Bills of Sale Acts, 146 whether right to immediate, given or not, immaterial under Bills of Sale Acts, 146 under elegit not a purchase, 228 retained after gift of land, 471, 472, 474 of voluntary deed by grantor, 453, 458, 459, 471-475 of deed obtained by fraud of grantee, 473, 474 POSSIBILITY— (see Gift) assignment of, 447, 450, 451 POST-NUPTIAL SETTLEMENT— (see Settlement) within 13 Eliz. c. 5: 31 bill of sale is, 147 is not, if in pursuance of ante-nuptial agreement, 147 cestui que trust under, not generally purchaser, 123 between husband and wife for value, when a bargain, 224, 285 et seq., 295 separation deed is, 301 in general voluntary, 365 when supported as for value, 223, 224, 340, 365, 366, 367 will release or disclaimer of power by married woman now support, 366, 367 by married woman of her property, whether now for value, 295, 296, 367 for value, in favour of whom, 368 founded on ante-nuptial written agrement, when for value, 368, 369 on parol ante-nuptial agreement before Statute of Frauds, 370,371 after Statute of Frauds, 371 effect of part performance on parol agreement followed by, 371-374 whether sets up parol ante-nuptial agreement as against creditors or pur- chasers, 375-382 recital in, of ante-nuptial parol agreement 382, 383 founded on parol agreement acted on before marriage, 384 on parol representation before marriage, 384-386 on written representation to induce marriage, acted on, 386 husband restrained from selling real estate in, when, 512 POWER — (see Appointment; Revocation, Powek of) general power of appointment by deed by married woman, not within 13 Eliz. c. 5: 31 general power of appointment by deed, within 13 Eliz. c. 5: 31, 33 naked power not an ownership, not within 13 Eliz. c. 5: 31 limited power of appointment not within 13 Eliz. c. 5: 31, 33 of revocation avoids voluntary settlement under 13 Eliz. c. 5: 76 in conveyance for value, strong mark of fraud, 111, 112 under 27 Eliz. c. 4: 209 et seq.: see Revocation, Powek of. to sell and settle other lands, 212 to charge a certain sum, 214 suspended by lease, 214 release of, by married woman, whether now for value, 366, 367 defective execution of, when relieved against, 393, 394, 395, 396 (5717) 632 INDEX. [The paging refers to the [*] pages. ] POWER— (continued) defective execution of, when not, 395, 396 for whom supplied, 394, 395 for whom not supplied, 394, 395 intention of donee of, carried out, 395 proved by appointee, 396 of attorney validly exercised after death of donor, 412 gift of, whether declaration of trust, 418-420, 440 effect of Judicature Act, 187 J, on, 455, 456, 457 donee of, created by self voluntarily, 460 voluntary release of, 412 revocation, absence of, mark of fraud in voluntary settlement, when, 497-501 exercise of, of appointment by debtor, when restrained, 531 of revocation subjects personalty to probate duty, when, 502 PRACTICE under 13 Eliz. c. 5: see Action; Creditor; Deed; Inquiries; Subse- quent Creditor. under 27 Eliz. u. 4: see Action; Deed; Purchaser; Specific Perform- ance. as to voluntary settlement- sec Action; Rectification; Undue Influ- ence. PREFERENCE — (see. Fraudulent Preference; Priority) secret, a fraud on creditors, when, 104 of any creditor in arrangement with all, when a fraud, 104 by insolvent debtor, valid under 13 Eliz. u. 5: 104, 109: see Creditor. PRESUMPTIVE FRAUD: see Fraud. PRICE — (see Inadequacy. inadequacy of, 81, 247-249' PRINCIPAL— (see Agent. how far liable for acts of agent, 541 gifts by, to agent, 484, 504 PRIORITY of creditors not effected by 13 Eliz. c. 5: 11, 12, 100, 104, 109 none under Bankruptcy Acts, 11. 101: see Fraudulent Pre- ference. of creditor, right of debtor to give, when, 100, 106, 107, 109 PRIVATE charities, 207 covenant, 199 deed void against purchaser, 199 wrong, compromise of, 311 PROBATE— (see Duty) Division, exclusive jurisdiction of, as to wills, 498 ■ of will time to raise question of undue influence or fraud, 498 grant of, conclusive proof of true will, 498 duty payable on voluntary deeds, when, 459: see Duty; Revocation of Power. on donatio mortis caustl, when, 459 on property transferred to self and another, when, 459 on personalty subject to power of revocation, when, 502 PRODUCTION of documents, when enforced under statutes of Elizabeth, 540, 541 (5718) INDEX. 633 [The paging refers to the [*] pages.] PROFITS pendente lite, whether decreed back, 529 PROMISE as to costs a consideration, 253 proceedings in bankruptcy, 253 by heir and devisee, 253, 254 to reduce parol agreement to writing prevented by fraud, 386, 387 voluntary, not enforced, 389, 402 PROMISSORY NOTE, donatio mortis causa of, 410 legally assignable, 410 gift of, 410 declaration of trust by, 411 PROOF of considerations not mentioned in deed, 219, 266, 267: see Considera- tion; Evidence. PROOF, BURDEN OF, in voluntary settlement, when on settlor, 64, 51 G when on creditor, 515, 516. 517 when on subsequent creditor, 64, 516 in conveyance for value rests on impeacher, 84 in bill ot sale, as to accuracy of description, on impeacher, 158 that limitation in marriage settlement is contracted for, on whom, 358 on appointee of power to prove donee's intention, 396 of no undue influence, when on donee, 484, 485-488, 492 of undue influence, when on donor, 485, 486, 492 whether on donee that donor understood his act, 485 of undue influence as to wills, 497, 498 of declaration of trust, on whom, 444, 445 PROPERTY, separate, of married woman, 28, 29, 31, 295: see Married Woman; Wife. wife's equity to settlement of what, 29, 296: see Equity to Settlement, within 13 eliz. c. 5, all kinds of real and personal, 2, 17, 31 only if it can be taken in execution at time of conveyance, 17, 22, 23 by changes in law before conveyance may become, 18, 23 copyholds formerly not, but are now, 18, 22 money, bonds, choses in action formerly not, but are now, 18, 20, 22, 23 stock formerly not, but is now, 18, 22, 23 policies of life insurance formerly not, but are now, 18, 19, 22 all, if settlor dies or is bankrupt, 19, 23 purchased in name of child, wife, third person, formerly not, but is now, both in England and America, 20, 21 appointment of, purchased in name of trustees on trust as settlor ap- points, 21 purchased in names of husband and wife, whether, 20, 21 purchase-money of property sold, 22 shares in public funds and public companies, 23 by Judgment Act, 22, 23 money voluntarily spent by husband on wife's property is, 22 reversionary interest, vested or contingent, is, 18, 24 debt, forgiveness of, is, 24 leaseholds are, 24, 25 any disposition of, 33 general power of appointment by deed 31 by married woman not, 31, 33 (5719) 634 INDEX. [The paging refers to the [•] pages. J PROPERTY {continued) within 13 eliz. c, 5 — (continued) term held as administrator, not, 24 , estate tail resettled, not, 24 pay of officers, not, 25 office of trust, not, 25 remaining and actually available must be sufficient for debts, 41, 42, 49, 50, 51 value of unsettled, how and when estimated, 55, 57, 59, 60 settlement which withdraws none, good, 55, 56 fraudulently aliened, assets for creditors, 67 n., 69 fraudulent grantee of, executor de son tort, 69 within 27 eliz.'o. 4, real property and interests in land, 2, 7, 13, 202, 203 interests in land legal or equitable, 203 corporeal or incorporeal, 203 chattels real, 2, 5, 13, 203, 204 leaseholds 203, 256 et seq. advowsons, 203 rent-charges, 203 timber, 2U3 minerals, whether, 203 copyholds, 203, 204 personal property not, 2, 7, 204 money charged on land and secured by term, not, 204 WITHIN BILLS OF SALE ACTS, personal chattels only, 135, 136 et seq., 149, 150 : see Bills of Sale. after-acquired personal chattels, 160,162 : see Aftek-ACQUIEED Peopeety. PROSTITUTION, contracts founded on, void, 461 PROVISO— (see Notice , Puechasek) in favour of bon& fide purchaser without notice under 13 Eliz. c. 5 : 2, 78 et seq. under 27 Eliz. c. 4 : 2, 188, 188, 197 PUBLIC wrongs, compromise of, 311 policy contracts void on ground of, 469 PURCHASE — {see Purchase-money ; Purchases) within 13 eliz. c. 5, in names of third parties, formerly not, now is, 20, 21 by husband in joint names of self and wife, whether, 20, 21 for money paid, when void for inadequacy of price, 247, 248 within 27 eliz. c. 4, in names of third persons solely or jointly with self, whether, 200-202 effect of lapse of time on, 202 colourable, not good, 218 judgment is not a, 225 for money paid, when void for inadequacy of price, 247, 248 PURCHASE-MONEY UNDER 13 ELIZ. C. 5, on sale of settled property, 22 fraudulently settled by vendor, 79, 535 may not be given so as to, defraud creditors, 86, 87 UNDEE 27 ELIZ. C 4, when settlement avoided, formerly given to volunteers, when, 207, 466 now paid to vendor, 207, 208 (5720) INDEX. 635 [The paging refers to the ("] pages.] PURCHAFE-MONEY— {continued) persons interested under settlement have no equity against, 208, 4G6 must be really paid by purchaser or mortgagee, 218 PURCHASER— (see Consideration Ex Post Facto ; Purchase) under civil law, 8 for value without notice protected under Bankruptcy Act, 1883 : 43 meaning of. under Bankruptcy Acts, 43 for value without notice not affected by undue influence, 504, 505 who is, under marriage settlement, 336, 337, 342 : see Consideration' ov Marriage, under 13 el1z. c. 5, for value protected if bon& fide and without notice, 78, 79, 80 : sec Consid- eration, Valuable. must have notice of fraud to avoid settlement, 79 for third parties when protected, 81, 82 under family arrangement protected, 82, 83 may become so by ex post facto consideration, 83, 84, 315 et seq. -. see Consid- eration Ex Post Facto. and persons claiming under him only protected, 86 from voluntary grantee or grantor, when protected, 325, 326 under 27 eliz. c. 4, fraud against, not complete till second conveyance, 14, 15, 324 all voluntary convevances void against subsequent, 11, 13, 187, 191, 192, 217, 244 " voluntary conveyance only Void against, 203, 209, 463, 464, 465, 466, 529 trusts of voluntary deed subsist subject to rights of, 465, 466, 539 conveyances for value and bona, fide without notice, protected against, 2, 188, 197 doctrine as to subsequent, well settled, 188, 190, 191, 195 not protected if consideration grossly inadequate, 188, 189 fraud against subsequent, how shewn, 187, 189 conveyance on meritorious consideration void against subsequent, 192, 195, 196 voluntary conveyance to trustees void, 192 recovery by tenant in tail with voluntary uses void, 192 indebtedness of voluntary settlor immaterial against, 193 notice to, of voluntary deed immaterial, 193, 195, 196 fraud against subsequent, merely constructive, 187, 193, 194 with collateral security against voluntary deed, 196 conveyance for value void against subsequent, if actually fraudulent, 197 when constructively fraudulent, 197, 198, 199 voluntary secret deeds void against subsequent, 199 conveyance of reversion in fee, whether always void against sub- sequent, 205 cestui que trust, under post-nuptial settlement when, 223, 224 must be, for valuable consideration, 217, 218, 219' value must be really given and bona fide, 217, 218, 219, 235 a mortgagee legal or equitable or by deposit of deeds is, 219 owner of equitable estate is, 219 trustee, when, 220 release of adverse claims, 220 lessee, when, 220, 221 surety, when, 221 assignee of lease, 221 not by ex post facto consideration, 221, 222 mining agreement, 220 marriage consideration makes husband, wife, and issue, 222, 223 husband, jure mariti, not 223 ' judgment creditor not, 224, 227 (5721) 63G INDEX. [The paging refers to the [•] pages.] PURCHASER— {continued) in Americajudgment creditor not a, 229 trustees for creditors, whether, 229, 230 creditor taking specific mortgage is a, 231, 232 assignee by general words not, 231, 233, 23-1 in bankruptcy, 233, 234 true test of who is, 235 annuitant by general charge not a, 235, 236 trustee of voluntary deed, whether, 236, 237 from person other than voluntary settlor, whether a, 237, 238, 239, 241 from heir of settlor not a, 239, 240, 241 from devisee of settlor not a, 237, 240, 241 from grantee of second voluntary settlement not a 237, 240, 241 in America purchaser from person not settlor not a, 241 contract tor sale by settlor enforced against heir or devisee by. 241 irom person virtually settlor a, 242 of different interests in same land from different persons a, 242 consideration against, what suffices, 244, 247, 248, 249 separation deed, when good against, 301 et seq. : see Separation Deed. rights of two, of same property from two voluntary grantees holding from same grantor, 327, 328, 329 from voluntary grantee and of a voluntary grantee from same grantor, 327, 328, 329 subsequent from same gran- tor, 328, 329 deed voidable against, good for all other purposes, 316, 317, 326, 327, 463, 464, 465 sale enforced for, 512, 513 cannot enforce contract for sale of leaseholds, 513 can recover back deposit, when, 512 can enforce sale against purchaser from him, 513, 514 plaintiff creditor and, 527 deed declared void only against, 529 cannot have deed cancelled, 529 deed partly good against, 534, 535 QUALIFICATION to shoot game, deed for, when binding and when not, 471 , 472 as sheriff, deed to prevent, 471 for Parliament, deed for, 471, 472 REALITY OF TRANSFER, 111, 113, 117, 127, 178, 274: see TRANSFER. REAL PROPERTY, 2, 5, 202, 203: see Property. within 13 Eliz. c. 5: 1, 2, 17 within 27 Eliz. c. 4: 1,2, 202 RECEIPT for purchase-money a bill of sale, 147, 316, 317 for money, when a declaration of trust, 441 RECITAL in deed evidence against parties, 378 in post-nuptial settlement of ante-nuptial written agreement, 368 parol agreement, 382, 383 RECONVEYANCE when ordered, 530,[531 RECOVERY not set aside, 530 (5722) INDEX." 637 [The paging refers to the [*] pages.] RECTIFICATION, not, of voluntary deed in accordance with agreement, 391 of trusts, when mistake proved, 393, 482 of voluntary settlement, not against settlor, 481 on ground of mistake, when, 481, 182 of part of voluntary settlement as against settlor only by consent, 481 of voluntary settlement, not, by inserting power of revocation, 482 when, after death of settlor, 482 what evidence necessary for, 482 what proceedings to be taken for, 482 of deed by order of Court, without conveyance, 482 assigned io Chancery Division, 533 REFUSAL TO ANSWER interrogatories under statutes of Elizabeth, 539, 540 REGISTRATION— (see Bills of Sale) of bill of sale, when necessary under Act 1878: 136, 153 under Act 1882: 138, 154 not of transfer or assignment of registered bill of sale, 1 55 not of sub-mortgage of registered bill of sale, when, 155 on transfer of bill of sale and further advance, whether, 155 renewal of, under Bills of Sale Act, 1878: 155 is date of priority of two bills of sale, 154, 155 object of, 136, 158 effect of want of, under Act 1878: 150, 465 under Act 18*2: 140, 465 of lis pendens, whether protection to volunteers, 531 REGISTRY ACTS, 237, 238 REIMBURSEMENT, provision for, in separation deed, 305, RELATION back of judgments against volunteers, 229 back of consideration ex post facto, 317, 326 RELATIONS, gift to, suspicious, 56, 57 sale to, no evidence of fraud, 56, 81, 81 n. consideration as between, 56, 57, 246, 247 surrender of copyholds not supplied for, 391 defective execution of power supplied for what, and when, 394, 395 RELEASE — (see Disclaimer) of debts within 13 Eliz. c. 5: 33 creditors when not barred by, 184, 185 of adverse claims within 27 Eliz. c. 4: 220 of dower by wife, formerly valuable consideration, 283 whether now valuable consideration, 283 of marital rights, formerly valuable consideration, 306 whether now voluntary, 306 of power by married woman, whether now voluntary, 366, 367 is a covenant not to exercise power, 412 of claim, when pleaded, 533 RELIGION, minister of, gift to, 495: see Undue Influence. REMAINDERMEN, bargains of, with tenants for life, 24, 261-266 bargains of, in tail, with tenant for life, 345, 346, 362, 363 third person, 362, 363 46 STAT. OF eliz. (5723) '638 'INDEX. [The paging refers to the [*] pages. ] REMARRIAGE, settlement on, after divorce, 341 of widow, settlement by, on illegitimate children, 346 et seq. children or issue, 346 et seq. of widower, settlement by, on illegitimate children, 352, 353 children or issue, 352, 353 RENT, continuance of, a consideration, 253 lessee at, within 27 Eliz. c. 4 : 217, 220 liability for, supports assignment of leaseholds under 27 Eliz. c. 4 : 221 REPRESENTATION to induce marriage, 321 Statute of Frauds, fourth section, does not apply to, 384 parol, followed by post-nuptial settlement, 384, 385, 386 enforced only if of existing fact, 385 • in writing followed by post-nuptial settlement, 386 whether, must be to one of persons to be married, 386 REPRESENTATIVE OF CREDITORS— (see Ckeditoe ; Trustee) deeds void against, 170, 171 REPUTED OWNERSHIP— {see. Possession) delivery of possession must exclude, 127, 128 rule as to non-possession same as, 128 .what is, under Bankruptcy Act. 1883: 128 gift by husbad to wife not good against his creditors if in his, 128, 129 does not apply if possession consistent with title, 129 applies only if bankrupt is in sole possession as sole reputed owner, 129 applies, when, under Acts 1869, 1883 : 135 applied to all bankrupts before Act 1861 : 135 n. not under Bills of Sale Act, 1878 : 152, 153 under Bills of Sale Act, 1882: 153 unregistered bill of sale within, 153 RESTITUTION, when marriage settlement set aside, impossible, 335-337 of conjugal rights, covenant not to sue for, 306, 308 injunction against, 314 RESULTING TRUST— (see Trust) avoids deed under 13 Eliz. c. 5 : 11, 96, 97, 98 in trusts for creditors, avoids deed, when, 32, 72, 87-89, 97, 98 does not avoid deed, when, 32, 87-89, 98 settlement on particular marriage, when for settlor, 477, 478 in voluntary settlement for settlor, when, 430, 431 REVERSION, sale of, inadequacy of price as to, 248 gift of, 402, 447 : see Gift. equitable, 448, 449, 450, 451 REVOCABLE TRUSTS, for creditors originally voluntary, may become for value. 329, 433 et seq., 463 REVOCATION, POWER OF— (see Power) IN VOLUNTARY SETTLEMENT, if not inserted, settlement not rectified, when, 4 Q 1, 482 impeached for absence of, by parti sh adverse to settlor, 498, 499 by settlor and parties claiming uuder him, 498, 499 (5724) INDEX. 639 [The paging refers to the [»] pages.] REVOCATION, POWER OF— (continued). absence of, formerly great mark of undue influence and fraud, 496, 497, 499 now merely a circumstance in case, 499, 500 may be evidence of undue influence, 500, 501 under 13 eliz. c. 5, voluntary conveyance with, when, 31, 33 in voluntary conveyance, void against future creditors, 76 in conveyance for value, strong mark of fraud, 111, 112 a power to mortgage to any extent, 111 for particular purpose, 112 voluntary conveyance with, not expressly avoided, 111 UNDER 27 ELIZ. C. 4, existence of, when evidence of attempt to defraud, 209, 210 when exercisable at any time, fraud the same, whether in voluntary deed or for value, 210 exercisable at future date, 210, 211 within fixed period, 210, 211 only by will, 212 extinguished, 211 with assent, 211, 212 power to sell and settle other land, 212, 213 on payment of trifling sums, 313 fraudulent against purchasers only, 213, 214 power to charge sum certain, 214 Bullock v. Thome, 214-216 suspended by lease, 214 SALE — (see Specific Performance) for full value, creditors not injured by, 38, 80, 81 : see Bills of Sale. to relation, 56, 57, 81 possession retained after, 113 et seq. : see Possession. intended to be a mortgage, 468 voluntary settlement of property under 27 Eliz. c. 4, defeated by, 208, 209, 463, 466 of land by voluntary settlor not enforced, 315, 511, 512 enforced for purchaser, 511, 512 of leaseholds settled not enforced for purchaser, 513 of land by purchaser from voluntary settlor enforced, 513, 514 of lands only by voluntary settlor himself within 27 Eliz. c. 4: 237-242 contract for, death of settlor after, 241 of different interests in same lands by different persons, 241 of land by voluntaiy grantee, when good, 325 by second voluntary grantee, void. 326, 327 by volunteers, 316, 317, 321, 322 : see Consideration Ex Post Facto. of real estate assigned to Chancery Division, 533 SCHEDULE of debts filed, evidence against debtor only, 515 SCOTLAND, bill of sale of goods in, needs not registration in England, 149 inhibition in, against wife after separation does not prevent deed being voluntary, 306 settlement made in England on re-celebration of marriage in, voluntary, 223, 367, 368 SECOND SETTLEMENT of same fund creates no debt, 401 SECRECY a badge of fraud, 99, 118 »., 126, 127 (5725) 640 INDEX. ["The paging refers to the [*] pages.] SECRET DEED void against purchasers, 199 good against subsequent voluntary settlement, 453 for special purpose only, when set aside, 471, 472 SECURITY for debt is on valuable consideration, 97, 110, 252 got by undue influence, 504 for arrears of voluntarv debt, 256 gift of, 410 SELF-CRIMINATION refusing to answer interrogatories tending to, 539, 540 SEPARATE ESTATE: see Married Woman. SEPARATE PROPERTY: see Gift, When Complete; Married Woman; Post-nuptial Settlement; Property; Wife. SEPARATION DEED— (see Post-nuptial Settlement) between husband and wife a post-nuptial deed and voluntary, 301, 312 not against public policy, 301, 312 may be for value as against creditors or purchasers, 301 while merely an agreement, not enforced, 301, 312 covenant of indemnity in, by trustees or third person, against wife's debts, valuable consideration for,301, 311, 312 of value to husband, 302 ' by wife alone in, when enforced by her, 302, 305 trustee for wife not now necessary party in covenant in, 302 covenant of indemnity, by wife alone, against her debts, whether now for value, 303, 304, 305, 311, 312 against her debts and claim for ali- mony in, 'whether now for value, 304 conditional covenant in, for value, 304 agreement for, with proper clauses, enforced, 304 covenant for support of children in, 304, 305 provision to reimburse husband in, when voluntary, 305 after inhibition of Scotch Court, when voluntary, 306 release by husband of marital rights in future-acquired property of wife, formerly for value, 306 of rights in wife's property, whether now for value, 306 covenant for compromise of suit for divorce in,- for value, 306, 307, 308 contract not to sue for restitution of conjugal rights by married woman in, 308, 309 contract by married woman in, of no value if she has then no separate property, 305, 309 theory of, what, 309 wife's relinquishing claim to alimony, whether for value as against credit- ors, 309, 310 reciprocal covenant by husband and wife in, not to sue for restitution of conjugal rights, 310 compromises of indictments in, when valid, 310, 311 collusion between husband and wife in, 311, 312 after death of husband and wjfe, when not supported as voluntary, 312 trusts of, executed, carried out, when, 312 from mistress voluntary, 312, 313 execution of, when a consideration, 313 avoided by re-cohabitation, 313 whether also post-nuptial, 313, 314 covenant in, to live apart, enforced, 314 (5726) INDEX. 641 [The paging refers to the [*] pages.] SEQUESTRATION, voluntary conveyance to defeat, 70 n., 72, 73, K)0 n. of ehoses in action, 19 «. writ of, when not defeated, 100 conveyance for value to defeat, 72, 73, 85 SETTLEMENT — (see Creditor; Deed; Purchaser; Subsequent Cred- itor) of what property within 13 Eliz. c. 5: 17-23 27Eliz. c. 4: 202-204 by husband of property in wife's right within 13 Eliz. c. 5: 12, 13 by wife of her separate property now within 13 Eliz. c. 5: 30 on wife by stranger good against her ante-nuptial debts, 30 what kinds of, voluntary, within 13 Eliz. c. 5: 31, 32 for value, within 13 Eliz. c. 5: 32 every kind of, within 27 Eliz. c. 4: 202 by person indebted in pursuance of agreement, whether void, 36 voluntary, when good against creditors, 35 et seq., 61 etseq. : see Volun- tary Conveyance. purchasers, 187 et seq. for value, when'good, 78 et seq. : see Conveyance for Value. post-nuptial, registration of, under Bills of Sale Acts, 147, 340: see Bill of Sale. when voluntary, 261 et seq., 295, 340, 365 et seq. when for value, 223, 224, 295, 296, 340, 365 et seq. : see Post- . nuptial Settlement. purchased by third person, 82, 250, 251, 365 on marriage, how different from others, 260, 261, 335 et seq.: see Mar- kiage Settlement. limitations in marriage, 342 et seq.. see Limitations in Marriage Set- tlement. family, when voluntary, 34, 261 et seq.: see Family Arrangement; Family Settlement. of estates tail, 24, 263-266 of goods on wife for separate trade, 339, 340 on remarriage after divorce, 341 by husband and wife, when a bargain, 283 et seq. : see Bargain. voluntary, made good ex post facto, 315 et seq. : see Consideration Ex Post Facto. second, of same fund creates no debt, 401 of land not existing, 401 voluntary, when complete, 401 et seq. : see Gift, When Complete. in contemplation of particular marriage, not re voked, when, 477, 478 consideration of marriage attaches to which of two, 477, 478 rectification of, 481, 482: see Rectification. , when voidable for undue influence, 483 et seq. . see Undue Influence. construction of voluntary, and for value, same, 458, 460, 461 coming out in the answer, 518 of surplus, if any, impeached, 527, 528 part good, part set aside, 458, 459, 534, 535 impeached by cross bill, 527 SETTLOR— (see Voluntary Conveyance) on death or bankruptcy of, settlement under 13 Eliz. c. 5, avoided, 19, 23 all circumstances of, at time of settlement under 13 Eliz. c. 5, to be re- garded, 15, 35, 54, 75 sale by person other than the, does not avoid voluntary deed, 237-241 voluntary, retains no estate to convey to any one but a purchaser, 240, 326. 327 death of, after contract for sale, 241 (5727) 642 INDEX. [The paging refers to the [*] pages. J SETTLOR— (continued) when virtually the same person as the vendor, 242 death of, while deed in preparation, 405 complete gift by, unaffected by change of mind of, 405 settlement by, when voidable for undue influence, 483 et seq. : see Undue Influence. voluntary settlement retained or destroyed by, 458, 459, 475 from what time binding on, 458, 472 not assisted to defeat his own gift, 476, 511 not restrained from selling nnder 27 Eliz. c. 4 : 511, 512 sale of laud enforced against voluntary, 512 sale of leaseholds not enforced against voluntary, 513 burden of proof of solvency on, when, 52 516 SHARES— (sec Stock) are goods and chattels within 13 Eliz. c. 5 : 18, 23 gifts of, 411, 413 : see Gift. settlement of, set aside without charging order, 507 SHERIFF, possession of debtor after sale by, 132, 135 executing process as a creditor, 171-181 fraudulent deeds void against, 171 execution void against, 171 liability of, to execute writs in order received unless fraudulent, 177 how to decide whether prior deed or execution fraudulent, 178 powers of, under Interpleader Act, 179 under Common Law Procedure Act. 1860 : 179, 180 must prove he was acting for a creditor, 173, 174 evidence of fraud in prior judgments and executions, 174* bound to seize and sell after fraudulent execution, 176, 178 although he has sold after notice, 176-178 right of. to indemnity, when, 177 bound by acts of his officers, 180 appointed after fraudulent execution, 180 gift to avoid being qualified as, 471 SISTER, gifts to and by, 495 marriage with deceased wife's settlement on, voluntary, 477 SOLICITOR— (see Client ; Undue Influence) letter to, and transfer, when declaration of trust, 442 instructions to carry out gift not a declaration of trust, 443 confidential relation of, to client, 486-488, 493 undue influence of, over client, when assumed, 484. 486-488 cannot take gift from client while such, 49:> gift to, or voluntary settlement on, by client, when upheld, 493 SOLVENCY— (see Insolvency) when settlor must prove, at time of settlement, 41, 52, 516 of settlor, how estimated, 55 et seq. SPAIN, principles of 13 Eliz. c. 5, adopted in, 10 SPECIAL PURPOSE, deed executed for, 471, 472 SPECIALTY DEBT implies consideration, 399 (5728) INDEX 643 [The pnging refers to the [»] pages. ] SPECIFIC incumbrancers, how different from general creditors, 163, 104, 230 mortgage to creditors a sale, 231 SPECIFIC PERFORMANCE, question of consideration in cases of 2G1, 272 in cases of family arrangements, 272 et seq. of voluntary agreement, contract, covenant, not enforced, 261, 389, 390 of agreement for value enforced, 390 of contract to sell land not generally enforced for voluntary vendor, 315, 511, 512 enforced for vendor only if willing purchaser, 511, 512 enforced for purchaser, 512, 513 leaseholds by voluntary settlor not enforced for pur- chaser, 513 whether enforced for creditors of deceased settlor, 512, 513 purchaser from settlor can enforce, against purchaser from him, 513, 514 parties to action for, 514 order for, 529 of contracts assigned to Chancery Division, 533 SPIRITUAL ASCENDANCY, gift obtained by, 495 See Undue Influnce. STATUTE OF FRAUDS, representation not within fourth section of, 384 agreement in consideration of marriage within, 371, 375 et seq. whether excluded by part performance of parol agreement, 371 et seq. may not be set up to cover fraud, 470 trusts when proved by writing under, 404, 443 who can declare trust under, 404, 443 STOCK— (see Shares) formerly was not, but now is, within 13 Eliz. c. 5 : 18, 23 on death or bankruptcy of settlor brought within 13 Eliz. u. 5 : 19, 23 gift of, how made, 411, 413 : see Gift. SUBSEQUENT considerations for voluntary deeds, 315 et seq. . see Consideration Ex Post Facto. dispositions of settled property by grantor under 27 Eliz. u. 4 : 187, 475 476 if voluntary, invalid, 475 of property not within 27 Eliz. c. 4, for value or voluntary, 475, 476 avoided by creating voluntary debts, 476 SUBSEQUENT CREDITOR— (see Action) voluntary settlement good against if by person not indebted and not fraudulent, 50, 75, 520 if by non-trader owing do debt, of all his property, 74, 75 •and action for damages pending, 74, 75 , whether if by non-trader and all prior debts paid 520 whether if by man not then about to trade and owing no debt, 68, 521 settlement for value good against, if no debt then existed, 521 void against, if so against an existing creditor, 61-64, 516- 521 : see Creditor. (5729) 644 INDEX. [The paging refers to the [*] pages.] SUBSEQUENT CREDITOR— (continued) settlement for void against on ground of intention to defeat, 13, 64 et seq., 520, 521 voluntary settlement void against — if by person indebted, and one of original creditors still unpaid, 63, 518, 519 if by person then really insolvent, though no debt then due still unpaid, 63, 64, 521 if bv man indebted about to trade, and of all or bulk of property, 65, 66, 521 if fraudulent intent proved, indebtedness immaterial, 67, 68, 72, 75, 520, 521 if made pendent lite, 74, 521 substitution of, for existing does not affect validity of settlement, 61, 520 doubtful, whether debt accrued till after settlement, 62 all let in pro rata with existing, when settlement set aside, 61, 518, 521 analogous case in bankruptcy, 61 participation of, seems contrary to words of the statute, 6 1 action by, on ground of indebtedness, must not defeat prior creditors, 521 inquiries, when allowed as to settlor's debts, 516, 517 subsequent indebtedness not evidence of fraudulent intention against, 64 voluntary deeds, onus probandi, when on, 64, 516 when on settlor, 64, 516 "creditors and others," 64, 65, 163 : see Creditor. marks of fraud against, in voluntary deeds, 66-74 generality of gift, 66 continuance in possession after gift, 67 gift made pendent lite, 70, 71, 74, 75 to defeat execution, 72 sequestration, 72 large contingent liability, 73 debt soon to fall due, 73, 74 powers of revocation, 76 : see Revocation, Power of. fraud against, must be express, 67, 73-75 consideration of natural love no good against, 76, 77 costs of, 546 SUBSEQUENT PURCHASER, 217 et seq. : see Consideration Ex Post Facto ; Purchaser. sale of land enforced for, when, 512, 513 only enforced against, if willing, 511 sale of leaseholds not enforced for, 513 can enforce sale of land against purchaser from him, 513, 514 can recover deposit from voluntary vendor, 51 2 SUBSTITUTION of fresh liabilities for debts due at date of voluntary settlement, 61, 520 civil law the same, 61 n. SUMMONS, creditor may impeach settlement in administration action by, 526 settlement whether impeached by creditor by originating, 526 by creditor on behalf of self and all other creditors of settlor, 526 SURETY a debtor within 13 Eliz. c. 5 : 59 creditor on bond for indemnity within 13 Eliz. c. 5 : 166 when a purchaser within 27 Eliz. c. 4 : 221 (5730) INDEX. 645 [The paging refers to the [*] pages.] SURPLUS — (see Amount ; Assets) settlement good when ample, then available to pay debts, 49, 50 proceeds of sale of land mortgaged and settled subject to settlement, 467 after satisfaction of creditors subject to settlement, G8, 464, 527, 528, 530 purchasers subject to settlement, 208, 209, 465, 466 529 SURPRISE, gifts or voluntary settlements void for, 462, 480, 496 : see Undue Influence. SUI JURIS, gift for voluntary settlement by persons not, 483 TACKING not of judgment to mortgage, 225 TAXES, gift to screen donor from, 473 n. TENANT, husband, for life, or till bankruptcy, when void, 338, 339 wife, for life, or till bankruptcy, when void, 339 husband, for life, or till bankruptcy, when valid, 338, 339 wife, for life, or till bankruptcy, when valid, 339 for life by curtesy, husband, whether now, 295, 367 bargains by, for life with remaindermen, 24, 264, 265 TENANT IN TAIL settlement by, when not within 13 Eliz. c 5 : 24 voluntary recovery by, within 27 Eliz. c. 4 : 192 bargains by tenant for life with, 24, 261-266 in marriage settlements, 345, 346, 362-364 TERM held as administrator, not within 13 Eliz. c. 5 : 24 TIMBER, within 2T Eliz. c. 4 : 203 TIME — (see Acquiescence ; Delay ; Laches) effect of lapse of, under 13 Eliz. c. 5 : 184 under 27 Eliz. c. 4 : 202 bars remedy for undue influence, when; 507; 509 TRADER, settlement of whole or bulk of propertyby, void, 51, 52, 53, 65, 75, 521 settlement by, void even if no debt due at its date still unpaid, 53, 65, 66, 75, 521 settlement by, void even if very small compared with amount of business, 53 settlement of all property by, void, though then having no unsecured debt, 75, 521 settlement by man not then a, when good, 53, 68, 520 TRANSFER, complete, of property, generaly irrevocable, 433 to trustees by debtor, when revocable, 433 et seq. : see Creditors' Deeds. of voluntary gift of stock, when not ordered, 432, 433 imperfect legal, not upheld as a trust, 406, 430 : see Trust. (5731) 646 INDEX. [The paging refers to the [»] pages.] TRUST, secret, a badge of fraud, 99 resulting, when avoids deed under 13 Eliz. c. 5 : 32, 87-89, 97, 98 : see Resulting Trust. in voluntary deeds, when resulting for settlor, 430, 431 of separation deed executed, when carried out, 312 complete, enforced by Court, 402 et seq. : see Gift, When Complete. voluntary, subsists subject to rights of creditors or purchasers, 464, 465, 528 : see SURPLUS, of settlement on particular marriage, when not revoked, 477 when revoked, 476, 477, 478 all property subject to voluntary, 438, 439 declaration of, may be voluntary, 397, 403-405 to take effect on marriage, when binding, 476, 477 declaration of, kept by settlor and lost, power of revocation not inferred in, 501, 502 execution of, assigned to Chancery Division, 533 declaration of, what, 403, 404, 405, 415, 416, 439, 440: see Declaration of Trust. imperfect, not upheld as gift, when, 406, 414, 415, 417-420, 439 whether transferee takes beneficially or subject to, 431-433 for creditors, when revocable, when not, 433 et seq.: see Creditors' Deeds. when revocable for other persons, 436, 437 of lands, tenements, and hereditaments declared by writing, 404, 443 of personal property may be declared by parol 404, 444 valid, not communicated to trustees, 451-453 cestuis que trust, 443, 453 addition to original, 452, 453 TRUSTEE— {see Creditors' Deeds ; Trust) debtor is, under 13 Eliz. c. 5, for creditors, 10 must care for trust property as his own, 51 notice to solicitors of, not notice to, 78 n. must not leave estate outstanding on personal security, when, 51 ». of creditors' deeds, when purchaser, 229. 230 purchasing trust property, whether a purchaser, 236, 237 mere, cannot sell, 237 for creditors, assignments to, when within 13 Eliz. c. 5 : 87-89, 97, 98 of separation deed, covenant of idemnity by, against wife's debts, 301 refusing to sue on covenant, wife may, when, 303 covenant by, for wife, in separation deed not now necessary, 303 in separation deed to support wife's children, 304, 305 contract of trustee in separation deed, what, 309 : see Separation Deed. in bankruptcy not purchaser for value, 233, 234 assignments to, for creditors, 433 et seq., 463 : see Creditors Deeds. for volunteers, 406 et seq., 446 et seq. : see Gift, When Complete. breaches of trust by, of voluntary deed, 421, 425, 426, 445, 460 gifts from cestui que trust to, when upheld, 488, 492 undue influence of, over cestui que trust, when presumed, 486-488, 492 of bankrupt settlor should bring action to avoid his settlement, 522 should now bring action to avoid his settlement, where, 522-524 title of, higher than of bankrupt settlor, 523 of voluntary settlement directed to convey in order for specific perform- ance, 529 intention to become, how shewn, 404, 415-417 : see Intention. acceptance of trust by, not necessary, 452, 453 (5732) INDEX. 647 [The paging refers to the [*] pages. 1 TRUST— LE(contfnueo) notice of trust to, when necessary, 451-453 costs of, 545 et seq. : see Costs. XrNDEKVALUE : see Inadequacy. UNDUE INFLUENCE— (see Confidential Relation) gift or settlement obtained by, set aside, 480 et seq. when presumed, 483. 48 1, 486 when not presumed; 484 burden of proof of none, when on donee, 484-486 when on donor, 485, 486 what is, 486-488, 496 gift or voluntary settlement obtained by, voidable by donor, 484, 488 marks of, 496, 497 will set aside wholly or in part on ground of, 495 to set aside a will, must be, what, 497, 498 in regard to will never presumed, 497 burden of proof as to wills, 497, 498 power of revocation, whether mark of, 498, 501 : see Revocation, Power of. marriage settlement, how affected by, 502 who can avoid deed for, 481, 502, 503 third person cannot avoid deed for, 503 against whom inference of, operates, 504 does not operate, 504 whether, must be exercised by person benefited, 505 who are within principle as to, 505 gift' or voluntary settlement obtained by, how confirmed. 505, 506 : see Confirmation. acquiescence in transaction voidable for, 506 et seq. : see Acquiescence. right to avoid gift for, when barred by delay, 507-509 costs in cases of, 551-553 , UNREALITY OF TRANSFER shewn by continuing in possession after sale or gift, 113, 117, 127 proof of fraud, 178 UNREGISTERED DEED— (see Bills of Sale) under Bills of gale Act, 1854, void as against whom, 136 Act 1878, void as against whom, 137, 150, 465 Act 1882, void against all world, 140, 465 how far avoided by execution under Act 1854 : 153 Act 1878 : 153 when executed not within Act 1882 : 154 successive, 154 when within reputed ownership, 153 and subsequently registered deed, priority of, 154, 155 transfer of registered bill of sale may be by, when, 155 VALIDITY OF GIFT, Eow far affected by fraud on third parties, 463, 464, 470 by illegality in creation, 468 by retainer, 471-475 by subsequent dispositions of the property, 475, 476 by fraud between the parties, 480 not communicated to grantee, 472, 473 to cestuis que trust, 443, 451, 453 VALUABLE CONSIDERATION— (see Conveyance for Value ; Sale) whatis, 243 et seq. ; see Consideration, Valuable. between husband and wife, 281 et seq. . see Consideration Between Husband and Wife. (5733) 648 INDEX. [Tho paging refers to the ["] pages.] VALUABLE CONSIDERATION— [continued) arising ex post facto, 315 et seq. : see Consideration E Post Facto. of marriage. 331 et seq.; see Consideration op Marriage; Marriage Settlement. contract without, not enforced, 389 et seq., 511-513: see Specific Per- formance; Voluntary Agreement. VENDOR OF LAND PREVIOUSLY SETTLED by general words, 231,234 may assignee in bankruptcy be, 233, 234 can any one but the settlor be, 237, 241 heir or devisee of settlor cannot be, 237,. 241 cannot enforce the contract, 511-513 VOID — (see Deed; Voidable} deed declared, under 13 Eliz. c. 5, only so against creditors, 464, 528, 530 under 27 Eliz. c. 4, only so against purchasers, 465, 466, 529" under Bills of Sale Acts, against whom, 136, 137, 140, 150 465 VOIDABLE— (see Deed; Void) deed, under 13 Eliz. c. 5, is not void, but, 316, 317, 325 under 27 Eliz. c. 4, is not void, but, 316, 317, 325 deed procured by undue influence is, 480 et seq. : see Undue Influence. who can set aside deed for undue influence, 488, 502 gift of right to set aside, deed, 412 VOLUNTARY AGREEMENT not enforced, whether under seal or not, 389, 390, 404, 405 even if meritorious, 390 in family arrangements, when enforced, 391 to surrender copyholds not enforced, 391 , voluntary deed not rectified in accordance with, 391 made good by subsequent acts of donee, 393 formal defect in, supplied only for wife and legitimate children, 394, 395, 397 substantial defect in, not supplied, 395, 396 must be perfect, 390, 391, 393, 397, 398 complete legal liability under, when enforced, 398 when not enforced, 399 to pay in deed creates legal debt, 400, 401 VOLUNTARY BOND giving up, a good consideration, 254 createslegal debt, 398 VOLUNTARY CONTRACT: see Contract; Voluntary Agreement. VOLUNTARY CONVEYANCE good between parties, 316, 317, 325, 463, 464, 465 only void as against creditors or purchasers, and so far as to satisfy them, 316, 317, 325, 463, 464, 46.5 voidable, and not void, 316, 317, 325 good as against all who claim through settlor, 325, 463. 464 priority of date of, is priority of title, 326, 327, 328, 329, 475, 476 in America, 328 perfect legal liability under, enforced, 398-400 complete, for particular purpose, when set aside, 472, 473 . • executed under mistake of law, when set aside, 473 delivered up if got by fraud, of grantee, when, 473, 474, 475 delivery of, to third person, 458, 475 (5734) INDEX. r349 [The paging refers to the ["] pages. ] VOLUNTARY CONVEYANCE— (continued) when donor of, has locus poenitentise, 475 not avoided by grantor's destroying, 159, 475 how far avoided by grantor's subsequent disposition, 475, 476 to take effect on marriage, when binding, 476, 477 not understood by settlor not upheld against hirn, 480, 481 unless settlor consent, upheld or set aside in toto, 481 when rectified, 481 et seq. : see Rectification. without power of revocation, when upheld, 499, 501: see Revocation, Power of. imperfect, when upheld as trust, 425 not altered after death of donor, 425 must be perfect, 397, 402 et seq. : see Gift, When Complete. construction of complete, same as if for value, 458, 460, 461 void for ignorance, surprise, undue influence, 480, 483 et seq.: sec Undue Influence, under bankruptcy acts may be void, but not under 13 Eliz. c. 5: 11, 12: see Assignment. may be good, but not under 13 Eliz. c. 5: 44 when void, 42, 51 when voidable, 43, 44 under Act 1869, by trader, 42, 51 under Act 1833, by trader or non-trader, 42, 44, 51 TINDER 13 ELIZ. C. 5, what, 31, 32 to be judged of by all settlor's circumstances at time, 15, 35, 67: see Cir- cumstances. agreement to make, when not indebted, 36 by trader or intending trader, when void, 51, 52, 53 which merely varies investment, valid, 55, 56 of all property, whether void against contingent liability, 57 not of itself, merely because assets since lost, if debt not then payable, 60 on same footing as on meritorious consideration, 76, 84 of all property, against any debt void, 49 liability, whether void, 57 if fraudulent, void, whether any debt or not, 36, 41, 516 as against existing creditors — (see Creditor) by persons indebted, void, 6, 35 not indebted, and not meaning fraud, good, 36, 520 avoided by one prior debt unpaid, when, 46, 49, 51 when not avoided, 37, 39 as against subsequent creditors — (see Subsequent Creditor) when good, 45, 50, 75 paying off debts and substituting fresh will not protect, 61 set aside, if any original creditors still unpaid, 63 if settlor not in position to make, 63, 64 when made by actual or then intending trader, 65, 66, 75 all creditors participate pro ratti, 62 marks of fraud against, 66-68, 70-73, 76 fraudulent intent avoids even if no prior indebtedness, 68, 520, 521 express, fraudulent intent necessary to avoid, 78 in favor of wife or children not impeached in America, 77 UNDER 27 ELIZ. C. 4, what, 202 always void against subsequent purchaser, 5, 7, 187, 191, 196 not void qua voluntary, bet qua fraudulent, 5, 187, 188, 189, 195 void against purchaser with notice, 193, 196 in America not void, against purchaser with notice, 5, 196 (5735) 650 INDEX. [The paging refers to the [*] pages.] VOLUNTARY CONVEYANCE— (continued) UNDER 27 ELIZ. O. 4 — (continued) in United States not void against purchaser without notice, if bona fide, 5, 196. made by direction of Court, void, 192 made to trustees, void, 192 secret, void against purchaser, 199 -wholly defeated by sale ol same property, 208, 213 only void to extent of interest of mortgagee or purchaser, 208, 209, 217, 465 subject to rights of purchaser, trusts of, subsist, 465, 466 trustee of, purchasing the trust property, 236, 237 only voidable and not void, 316, 317, 325 equity of redemption bound by, 467 of land subject to a mortgage, surplus proceeds of sale bound by, 467 sale of land after, not inforced for vendor, 315, 476, 511, 512 UNDER STATUTES OF ELIZABETH, made good by matter ex post facto, 194, 219, 315 et seq. right to avoid, how lost, 325 not spoken of such, 4, 187, 197 intent of donor alone material in, 45 good as between the parties, 68, 208, 316, 317, 325, 463, 464 only void so far as to satitfy creditors or purchaser, 68, 208, 209, 325, 460, 463, 464 in America, 69 merely declared fraudulent and void by Court against creditors or pur- chasers, 528, 529 when cancelled, 529, 530 VOLUNTEER, gift to, with or without notice of fraud on creditors, void, 45, 48 ancestor's debts avoid conveyance by, when, 165, 166 how far a creditor under 13 Eliz. c. 5: 167, 168 assignee of debt now a creditor under 13 Eliz. c. 5: 168 conveyance to, void against purchaser, 187 et seq. : see Purchaser. judgment relates back against, 229 contract for value enforceable for, when, 391, 392, 534 in America, 392 cannot generally enforce contract for value, 391, 392, 534 voluntary agreement not enforced for, 389 et seq. : see Voluntary Agree- ment. surrender of copyholds not supplied for, 391 defect in execution of powers, when supplied for, 394, 395 legal liability created in favour of, when enforced, 398, 399 claim of. when enforced against assets of deceased donor, 398, 399 gift to, 402 et seq. : see Gift. trust for, 402 et seq. : see Trust. Court will not alter mode of assignment for, 406, 415, 423, 430, -439, 445 conveyance to, good between parties, 316, 325, 326, 460, 464-466 limitation to, in marriage settlement, 342 et seq., 502 consideration ex post facto given by, as against creditor or purchaser, 315 et seq. date of conveyance to, confers title, 326, 475, 476 has no right to land sold on paying purchaser under 27 Eliz. c. 4: 466, 467 may redeem mortgage, 467 cannot take benefit under settlement void between parties for fraud or undue influence, 503, 504 cannot specifically enforce contract for sale, when, 315, 476, 511, 512 a party to action for specific performance, when, 514 (5736) INDEX. 651 [The paging refers to the [•] pages. ] VOLUNTEER— (continued) marshalling in favour of, when, 53.') under deed and will in same position, 536 liability of, to contribution, 535, 536 WAIVER: see Acquiescence; Delay; Laches. WARD — (see Guardian; Undue Influence) under influence of guardian while relation exists, 484, 486-488 gift or voluntary settlement by, on guardian, when voidable bv, 488, 493, 494 when not voidable by, 494 WARDSHIPS, feoffments to defeat, 322 WHOLE PROPERTY, assignment of: see Assignment; Generality. WIDOW, settlement by, on remarriage, on children or issue, 343, 346 et seq. on illegitimate children, 343. 347 et seq WIDOWER, , settlement by, on remarriage, on children or issue, 343, 346 et seq. on illegitimate children, 343, 347 et seq. WIFE — (see Equity to Settlement; Husband; Married Woman) is a purchaser, 341, 342, 358 when creditor of her husband, 165, 167 contracts of, with stranger, 281-283 with husband, 281-283, 483, 484: see Contracts. separate maintenance of, husband when liable for, 302-306 property of, when liable to ante-nuptial debts, 25, 29 husband, when liable for wife's ante-nuptial debts, 25 et seq. settlement, or agreement for, by, when now void, 30, 31, 338, 339 settlement on, of husband's property, 338, 339 post-nuptial settlement by, when for value, 284 et seq. : see Post-nuptial Settlement. separation deed between, and husband, 301 et seq.: see Separation Deed. debts of, liability for, after separation, 303-305 lands of, husband's money spent on, 293 equity to settlement of, 296 et seq. defective execution of powers supplied for, 394, 396 husband making self trustee for, 441, 442, 443 declaration of trust by, 442, 443, 444 husband's influence over, 483, 488, 491 : see Undue Influence. gift or voluntary settlement by, on husband, when voidable by, 488, 491, 492 burden of proof on, as to gift or voluntary settlement, when, 488, 492 transfer of property from husband to, whether formerly a trust, 420-422 gift from husband to, 128, 420 et seq., 442 when within Conveyancing Act, 1881: 424 how now tested, 424, 425 WILL, what is undue influence as to, 497, 498 burden of proof of undue influence as to, on whom, 497, 498 set aside wholly or in part for undue influence or fraud, 498 (5737) 652 INDEX. [The paging refers to the [*] pages.] WILL — (continued) jurisdiction of Probate Division as to, 498 confirmation of voidable deed by, 505, 506 volunteer under, in same position as if under deed, 536 WRITTEN ante-nuptial agreement for value, 368-371 . „ ra post-nuptial settlement founded on ante-nuptial agreement lor value, m>b 370 agreements on marriage must be, 371 et seq. recognition after marriage of parol contract before, 375 et seq. post-nuptial recognition, when valid by estoppel, 383 promise to reduce parol agreement to, prevented by fraud, 38b : see i akol Agriement ; Paeol Representation. WRONGS, public and private, difference as to compromise of, 311 [THE END OF SUBSCRIPTION FOR 1886-7.] (5738)